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California Employment Law

My wife is about to go on her maternity...

Resolved • Response time -10 hours -28 minutes

3 Jan 2013

My wife is about to go on her maternity leave. We're trying to figure out how to combine all the leave programs in the best way. Here's the question: FMLA runs concurrently with pregnancy disability (4+6 weeks) and PDL (6 weeks). But FMLA only runs for 12 weeks, not 16. So, there will be a gap of 4 weeks not covered by FMLA. How can this be avoided? Thank you!
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3 Jan 2013

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California Employment Lawyer's response
3 Jan 2013
RESPONDER9
RESPONDER9
Thank you for your question and congratulations on the happy news. The new law in effect now allows up to a 29 1/3-week maximum assuming that both the PDL (17 1/3 weeks) and CFRA(California Family Rights Leave Act) baby-bonding leave (12 weeks) are taken continuously. The actual period of a PDL or CFRA leave may vary depending on how the leave is calculated and administered, because an employee's use of intermittent leave may change the total number of weeks of continuous leave to which she is entitled. So it seems if eligible, she can take a healthy leave under California law. I hope this helps and best wishes for happy new year. Of course your positive rating is needed, after you read this, or I will not be paid so please do not forget this.
3 Jan 2013
Customer reply
3 Jan 2013
Thanks for you answer but you did not address the FMLA gap. When should my wife take FMLA to make sure her position and benefits will be protected throughout the 29 1/3 weeks?
3 Jan 2013
California Employment Lawyer's response
3 Jan 2013
RESPONDER9
RESPONDER9
The best way to proceed is to inform the employer she wishes to take the maximum leave starting with PDL(17 and 1/3 weeks max) which is more than FMLA. Then at childbirth, tell them she wishes CFRA baby bonding leave wish is 12 weeks max.
3 Jan 2013
Customer reply
3 Jan 2013
We're NOT HAPPY with your response. The maternity leave starts this Friday and HR was informed a couple of times. Please give us a good advise! From reading state disability websites we know we have 88 days plus CFRA. The question was - how to ensure the job is protected during these 7 months? Today HR informed that disability ends the same day as the expected delivery day and then CFRA should be taken. We know it's now true. We need a good explanation on how to combine PDL/FMLA/CFRA to get maximum job protection and maximum days. Thank you
3 Jan 2013
California Employment Lawyer's response
3 Jan 2013
Brandon, Esq.
Brandon, Esq.
Senior Counsel
Hello. Another expert here. If anything about my response is confusing, please do not hesitate to tell me and I will be happy to clarify. To get the guaranteed maximum out of maternity leave, you will want to use PDL (Pregnancy Disability Leave Law) and FMLA (Family Medical Leave Act) with SDI (State Disability Insurance) before the baby is born, and you will want to use CFRA (California Family Rights Act) and PFL (Paid Family Leave) after the baby is born. PDL and FMLA will protect your job before the baby is born, and SDI will provide you with partial pay during her leave. After the baby is born, CFRA will protect her job, and PFL will provide partial pay. This will result in 29 1/3rd weeks of leave without putting her job in jeopardy. In short, she will receive FMLA and PDL Leave concurrently until the baby is born, then when the baby is born, she will receive PDL for up to an additional 5 1/3rd weeks, or as long as she can get certification from her treating physician, and then she will receive an additional 12 weeks under the CFRA. In the case of a normal pregnancy, pregnancy related disability under PDL usually begins as early as four weeks before your expected delivery date, and ends six weeks after your delivery date. If she delivers her baby with a cesarean section, she may be eligible for an additional two weeks of PDL allowing for 8 weeks of PDL after the birth of your child. Whether it is more important to get the maximum amount of time, or the maximum amount of time after the baby is born, is entirely up to you Concerning the previous experts responses, depending on the circumstances, she may be entitled to 29 1/3rd weeks of leave, but this is not guaranteed. The actual duration of a PDL or CFRA leave may vary depending on how the leave is calculated and administered, because an employee's use of intermittent leave may change the total number of weeks of continuous leave to which she is entitled. The 29 1/3-week maximum assumes that both the PDL (17 1/3 weeks) and CFRA baby-bonding leave (12 weeks) are taken continuously after the baby is born. Generally, CFRA and FMLA run concurrently for a total of 12 weeks of leave. However, CFRA excludes pregnancy-related conditions. This is why it is better to us CFRA after the birth of your child and FMLA before because CFRA applies to newborn bonding time, but not to the pregnancy disability portion of your leave, allowing your CFRA and FMLA to not overlap. Unfortunately, PDL and FMLA run concurrently for pregnancy related disability, while CFRA can be taken after your PDL leave for bonding purposes. Thus, you have to decide if you want a guaranteed 12 weeks before the baby is born and a likely few weeks after, or a possible 17 1/3rd weeks (88 days) after the baby is born before the CFRA kicks in. With PDL you