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]

3 thoughts on “Not eligible for FMLA/CFRA: What to do?

  1. Michelle says:

    Are you sure PDL only gives you 6 weeks after vaginal birth? I’ve seen online it gives you a maximum of four months. Thanks!


    • Hi Michelle, you’re absolutely correct that PDL provides up to 4 months of leave. I should have been clear in noting that for typical, healthy pregnancies, doctors will typically approve leave for 4 weeks before and 6-8 weeks after birth. Thanks!


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