Legal Question in Medical Leave in California

I work in Costa Mesa, CA for an insurance company & I am very confused about how much time off I am legally entitled to due to preganacy related issues. I was placed on a leave of absence of 8 weeks by my doctor due to severe morning sickness (at approx 12wks). I submitted paperwork for a leave of absence with my employer which was approved. I was informed by my employer that the 8wks taken, will lessen the amount of time that I will have off once I give birth & that amount cannot be determined until I do. But they estimated approx 2mos which would be that 6-8wks post partum recovery time. Under California law, am I legally entitled to 4 months under Pregnancy Disability and 12 weeks under FMLA? Since I have only taken 8wks, can I still use 2mos under FMLA & up to 4mos under PDL if signed off by my doctor. Can those run consecutively & my job be protected? How about CFRA?

Thank you in Advance for any assistance,

Shelly


Asked on 3/21/10, 5:09 pm

1 Answer from Attorneys
Terry A. Nelson Nelson & Lawless

If and when you are denied legally protected leave, or are illegally discriminated or retaliated against because of requesting or taking the leave, or you are refused accommodation, then you can consider legal claims.

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, and must allow up to 4 months of unpaid pregnancy leave under FEHA.

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 your doctor, continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The leave may be taken on reasonable intermittent basis if that need is properly documented by your medical provider.

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

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 leave person, as long as they can show they aren�t targeting �because of the leave�. They are simply risking claims if they do.

If your company has a policy requiring they hold your job for you for a specific period of time while on disability, that is enforceable.

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 3/26/10, 5:26 pm


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