Compliance Steps

Step 3: Evaluate Whether Employee Is Eligible for FMLA/CFRA Leave

An employee's notice to his or her employer of the need to take time off because of his or her own disability or to care for a family member or bond with a new child "triggers" the employer's obligation to "inquire further" to learn whether the employee qualifies for FMLA or CFRA leave and, if so, to inform the employee that the leave will be a FMLA/CFRA, FMLA/PDL or CFRA leave and of any health care provider's certification requirements for these leaves. If an employee's Americans with Disabilities Act, Fair Employment and Housing Act (including PDL), State Disability Insurance or Workers' Compensation leave also qualifies under FMLA or CFRA, the employer should inform the employee of this at the time the need for leave is discussed.

For PDL leave, do you employ 5 or more employees? If so, a pregnant employee is eligible. For FMLA/CFRA, determine whether:  (a) the employee has worked for a full 12 months (e.g., 52 consecutive or non-consecutive work weeks) at any time for you; (b) the employee has worked or will have worked at least 1,250 hours in the 12 months preceding the leave start date; and (c) the employee is employed at a work site where 50 or more employees are employed by you within 75 miles of that work site. Note that the standards in (a) and (b) are measured as of the date that the leave commences, and the standard in (c) is measured as of the date that the employee gives notice of the need for leave.

If the answer to all of these questions is yes, proceed to
Step 4.

If the answer to one of these questions is no, then the employee is not eligible for PDL or FMLA/CFRA leave. Be aware, however, that an ill or injured employee may have the right to a non-FMLA/CFRA leave as a reasonable accommodation under the state or federal disability discrimination laws (although the terms of such leaves may be different than a FMLA/CFRA leave). Before you deny such leaves, consult with an experienced employment lawyer.

If the answer to one of the FMLA/CFRA questions is no, but you employ 5 or more employees, and the employee tells you she is pregnant and will need a "maternity leave" or a pregnancy disability leave, review the provisions of the PDL requirements in the Model Leave Policy and proceed to grant the PDL, without the FMLA/CFRA statutory benefits.

Note, however, that if your regular company policy provides for continuation of health and other benefits to employees temporarily disabled for reasons other than pregnancy, childbirth or related medical conditions, you are obligated to provide the same benefits to an employee disabled for these reasons, regardless of whether the pregnant employee has service that meets the FMLA/CFRA eligibility requirements, and regardless of whether you have 5 or more employees.

In other words, you must treat an employee who is temporarily disabled due to pregnancy, childbirth or related medical conditions just as you treat employees temporarily disabled due to any other condition(s), and if your policy is to provide benefits at levels higher than those mandated by FMLA/CFRA, you may not diminish benefits in any discriminatory manner, so that if you provide more than 4 months of leave for other types of temporary disabilities, the same leave must be made available to women who are disabled due to pregnancy, childbirth or related medical conditions.  Note also that parity of treatment affects whether leaves will be paid or unpaid. PDL qualifies under FMLA; if pregnant employee is FMLA-eligible, skip Step 4; read Step 5 but proceed to Step 6.

If you are in doubt about qualifications for leave, consult your employment counsel before taking any action in denying a FMLA or CFRA or PDL-covered leave.