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My job doesn't offer maternity leave. What are my options?

San Diego, CA |

My job doesn't offer any type of insurance or maternity leave. We have about 25 employees and I have read a little about the law that California passed but I thought I read in order to be covered the company has to have at least 50 employees. What are my options? Can I collect short term disability and for how long. I will be having a c-section due to complications with my first child. Its really stressful and I am the first one at my job to go on maternity leave so they are just as clueless as me. So, I just basically want to know what my rights are as an employee. Thanks!!

Attorney Answers 5


  1. You should consult with an attorney. While your employer may not be covered under FMLA or CFRA, you are protected under the California Fair Employment Housing Act.


  2. Your title is a little misleading because your employer has no choice but to offer maternity leave if you need to take time off for pregnancy related disabling conditions. In fact, it must allow you to take up to four months off, if necessary. You may be referring to the FMLA/CFRA which requires employers of 50 or more employees to allow a qualified employee to take an additional 12 weeks off for maternity leave and/or baby bonding time. However, under either law, the employer is not required to pay the employee's wage, beyond any accrued sick or vacation time the employee has earned.

    You should be able to qualify for benefits from the EDD while you are unable to work due to your pregnancy. Check with them for more information.

    Congratulations, by the way.

    They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.


  3. Your company must provide you with maternity leave. It cannot simply tell you that you cannot take leave. However, it is not required to pay you on that leave. However you should be able to get some compensation through State Disability Insurance.

    The California Pregnancy Disability Leave Law (PDLL) provides that your employer is required to provide you with up to four months of leave that can be taken all at once or in smaller increments. At the conclusion of the PDLL you must be reinstated to the same position.

    If you must take time off before you would normally do so for the pregnancy, or if you cannot come back when you normally would have after the pregnancy because of a temporarily disabling condition, then additional leave should be granted as a reasonable accommodation under the Fair Employment and Housing Act if granting that leave would not be an undue hardship on the employer.

    All of the leave discussed above is unpaid by the employer. However, if your doctor determines you are temporarily disabled by some complication of the pregnancy you can qualify for State Disability Insurance payments, and California law provides for payments from the State Disability Fund for wage loss of employees who take time off work to bond with a new child.

    Good luck to you and congratulations to you on the little one on the way!

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.


  4. My colleagues are correct, I just wanted to add that you are entitled to EDD disability pay up to 4 weeks before your due date and between 6 to 8 weeks after you deliver (8 weeks if you have the c-section). As others mentioned, you may be entitled to more pay if you are disabled due to pregnancy, e.g. put on bedrest more than 4 weeks before your delivery. Good luck and congratulations!

    The answer provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter. Neither the transmission of the information contained in this answer nor your use of the information creates an attorney-client relationship between you and Pierce & Shearer LLP. An attorney-client relationship can only be created by the mutual assent of both parties and only after a consultation. Pierce & Shearer LLP cannot agree to be retained as counsel until a conflict-of-interest check is completed and a written engagement and fee agreement provided by Pierce & Shearer LLP is signed by you and a Pierce & Shearer LLP attorney.


  5. Congratulations on your growing family!

    Even with less than 50 employees – the minimum number for family leave rights to apply, you have other rights.

    FEDERAL RIGHTS: In 1978, Congress amended the Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17, by passing the Pregnancy Discrimination Act.

    Under the Pregnancy Discrimination Act, "discrimination" means to treat a pregnant employee differently from non-pregnant employees, and adversely. The employee must be able to make a connection between the discriminatory treatment and the protected status (being pregnant). In other words, the employee will have to show that her pregnancy is reason the employer is treating her adversely. There are various ways to do this. Negative comments from supervisors or management; a sudden change in treatment (for the worse) as soon as or shortly after the employer learns about the pregnancy or the effects of pregnancy; or other incriminating conduct. Note it is not unlawful for an employer to apply the same leave of absence policy to pregnant and non-pregnant employees.

    For information on pregnancy discrimination, see:
    http://eeoc.gov/laws/types/pregnancy.cfm

    For information on the Pregnancy Discrimination Act, see:
    http://eeoc.gov/laws/statutes/pregnancy.cfm

    This law is enforced by the Equal Employment Opportunity Commission (EEOC). www.EEOC.gov

    CALIFORNIA RIGHTS: California employers must comply with federal law, as above, and also must comply with state law. The California pregnancy disability leave law, Government Code section 12945(a) (PDLL), is part of the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA). The PDLL requires employers to provide employees up to four months of unpaid leave for disability caused by pregnancy, childbirth or a related medical conditions.

    Under some circumstances, an employer may be required to transfer an employee affected by pregnancy, childbirth or related medical conditions to a different job.

    And pregnancy discrimination is unlawful under California and federal law. Please look at my guide to unlawful discrimination: http://www.avvo.com/pages/show?category_id=6&permalink=what-is-unlawful-employment-discrimination--california-law which should help you understand lawful and unlawful discrimination, how to enforce your rights, and time limits.

    Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

    @MikaSpencer * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and must not be taken as legal advice. Legal advice must pertain to specific, detailed facts which are impossible to gather on a public web site like Avvo. * * * No attorney-client relationship is created based on this information exchange. * * *

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