Legal Question in Medical Leave in California

FMLA after preg disability

I went on disability at 6 months of pregnancy. I am 6 weeks post partum & I believe I have 8 weeks after a C-section. I would like to take additional time w/my newborn under the FMLA, but I am being told I will not have job or benefit security after my 8 weeks are up. HR said I needed 1250 work hours in the previous 12 months to qualify (immediately preceding the commencement of leave)-which leave, disability or the FMLA? How can I have this many work hours in if I have been on disability?


Asked on 5/14/07, 3:53 pm

1 Answer from Attorneys
Michael Kirschbaum Law Offices of Michael R. Kirschbaum

Re: FMLA after preg disability

This is an interesting question which I don't think has been addressed by the courts. We know that women who suffer pregnancy-related disabilities are permitted to tack on the extra 12 weeks of FMLA/CFRA leave, even after being off for 4 months due to the disability. That is the law in California. It would seem that to penalize a woman for being disabled due to pregnancy, by not recognizing the hours worked before the disability would be discriminatory. So, my gut reaction is that the employer cannot disqualify you from FMLA/CFRA leave due to your disability.

I caution you that I haven't researched this issue, it is merely my quick opinion. You may wish to retain an attorney to take a closer look at your case before you make any hard decisions on how you want to approach this matter.

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Answered on 5/14/07, 8:00 pm


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