SECTION 8: PREGNANCY DISABILITY LEAVE (PDL)
Pregnancy Disability Leave (PDL) is available to female employees who become disabled due to pregnancy, childbirth, or related medical conditions. The PDL, FMLA, and CFRA all interact when an employee takes leave due to pregnancy. PDL provides up to a maximum of four months of disability leave per pregnancy.
FMLA runs concurrently with PDL. PDL and CFRA leave cannot run at the same time but can run consecutively. CFRA leave does not cover pregnancy. CFRA covers care of a newborn and placement of a child for adoption or foster care. In most situations, an employee may use accrued time concurrently with PDL, FMLA and/or CFRA, which may make them eligible for the full County cafeteria plan contribution or subsidy.
Eligibility
There is no length of service or hours-worked requirement for PDL. To qualify for PDL, an employee must be “disabled by pregnancy,” which means that a health care provider must certify that the employee's pregnancy or a related medical condition makes her unable to perform one or more of the essential functions of her job, without undue risk to herself, the successful completion of her pregnancy, or to others or that she is suffering from severe morning sickness, or that she needs to take time off for prenatal care.
Length of PDL
A qualified employee must be provided a maximum of four months of PDL leave, as needed, for the duration of time an employee is disabled by pregnancy.
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Four months leave means the equivalent of the number of days an employee would normally work in four months.
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FMLA leave runs concurrently with PDL, but CFRA leave does not. CFRA leave starts when PDL ends. This means that an eligible employee can take additional leave under CFRA for baby bonding once she exhausts her entitlement to PDL.
Providing Accommodations
An employer must provide a reasonable accommodation to an employee affected by pregnancy, childbirth or related medical condition (including lactation), if the employee so requests, based on the advice of her health care provider. Departments may refer to the Return to Work Desk Reference Manual for specific guidance on the reasonable accommodation process. This may include a temporary transfer to an alternative job that better meets the employee's need, with equivalent pay and benefits if:
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The employee's request is based on the certification of her health care provider that a transfer is medically advisable
and
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The transfer can be reasonably accommodated by the County (the employer is not required to create a job or transfer another employee).
If a woman's health care provider determines that it is medically advisable for her to take intermittent leave or have a reduced work schedule based on foreseeable planned medical treatment, then the employer may require the employee to temporarily transfer to an alternative position that better accommodates the schedule if it has equivalent pay and benefits. Transfer may include temporarily altering an existing position to accommodate the employee's need.
The employer and employee should meet to identify and implement any reasonable accommodation. The employer should respond to a request for reasonable accommodation or transfer as soon as possible, but in no event later than ten (10) calendar days after receiving the request.
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Consult with your Departmental Human Resources Office or Chief Executive Office, Risk Management Branch regarding the reasonable accommodation process.
Benefits an Employer Must Provide to an Employee on PDL
An employer is required to pay for group health coverage for an employee on PDL on the same conditions coverage is provided when the employee is not on leave. An employee on PDL is entitled to accrual of seniority and to participate in other benefit plans to the same extent and under the same conditions as would apply to CFRA and FMLA. An employee may elect, at her option, to use any accrued time off that the employee is otherwise eligible to take during the unpaid portion of her PDL.
Job Protection While on PDL
After a PDL leave or transfer to an alternate job, an employee is required to be returned to the same position she held prior to her leave or transfer and the employer should confirm this in writing if requested by the employee. The employee may be reinstated to an available comparable position only if the same position is no longer available due to business reasons unrelated to the PDL leave or transfer, such as a workforce reduction or layoff. The comparable
position must be virtually identical in terms of pay, location, job content, and promotional opportunities; involve the same or substantially similar duties; and entail substantially equivalent skill, effort, responsibility, and authority. An available position is one that is open on the employee's scheduled date of reinstatement or within 60 calendar days.
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Extreme
caution must be taken before placing an employee in an
alternative position. It is highly recommended that departments contact their Departmental Human Resources Office or Chief Executive Office, Risk Management Branch under these circumstances.
If an employee takes pregnancy related leave for longer than the four months provided by the PDL, the department must treat the employee in the same manner it treats other similarly situated employees who have taken a similar length of disability leave and is subject to the same notification and certification standards pursuant to the department's attendance policy.
Employee's Obligations Regarding PDL
An employee must provide, at minimum, a verbal notice of her need for pregnancy disability leave, reasonable accommodation or transfer and must notify the employer of the anticipated timing and duration of the leave, reasonable accommodation or transfer. If the need for leave, reasonable accommodation or transfer is foreseeable, the employee must provide 30 days advance notice; otherwise the notice must be give as soon as possible.
When the need for leave, reasonable accommodation or transfer is foreseeable, the employee shall consult with the employer and make a reasonable effort to schedule any planned medical treatment in a manner which would minimize disruption to the employers operation, subject to the approval of any health care provider.
Employer's Obligations Regarding PDL
The employer must inform the employee in advance of any notice requirement or lose the right to enforce it.
