Legal Question in Employment Law in California

Once you qualify for FMLA/CRFA leave you do not have to re-qualify. For childbirth leaves, the qualification period starts at the beginning of the pregnancy leave, not at the time you are asking for baby bonding time, after giving birth, as long as you take the time within one year from the start qualification period. Based upon your post, it sounds as though your employer is wrong.

It is not clear to me from your post what you mean by �maternity leave� or that you �waited to initiate� your baby bonding time. I assume by �maternity leave� you are referring to pregnancy disability leave (i.e. your doctor certified that you were unable to work for 6 weeks immediately following the birth of your child). Under California law, (namely the California Family Rights Act (CFRA)), you are also entitled to 12 weeks of baby bonding time. Unlike in many other states, in California, the 6 weeks of pregnancy disability leave you took DO NOT count toward your 12 weeks of bonding time, which means, if you are in fact entitled to your bonding leave, you would be entitled to 6 + 12 = 18 weeks off.

I also am assuming by �waited to initiate my baby bonding time� you mean that you did not take your bonding time immediately after your 6 weeks of disability. If this is true, and your employer is saying that you do not meet the 1250 hours requirement because the 6 weeks you took off put you under 1250 hours for the year, it is not actually100% clear whether you are entitled to your bonding leave.

The law is clear that if you took your bonding leave �immediately� after the pregnancy disability leave, the 1250 hours would be calculated as of the date the disability leave began (NOT the date of the bonding leave). The law (CFRA) is also clear that you are allowed to initiate your baby bonding leave within 1 year of the baby�s birth. However, it is NOT clear whether, if you take a pregnancy disability leave and do not take your bonding leave immediately after the disability leave, and you become ineligible for CFRA during the interim, whether you are still eligible for the bonding leave.

It is arguable that your choosing not to take your bonding leave �immediately� after the disability leave should not eliminate your right under CFRA to take your bonding leave within a year of the baby�s birth, but it is certainly not absolute.

If I were you, assuming I�m understanding your question correctly, I�d point out to your employer that under the CFRA, you are allowed to initiate your baby bonding leave within 1 year of the baby�s birth, and indicate that you are exercising that right. Given that the law on this is technically not clear, the employer may want to take the safe route and give you the bonding leave rather than risk a lawsuit.

(If any attorneys out there are wondering look at 2 Cal.C.Regs. � 7297.0(e)(1),(2). The words �immediately� in (2) and �same qualifying event � in (1) make it unclear whether, where she doesn�t immediately take her CFRA bonding leave following pregnancy disability, her eligibility is determined at the time of commencement of the bonding leave. If anyone out there has authority to the contrary, please post.)