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?

Maternity leave in the United States already sucks as it is. (Side note: We are are only one of three countries in the world that doesn’t offer paid maternity leave – the US along with Papua New Guinea and Suriname.) But, what do you do if you don’t qualify for federal (FMLA) or state (like CFRA) leave laws because you don’t meet the required employment criteria? This predicament may leave many part-time working women or those new to their jobs in California in quite the pickle. Have no fear, you will be entitled to some level of job-protected and paid maternity leave.

First, here are the requirements for eligibility for both FMLA and CFRA:

  • Your employer employs at least 50 people within a 75-mile radius of your worksite
  • You have worked for your employer for at least 12 months (even on a part-time or temporary basis)
  • You have worked at least 1,250 hours (about 25 hours per week) during the 12 months before the leave

Here’s a timeline for a mom who is eligible for FMLA and CFRA. You get 22 week of maternity leave (24 weeks if you have a c-section). Read this post to get the full 411 on maternity leave in California, as there are important things to know about pay, job protection, and health benefits.

FMLA/CFRA Eligible: 

FMLA/CFRA Eligible Maternity Leave

FMLA/CFRA Eligible Maternity Leave

If you are NOT eligible for FMLA and CFRA, you are still entitled to16 weeks of maternity leave (or 18 weeks if you have a c-section). See handy timeline below courtesy of The Legal Aid Society (full link here).

Non-FMLA/CFRA Eligible: 

Non-FMLA/CFRA eligible maternity leave

Non-FMLA/CFRA eligible maternity leave

Okay, let’s get into the nitty gritty and discuss job protection, pay, and health benefit continuation.

Weeks 1-10 (or weeks 1-12 for CS mommas)

Job Protection: Even if you are not eligible for FMLA, you’re still entitled to take Pregnancy Disability Leave (PDL), which in itself is a state law that provides employees the right to take job-protected unpaid leave for a pregnancy-related condition. Unlike FMLA, eligibility for PDL is not dependent on how long you’ve worked at your company nor number of hours you’ve worked.

Getting Paid: While PDL gives you unpaid job protection for 4 weeks prior to birth and 6 weeks after birth (or 8 weeks after birth if you had a c-section), you’ll only be paid 55% of your wages through State Disability Insurance (SDI). The State of California requires all employees to pay into its SDI program through payroll deductions, so you’re most likely automatically eligible for SDI benefits. Confirm with your HR team to make sure or check your pay stub to see if there’s a line item that says something along the lines of SDI Deductions.

Health Benefits: While you are taking PDL, by law your employer must continue your health benefits for the entire duration of your PDL. You may be on the hook to pay the premiums, so be sure to confirm with your HR.

Weeks 11-16 (or weeks 13-18 for CS mommas)

Job Protection: Here’s the unfortunate tricky part. You won’t have job protection during the second half of your maternity leave. Boo! Sucks!

This is something you’ll definitely want to talk to your HR department about. Specifically, ask if there are maternity leave policies in place for those who do not qualify for FMLA/CFRA. Also, confirm that you’ll be able to use your PTO or vacation time to lengthen your job-protected maternity leave.

Getting Paid: As you’re recovering from childbirth, you’ll be partially paid (55% of wages) for up to six weeks under Paid Family Leave (PFL). As mentioned above, your job won’t be protected during this time – which blows, but at least you get some pay out of it….I know, it still sucks though. As a heads up, all employees in California – including those who do not meet the FMLA/CFRA requirements – who pay into SDI qualify for benefits under PFL.

Health Benefits: There technically is no law that requires your employer to continue your health benefits during this portion of your leave. Even with the PFL law, it doesn’t require your employer to provide health benefits while you’re receiving PFL benefits. I know; another major bummer. Definitely talk to your HR department about how you can mitigate this issue, like paying your portion (or more) of the premium, you may be able to negotiate some agreement with your employer.

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


If you’d like more information on California maternity leave or have questions, please email me at kiks16 [at] gmail.com.

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 leave, up to four months. 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 state 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 you can 12 weeks of CFRA if you wish. 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!