can get up to 4 months (88 days) for complications, severe morning sickness, or other disabilities related to pregnancy, childbirth, or a related medical condition, but you will need to be certified by your health care provider. What this means is that the 4 months is not absolute. Her employer may require a certification from her treating physician showing her disability. In short, PDL does not run concurrently with CFRA; they are two separate and distinct rights. Therefore, at the conclusion of PDL, the employee is still eligible to take up to 12 workweeks of CFRA leave to the extent that CFRA leave has not previously been used in the 12-month period. If there are any problems along the way with the process, you can contact a local employment attorney, or the Legal Aid Society Employment Law Center and they should be able to help you with any problems with your employer. The Legal Aid Society’s number is XXX-XXX-XXXX. If you decide to hire an attorney, a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys prior to selecting the one you feel most comfortable with. Hopefully this clears things up for you. If not, please do not hesitate to ask.
3 Jan 2013
Customer reply
3 Jan 2013
thank you, but can you please explain how to run PDL and PFL (total 16 weeks) plus CFRA (12 weeks) afterwords? this gives 28 weeks max, this is what all internet resources state. if we run FMLA with PDL and PFL with CFRA we loose a solid amount of weeks. Can we avoid it and have full 7 months?
3 Jan 2013
California Employment Lawyer's response
3 Jan 2013
Brandon, Esq.
Brandon, Esq.
Senior Counsel
PFL provides you income replacement while on leave. It does not guarantee job protection during your leave. Are you sure this is what you meant? Is the issue how to get the most amount of money? Or how to make sure that your job and health insurance are completely safe?
3 Jan 2013
California Employment Lawyer's response
3 Jan 2013
Brandon, Esq.
Brandon, Esq.
Senior Counsel
In direct response to your question, you would take PDL for as long as you can get certification from your health care provider that your wife is unable to work as a result of her pregnancy (up to 88 days). Then, when your doctor can no longer certify this, you would take CFRA leave to bond with the newborn child (12 weeks). During this time (which is unpaid) you would apply for PFL which would provide you with income replacement. This would give you up to six weeks of partial pay (55% of your weekly wage up to a maximum benefit) However, PFL does not guarantee her job, nor her medical benefits. She would request an application at this time by contacting the Employment Development Department (EDD) at XXX-XXX-XXXX or going to www.edd.ca.gov to order an application online.
3 Jan 2013
Customer reply
3 Jan 2013
the issue is to get the maximum amount of time and have the job protected during all leave
3 Jan 2013
California Employment Lawyer's response
3 Jan 2013
Brandon, Esq.
Brandon, Esq.
Senior Counsel
Does my last response make sense? As to where FMLA fits in, it could be taken at any time, but it will run at the same time that the CFRA leave is running, so it will not actually grant any additional time once the child is born. As to being protected, you would be protected under FMLA and PDL, and then you would be protected under FMLA and CFRA if PDL is not certified, or just CFRA if the PDL lasts longer than 12 weeks.
3 Jan 2013
California Employment Lawyer's response
3 Jan 2013
Brandon, Esq.
Brandon, Esq.
Senior Counsel
Thus, PDL CFRA and FMLA protect her job, while SDI and PFL pay her during her leave, but don't actually offer any protection. If any of this is confusing, please do not hesitate to ask and I will be happy to clarify.
3 Jan 2013
Customer reply
3 Jan 2013
can you point me please to the law which confirms that the job is protected by PDL?
3 Jan 2013
California Employment Lawyer's response
3 Jan 2013
Brandon, Esq.
Brandon, Esq.
Senior Counsel
§ 7291.10(c)(2). A detailed discussion about this can be found here: http://www.wsgr.com/WSGR/Display.aspx?SectionName=publications/PDFSearch/wsgralert-california-pregnancy-leave-changes.htm#7 I apologize, but the website is not allowing me to provide a clickable link at the moment. If you have trouble cutting and pasting the link into a browser please tell me and I will do my best to figure out a way to best assist you.
3 Jan 2013
Customer reply
3 Jan 2013
this is really helpful. I appreciate your answers
3 Jan 2013
California Employment Lawyer's response
3 Jan 2013
Brandon, Esq.
Brandon, Esq.
I am Glad that I could assist you today. I hope I have provided you excellent service. If I have fully answered your question, please do not forget to provide me with a positive rating by clicking on one of the happy faces, or I will not receive any credit for my time in trying to assist you. Please keep in mind that even after a rating has been issued you can continue to ask questions related to the original post and I will be happy to answer them. If for some reason the rating feature is not working or you cannot find it, please write me back and let me know. Please remember that when you are asked to give a rating, you are rating My Service and not this website itself or the law as it applies to your case. Have a wonderful start to 2013.
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Brandon, Esq.
Brandon, Esq.
Senior Counsel
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3 Jan 2013
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