Just a couple weeks shy of one year at your job? FMLA and CFRA are retroactive

Here’s a common scenario: Pregnant Pam doesn’t qualify for FMLA or CFRA when she starts her maternity leave 4 weeks before Little One’s due date, but while on leave she’ll reach her one-year work anniversary. Will she qualify for FMLA and CFRA at that point and be able to exercise those benefits? YES, she will!!

A group of very happy people isolated on white background

FMLA and CFRA are sneaky little bastards. They never fail to mention that in order to qualify for both laws you need to have worked for at 12 months and have worked at least 1,250 hours, but they don’t make it obvious that eligibility can be retroactive. That’s right, retroactive!

FMLA has always allowed for retroactive eligibility, but it’s not common knowledge because it’s noted waaaaay down at the bottom of the regulations. Bastard. (Full text on FMLA regulations here. Retroactive bit is regulation 825.110, paragraph (d).)

But, in all fairness, since FMLA and Pregnancy Disability Leave (a state law that provides employees the right to take job-protected unpaid leave for a pregnancy-related condition; and its eligibility is not dependent on how long you’ve worked at your company nor number of hours you’ve worked) run concurrently, you’re essentially getting the same benefits/job protection on PDL as you would FMLA.

Retroactive eligibility for CFRA is actually new. The California Fair Employment and Housing Council recently issued amendments to CFRA, which will go into effect on July 1, 2015, and one of the revisions is exactly that: an employee who was not eligible for CFRA leave at the start of a leave, can become eligible while they are on leave.  The actual amendment to the law is:

If an employee is not eligible for CFRA leave at the start of a leave because the employee has not met the 12-month length of service requirement, the employee may nonetheless meet this requirement while on leave, because leave to which he/she is otherwise entitled counts toward length of service (although not for the 1,250 hour requirement). The employer should designate the portion of the leave in which the employee has met the 12-month requirement as CFRA leave. For example, if an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g. workers’ compensation, group health plan benefits, etc.), the week counts as a week of employment. (Full text on the new regulations is here.)

HR staff should be aware of these changes to CFRA, but it’s definitely worth noting as you finalize your maternity leave timeline so you don’t get gypped. Because if you’re messin’ with my maternity leave, you’re messin’ with my emotions!

There are other important updates to CFRA worth mentioning. Stay tuned for a post on that soon!


Not eligible for FMLA/CFRA: What to do?

UPDATE: This post has been edited to reflect 2018 updates to CFRA eligibility requirements, as well as increased benefit amounts for SDI and PFL.

Maternity leave in the United States already sucks as it is, but what do you do if you don’t qualify FMLA or CFRA? Currently, to be eligible for FMLA or CFRA you need work for an employer with over 50+ or 20+ employees, respectively. Further, both laws are only applicable to those who have been at their current employer for at least one year, and have clocked in at least 1,250 hours of work within the past year. So, what happens to employees who work at small companies or are new(ish) to their jobs? They don’t qualify. Lame!

But, have no fear, even without FMLA and CFRA, you will be entitled to some level of job-protected and paid maternity leave.

First off, in the context of maternity leave in California – don’t worry about FMLA. FMLA is – more or less – irrelevant in California since Pregnancy Disability Leave (PDL) supersedes FMLA. So, even if you don’t meet the FMLA eligibility requirements, you are eligible for PDL as long as you are a California employee who works for an employer with 5+ employees. There is no additional eligibility requirement for PDL, such as minimum hours worked or length of service. Thanks California for looking out for pregnant mommas!

To cut to the chase, here’s what a PDL-only eligible timeline for a typical, uncomplicated pregnancy and vaginal childbirth looks like.

