Legal Question in Medical Leave in California

I am 8 months pregnant. I want to take my week vacation, then 2 weeks of disability before the baby is born. After the baby is born, since I'm having a c-section I qualify for 6 weeks of disability. I also want to take as much time as possible, so does that mean I can also qualify for the 12 weeks of FMLA? (In other words, can I take the 6 weeks of disability plus 12 weeks of FMLA?)


Asked on 2/06/12, 12:24 pm

2 Answers from Attorneys

Michael Kirschbaum Law Offices of Michael R. Kirschbaum

Assuming you meet all the eligibility requirements, yes, you can take up to 12 weeks of FMLA leave for baby bonding time, on top of the 2 weeks for disability leave under the Fair Employment and Housing Act. Just make sure your doctor will certify a pregnancy related disability for the time before birth.

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Answered on 2/06/12, 3:22 pm
Terry A. Nelson Nelson & Lawless

If your CA employer has at least 5 employees, they can not fire you because you are pregnant, must allow you to continue working as long as you are able, must 'reasonably' accommodate your disability, must allow up to 4 months of unpaid pregnancy leave under FEHA, and return you to the same or an equivalent job upon return to work, with accrued benefits.

If your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA / CFRA maternity / medical leave when you are unable to work [or must care for an immediate family member] because of a ‘SERIOUS health condition’ [that is properly confirmed and documented by the doctor], continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The employer can require you to use all accrued unused vacations and leave[s] as part of the 12 weeks, so as to make that portion 'paid'. The leave may be taken on reasonable intermittent basis if that need is properly documented by your medical provider. Being out sick with minor illness or injury does not fall within the protections.

If your employer has a written policy requiring they hold your job for you for a specific period of time while on disability, longer than the FMLA / CFRA rules provide, that is enforceable.

If you qualify for both, you get both. If you are out longer than those guarantees, they can terminate you.

When you are released to return to work, IF within the leave time limits, an employer is not allowed to "discriminate" against a legally defined "disability" by any adverse employment action like termination, demotion, harassment, hostile environment, etc. An employer is obligated to provide 'REASONABLE' accommodation of a legally recognized life altering disability upon proper medical certification of your disability and specific medical requirements necessary to accommodate you, IF accommodation can be done without substantial burden to the company, and IF such accommodation will allow you to still perform ALL the essential functions of your job. Violation and failure to accommodate is grounds for a lawsuit. Every case is determined upon its merits and all the facts. If you think you can prove they failed to do so under those rules, feel free to contact me.

Overriding those stated protections, just because you are on leave does not mean you can’t be terminated. You have no special exemption against lay offs or termination due to business reasons. A company in downsizing can lay off a FMLA / CFRA leave person, as long as they can show they aren’t targeting ‘because of the leave’. They are simply risking claims if they do.

Upon termination from employment, you are entitled to COBRA conversion of your medical benefits [if any], allowing you to pay for and retain your insurance coverage.

Now, if they violated those rules, contact me for the legal help you'll need. I'll be happy to do so. I've been doing these cases for over 20 years.

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Answered on 2/06/12, 3:30 pm


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