Legal Question in Medical Leave in California

Can my employer deny the father of my child and myself to take paternity leave at the same time?


Asked on 1/03/12, 10:26 pm

1 Answer from Attorneys

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

That means you, the mother, can have such a leave, but the father would need to prove the 'serious medical need' requirement after the birth. Normal pregnancy and healthy baby does not fulfill that.

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.

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 1/04/12, 10:54 am


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