Screen Shot 2018-03-01 at 2.57.44 PMThe “Disability” portion of your leave

Let’s start by talking about the disability portion of your leave as highlighted below…

Screen Shot 2018-03-01 at 1.56.05 PM

PDL starts the first day of your disability (aka when your maternity leave starts), and provides up to 17.3 weeks of unpaid job protected leave for the purpose of pregnancy, childbirth, and other related conditions. You don’t automatically get all 17.3 weeks of leave. The actual duration of your PDL must be certified by your doctor, but the “default” duration of PDL for a healthy, uncomplicated pregnancy/childbirth is 4 weeks before birth and 6 weeks after for a vaginal delivery or 8 weeks after for a c-section. Should you have any complications during pregnancy (i.e. high-risk issues, preeclampsia, bed rest, etc) or post birth (physical issues, postpartum depression, etc), your doctor can certify an extension(s) beyond the “default” duration.

While PDL provides unpaid job protection for the duration you are “disabled” by pregnancy and childbirth, you may be eligible to receive wage replacement of either 60% or 70% of your normal weekly wage through State Disability Insurance (SDI). To be eligible for SDI benefits, you must have earned at least $300 from which SDI deductions were withheld during a previous “base period.”  Read this post for more information on the base period and how SDI is calculated.

The “Bonding” portion of your leave

Now, we come to the unfortunate, tricky part of being only PDL-eligible….the “bonding” portion as highlighted below.

Screen Shot 2As comparison, here’s what a PDL/FMLA + CFRA eligible timeline for a typical, uncomplicated pregnancy and vaginal childbirth looks like.

FMLA CFRA eligible

Typically, when a mother is eligible for CFRA, following PDL/SDI she is entitled to an additional 12 weeks of unpaid job-protected leave for the purpose “bonding” with the baby. During these 12 weeks of CFRA, you can get 6 weeks of partial pay though Paid Family Leave (PFL) and the remaining 6 weeks are unpaid. However, if you don’t meet all the CFRA requirements below, you are not entitled to job-protected time off for bonding following PDL.

CFRA eligibility requirements:

  • Work for an employer with over 20+ employees within a 75 mile radius
  • Have worked at employer for at least one year
  • Have worked at least 1,250 hours in the last year

By now, it’s clear that you aren’t eligible for job protection under CFRA, but can you still access PFL? After all, PFL is something you’ve been paying into through CA SDI tax deductions. So, here’s the actual tricky part….By virtue of having paid into SDI taxes, you are technically eligible to claim PFL following PDL/SDI. However – the kicker is – since PFL is only wage replacement and does not provide job protection, you would need to be CFRA-eligible to have your job protected while taking leave to collect PFL. Crap!

[UPDATE: The maximum duration of PFL benefits will increase from 6 weeks to 8 weeks, beginning on July 1, 2020. This does not change the fact that PFL is NOT a job-protected leave of absence. You must still be eligible for CFRA in order for your job to be protected while taking time off to collect PFL benefits.]

But, even when law mandated job-protected leave is not available to you, you may be able to still request leave independent from CFRA from your employer. So, it’s definitely worth the conversation with your employer to see if they have any Leave of Absence (LOA) policies outside of CFRA. The other bummer is that without law-mandated CFRA, your request to take leave would be subject to employer approval. If you do happen to get approval to take non-CFRA leave, PFL is paid out at the same rate as your SDI benefit.

I know it’s not much maternity leave compared to say Croatia, which gives moms an entire year of full pay. But, at least you’re getting some time to prepare and be with your little one….even if you’re sleep deprived.


If you have questions regarding California maternity leave, or would like more information on how I can provide individualized support to help maximize your maternity leave, please visit Maternity Leave 411.

If you are PDL/FMLA + CFRA eligible, read this post on how to Milk Your Benefits!

Pumping at Work: Tips for making it work

Pumping is a labor of love. It takes a lot of time and effort, but you press on (or pump on) for the sake of your child. While everyone has their own timeline for how long they want to pump – or chose not to pump at all – here are some tips that helped me while I pumped at work.

First, let’s review the laws shall we….In California:

  • Employers must provide employees with a reasonable amount of break time to pump. (Labor code: 1030)
  • Employers must make reasonable efforts to provide
    employees with the use of a room or other location for pumping. This does NOT include toilet stalls or bathrooms (that is against the law). Also, it must be in close proximity to the employee’s work area employee. (Labor code: 1031)
  • If you feel that your pumping rights are being violated in any way, file a complaint with California Department of Labor.

