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How much maternity leave can I take without being fired??

Los Angeles, CA |

I work for a small business in CA which has about 15 employees. I am currently 28 weeks pregnant and my physician has put me on bed rest. I do not have any supplemental disability insurance and my office will give me unpaid leave. However, can I apply for disability through the state to supplement 55% of my income? Also, how much time can I take off once the baby arrives, by law? Can they fire me???

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Attorney answers 2


Let me bite off a chunk of your question. That is the part questioning your right to leave for childbirth and after. Some of that will depend on your being within the coverage of the Family and Medical Leave Act. If employers are covered by the Family and Medical Leave Act (FMLA), they must provide eligible employees with unpaid leave for the birth of a child or to care for their or a family member's serious health illness. I don't want you to assume that the FMLA does not apply here, not just yet.

Although it's commonly believed that the FMLA covers only businesses with 50 or more employees, and that a business like yours is not covered, the test is actually more complicated. Sometimes, businesses are covered even if they currently have a lot less than 50 employees, and other times they're not covered though they have more than 50 employees. So, it's not simply a matter of "counting noses."

The law says businesses are covered by the FMLA if they have 50 or more employees on the payroll for at least 20 calendar weeks, in the current or the preceding calendar year.

Here's where it gets dicey. To determine if a business has 50 or more employees, everyone working in that business must be counted, whether they are part-time or full-time, temporary, leased, probationary, or permanent; or, whether they are working in that business or in another jointly managed business. And, all employees must be counted, whether they earn wages, salaries, commissions, or any combination. (But, the FMLA does not count independent contractors as employees.)

Employees are on the payroll for an entire workweek even if they do not work each day or collect any pay for the week. The issue is whether the employees are on the payroll, not whether they work full-time or are absent from work. As long as employers reasonably expect people to return to work, they're on the payroll and must be counted.

For the FMLA to apply, businesses must have 50 or more employees for at least 20 weeks in a calendar year. The weeks need not be consecutive, but the weeks must be in a single calendar year. So, do not add weeks that fall in different years. And, as I indicated, the 50 employee point need be reached only once in the last 2 calendar years. Businesses that use a lot of seasonal employees in the summer or at the holidays sometimes come under the FMLA even though there are longer periods each year where they do not have many employees at all.

After taking a FMLA leave, employees are entitled to return to their same or a similar position, with equivalent duties, pay, benefits, working conditions, assignments, privileges, status, and authority.

Hope this helps. Hope others will address other parts of your inquiry.

Good luck with the little one.


I will take the reverse point of view as Mr. Tonsing and assume you are not eligible for FMLA because there are fewer than 50 employees in your company. Based on that assumption, under California law, you make take up to four months off for a pregnancy related disability. The leave may be taken intermittently, if medically feasible. The leave is without pay, although you may exhaust any sick and vacation pay benefits you have earned. Also, if you meet the criteria, you may be eligible for state disability through the EDD, which pays a portion of your wages for the period of time you are unable to work due to a disability. Make sure your doctor adequately provides the necessary documentation to support the reason you cannot work.

Unfortunately, if you do not qualify for FMLA/CRFA leave, you are not entitled to take baby bonding time off. Once you are medically released to return to work, the employer may require you to do so in order to keep your job.

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.

Michael John Tonsing

Michael John Tonsing


Thanks. Right. Thumbs up. Thanks for addressing the other possibilities. Mike

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