The employer must respond to a PDL request as soon as possible, but no later than 10 calendar days after receiving the request. However, if FMLA and PDL run concurrently, the employer must respond to the leave request within five business days.
If an employee's health care provider releases her to return to work early from PDL leave than previously certified, the employer must reinstate her within two business days.
Medical Certification, Recertification and Return to Work Requests for PDL
As a condition for granting a pregnancy disability leave or transfer, the employer may require medical certification from the employee, if such certification is required from other similarly situated employees and the employee is notified of this requirement and the consequences of failing to provide the medical certification. If a certification is not received, the leave will be subject to the departmental attendance policy and the employee will not be in a job protected status while on leave nor have a right to return to work.
The certification should provide only the following:
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The date on which the employee became disabled due to pregnancy or the date on which a reasonable accommodation or transfer became medically advisable
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The probable duration of the period(s) of disability
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The date on which the need for reasonable accommodation or transfer
became medically advisable and the estimated duration of the reasonable accommodation or transfer
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A statement that, due to the disability, the employee is unable to perform one or more of the essential functions of her position without undue risk to herself, to the successful completion of her pregnancy, or to other persons, or that a reasonable accommodation or transfer is medically advisable
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A description of the requested reasonable accommodation or transfer
Unlike the FMLA and CFRA, a second or third medical opinion may not be requested to certify pregnancy. A medical recertification may be requested upon expiration of the time period provided by the health care provider.
As a condition of an employee's return from pregnancy disability leave or transfer, the employer may require that the employee obtain a release to return to work from her health care provider stating that she is able to resume her original job duties only if the employer has a uniformly applied practice or policy of requiring such releases from other similarly situated employees returning to work after a non-pregnancy related disability leave or transfer.
In all cases, certification may be requested only if the employer has a uniformly applied practice or policy of requiring such release from other similarly situated employees.
Interaction of PDL, FMLA and CFRA Leaves
If an employee is eligible under PDL and FMLA, both leaves will run concurrently. If the employee is also eligible for CFRA, it will run consecutively with PDL.
EXAMPLE
Jennifer
is pregnant and requests to take 20 weeks (5 months) of leave, from January
1 to
May 8. She is eligible for PDL, FMLA, and CFRA leave and her physician
has certified her
as disabled due to her pregnancy from January 1 to February 26 (8 weeks).
Jennifer has not
taken PDL, CFRA, or FMLA leave in the last 12 months immediately preceding
her leave.
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FMLA and PDL - Starting January 1, Jennifer will be placed on FMLA and PDL concurrently. Since she is entitled to a maximum of 12 weeks under FMLA, her FMLA leave will run from January 1 through March 31. While she is entitled to a maximum of four months under PDL, her PDL will run for only 8 weeks because her physician has certified her as disabled due to her pregnancy from January 1-
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She delivered her baby on January 16 and had six weeks to recover that
ended on February 26.
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CFRA leave On February 27 Jennifer will no longer be entitled to PDL and requests to take time off to bond with her newborn child. Since CFRA leave runs consecutive to PDL, she will be entitled to CFRA leave effective February 27. Jennifer is entitled to a maximum of 12 weeks of leave under CFRA. Since Jennifer has a leave balance of 4 weeks available under FMLA, FMLA and CFRA will run concurrently for 4 weeks (February 27 through March 31). Thereafter, the remainder of her leave will be covered under CFRA (April 1 through May 8).
PREGNANCY DISABILITY ILLUSTRATION
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Jan. |
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Feb. |
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March |
April May |
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PDL (8 weeks) Jan. 1 to Feb. 26 |
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FMLA (12 weeks) Jan 1. to March 31. |
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CFRA (12 weeks) Feb 27-May 8 |
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PDL,
FMLA, and CFRA mandate the continuation of health |
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Intermittent PDL
Leave may be taken intermittently or on a reduced work schedule when medically necessary, as determined by the health care provider.
If a female employee's health care provider determines that it is medically advisable for her to take intermittent leave or have a reduced work schedule based on foreseeable planned medical treatment, then the employer may require the employee to temporarily transfer to an alternative position that better accommodates her period of leave, if it has equivalent pay and benefits. Transfer may include temporarily altering an existing position to accommodate the employee's need for intermittent leave or a reduced work schedule. The same requirements are true under FMLA.
PDL Posting Requirement
Departments must provide notice to their employees of the right to request pregnancy disability leave or transfer. This requirement is satisfied by posting the notice, “Notice B” Family Care and Medical Leave and Pregnancy Disability Leave, DFEH-100-21 (11/12), in a conspicuous location where employees tend to congregate (e.g. Human Resources office, employee lobby, break rooms, etc.). The Department must also give the employee a copy of the notice as soon as possible after the notification of the employee's pregnancy or sooner if she inquires about reasonable accommodation, transfer or pregnancy disability leaves. The County Employee Handbook also provides notice of a female employee's right to pregnancy disability leave.