Now, for the tips:

1) Get your hands on a quality breast pump. I use the Medela Pump In Style Advanced and really like it. I found it to be just as strong as a hospital grade pump, making it super efficient. Only downside is that it’s pretty loud.

PRO TIP: The health care law requires most health insurance plans to provide pumps for FREE. The only caveat is that your choice of breast pumps may be limited depending on your carrier. Before you go out and buy one, definitely check with your insurance carrier to see which pump they cover.

2) A hands-free breast pumping bra is your BFF. These babies are essential for multitasking. Just strap in, pump, and email on! I like the Medela brand – it’s nice and snug, keeping pump parts in place, yet still comfy. They tend to run small, so best to size up.

3) A cooler and ice pack makes for easy transportation of your liquid gold. This cooler, which includes two ice packs, by Munchkin worked great for me, but any ol’ cooler is fine.

4) An easy way to disinfect your pump parts will save you a lot of time and energy. I should know because I did it totally wrong by bringing a different pumping set for each session – that’s SIX (flange, pump, and valves) different pieces to wash every night! No bueno. Instead, put your used pump parts in a ziplock bag and store in the fridge in between session. As long as the parts are kept cold, the risk of contamination is very low.

5) Make pumping a part of your workday routine. Work can get very demanding and distracting. Before you know it, you’ve completely missed a pumping session and you’re engorged and uncomfortable. Grrrrreeeaaaat. Avoid these snafus by slotting your pump times into your work calendar. By blocking out times, not only will it help you stick with it, it will also let colleagues know you are occupado (busy).


Common Maternity Leave Questions

Oh, maternity leave: the never ending abyss of questions and uncertainty. If you’re just starting to navigate the maternity leave waters check out my previous post on how to Milk Your Benefits. After reading about California maternity leave and you’ve found yourself like this, you’re not alone….


To help ease the process a bit, I’ve listed some of the most common questions I’ve been seeing in various “mommy” forums.

1) Can you accrue vacation days while on maternity leave? Typically, no – vacation and sick accrual usually stops when you start your leave. A company may chose to continue sick/vacation/PTO accrual as a benefit, but that is up to the company. Definitely something to confirm when you first talk to HR about your maternity leave benefits.

2) Will I still get health insurance through my company while I’m leave? Yes, you are entitled to the continuation of health benefits through your employer for the entire duration of your PDL and CFRA (if eligible) leave. However, depending on your employer’s policy, you may be responsible to pay the monthly premium. This amount is usually the amount you are paying each paycheck, but get that confirmed with HR too as they may cover some or all of the premium.

3) What’s the best way to fill out the EDD forms? In California, you can file claims for both SDI and Paid Family leave via the SDI Online system.

4) How does my doctor submit the medical portion of the SDI claim? If you submit the SDI claim online, you will be given a Form Receipt Number (FRN) which you have to provide to your doctor. They will then use your FRN to file the physician certificate online (or by mail). IMPORTANT NOTE: Filing online does NOT automatically kick things over to your doctor, you must notify your doc of your Form Receipt Number. Also, your SDI claim is not complete until the EDD gets the certification from your doctor.

5) If I work up until my baby is born will I get more time with my baby? No. Under the Pregnancy Disability Leave (PDL) law, most doctors will certify a pregnancy disability leave of 10-12 weeks for a normal pregnancy — 4 weeks before childbirth and 6 weeks after a vaginal delivery (or 8 weeks after delivery by cesarean section). This means that regardless of when you give birth you are either allotted 6 or 8 weeks after birth. Then, if eligible for CFRA, you are entitled to an additional 12 weeks of bonding leave following PDL. (More info on that here). So, my tip: If you can afford it (you will be paid 55% of your weekly wages under State Disability Insurance), definitely take some time before the baby is born to relax and get things organized since it is a “if you don’t use it; you lose it” situation.

I’ll continue to post common questions as I see them. In the meantime, if you have any questions send them my way by commenting below.

Happy Maternity Leave!