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Can I get fired for taking 6 wks of Paid Family Leave for bonding with new baby? Would I be eligible for UI after PFL ends?

San Diego, CA |

My company has less than 50 employees, therefore not covered under FMLA. I plan to take 6wks postpartum PDL then take 6 more wks using PFL. I am required to request specific time off for my PDL, but am I required to inform employer of my intention to take PFL? Or, would that be proper reason for layoff after PDL ends?

Attorney Answers 3


  1. Under California law, an employee working for an employer with five or more employees who is disabled by pregnancy is entitled to up to four months disability leave. You said your employer has less than 50 employees but does it have five or more? If so, you are entitled to more than 6 weeks time off.

    Please also not that if an employer provides more than four 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 a related medical condition.

    Finally, if you are terminated because of taking pregnancy leave that would likely be pregnancy discrimination and retaliation. And your employer generally has an obligation to return you to the same position unless it is not available or there have has been a business downturn i.e. mass layoffs, etc.


  2. Under the new regulations for pregnancy disability, you are allowed to ask for a written guarantee that you will get your job back when you return. Go here for more info.

    www.dfeh.ca.gov/res/docs/publications/DFEH-186.pdf

    Congratulations. May you enjoy this time of great joy without fear of job loss.

    David Mallen

    David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.


  3. This is a very tricky area that often is not handled properly by human resources. There are a couple of things that you should know. First, Pregnancy Disability Leave ("PDL") entitles you to up to four months of protected leave, assuming that your doctor finds that you are actually disabled due to pregnancy or childbirth. The previous poster correctly pointed out that PDL applies if your employer has 5 or more employees.

    You cannot always request a specific time off for PDL because your medical provider may not know how long your disability will last, but before going out on PDL you would generally need to provide paperwork from your doctor confirming your disability. Your doctor can then extend your leave as needed.

    Paid Family Leave (PFL) has nothing to do with job security. It is simply a way for you to get paid during "baby bonding." You should not be required to advise your employer that you are applying for it unless you have private insurance coverage through your employer (check your policy). PFL is administered by the California EDD just like Short-Term Disability Insurance (SDI) and Unemployment Insurance. You can apply for SDI benefits if you are disabled due to your pregnancy and continue staying on SDI if you are disabled after the birth of your child (which hopefully is not the case). Once you are no longer disabled you can apply for PFL for up to 6 weeks. However, being on SDI or PFL does not alone protect your job (although you may still have a discrimination case depending on the circumstances).

    The only likely effect of your employer not being FMLA/CFRA eligible is that you will only be permitted to take four months off (under PDL) instead of seven months off (PDL+CFRA).

    The bottom line is that you should get in writing what your employer's policy is regarding leave due to pregnancy/childbirth. If you believe that their policy is incorrect, you should let them know immediately.

    Best of luck to you, and congratulations

    Benjamin Davidson
    Law Offices of Benjamin Davidson, P.C.
    (213) 531-7010
    bdavidson@bendavidsonlaw.com

    Disclaimer: This reply does not constitute legal advice or the establishment of an attorney-client relationship, and constitutes only general guidance based on the limited information provided, and may not take into account additional relevant facts and circumstances pertaining to your specific situation.

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