What happens if I don’t go back to work after maternity leave? Are there penalties?

The question of going back to work after maternity leave isn’t always an easy one, especially if you’re on the fence. Whether it’s a last minute gut decision or something you’ve always planned for, working moms often ask if there are potential ramifications or penalties of not going back to work after leave.

Unless there was a contractual obligation – like a signed agreement – for you to return to work after maternity leave, an employer usually wouldn’t have legal recourse. But, in some instances, an employer can require you to pay back the health benefit premium if you don’t go back. Bahhh, what!? So, before you send in your resignation letter, let’s talk more about the laws allowing employers to recover premiums and what some of the loop holes are.

The following applies to California moms who will take FMLA leave followed by CFRA leave. 

According to CFRA laws, “an employer may recover the premium that the employer paid for maintaining group health care coverage during any unpaid part of the CFRA leave.” (Emphasis is my own). Note the emphasis on UNPAID. If you are eligible to take 6 weeks of paid PFL during CFRA, you’re technically only on the hook to pay back premiums during the last 6 weeks of UNPAID CFRA. Also as a reminder, per FMLA and CFRA laws an employer must maintain your health care benefits while on leave – read more common questions here.

While making the life decision to be the full-time caretaker of your child is an exceptional and valid one, there may be other circumstances that require you not to return back to work. Your employer cannot require you pay back your portion of the premium if your failure to return was caused by the continuation, recurrence or onset of a serious health condition that would entitle you to family or medical leave, or by other circumstances beyond your control. The term “circumstances beyond the employee’s control” is quite nebulous. The CFRA laws don’t specifically define it, but the FMLA does:

“Other circumstances beyond the employee’s control. Examples of other circumstances beyond the employee’s control are necessarily broad. They include such situations as where a parent chooses to stay home with a newborn child who has a serious health condition; an employee’s spouse is unexpectedly transferred to a job location more than 75 miles from the employee’s worksite; a relative or individual other than a covered family member has a serious health condition and the employee is needed to provide care; the employee is laid off while on leave; or, the employee is a key employee who decides not to return to work upon being notified of the employer’s intention to deny restoration because of substantial and grievous economic injury to the employer’s operations and is not reinstated by the employer. Other circumstances beyond the employee’s control would not include a situation where an employee desires to remain with a parent in a distant city even though the parent no longer requires the employee’s care, or a parent chooses not to return to work to stay home with a well, newborn child.” (825.213 (2))

Okay, so now that we know your employer can make you pay back your premium if you don’t go back to work, let’s discuss an interesting loop hole. The CFRA law states that “an employee is deemed to have failed to return from leave if he/she works less than 30 days after returning from CFRA leave.” It goes further on to say that “an employee who retires during CFRA leave or during the first 30 days after returning is deemed to have returned from leave.” What does this mean? According to the laws, as long as you go back to work for at least 30 days there is no risk of you having to pay back your premium.

But here’s the thing…I’m not saying you should just go back to work for 30 days and quit. I’m just simply translating the law. If you absolutely know you aren’t going back to work, or even have doubts, talk to your manager or a trusted HR rep about your situation to confirm these details.

For non-California moms or folks who didn’t take CFRA leave, FMLA laws around this is similar. Read the full text of FMLA laws under the “Employer Recovery of Benefits Costs” section here

 

Using Sick, Vacation and PTO during maternity leave

It’s no secret that you’re going to try to stretch out every last minute and dollar out of your maternity leave. No shame in that game! One obvious method is to utilize any of your accrued sick, vacation, or PTO time to offset the reduction in pay. There are restrictions and regulations to doing this, so read on for more knowledge.

NOTE: The following applies to usage of sick, vacation and PTO while you are receiving wage replacements from State Disability Insurance (SDI) and Paid Family Leave (PFL). 

Sick Leave

The EDD treats sick leave as wages earned, so you can’t receive SDI or PFL benefits for any time you are receiving sick leave wages that are equivalent to your full salary. 

But wait, there’s a caveat to this! You can coordinate or integrate a portion of sick leave pay to make up the difference between the SDI/PFL benefit amount and your normal full wage. So, by combining 45% of sick leave with the 55% SDI/PFL benefit, you can theoretically get 100% of your normal gross weekly wages for the benefit period, or up until you’ve exhausted your accrued sick time. Here’s an example provided by the EDD:

An employee’s current gross weekly wage is $500. The weekly benefit amount from PFL is $275 [note: 55% of $500]. The $500 minus $275 equals a $225 per week wage loss. Consequently, the employer can integrate/coordinate a maximum amount of $225 per week in gross wages to the employee, resulting in the employee receiving the equivalent of his/her normal weekly gross pay.

Integrating/coordinating your sick leave will not affect your eligibility for SDI or PFL benefits. If you and your employer decide to go this route, your HR rep must notify the EDD that only 45% of wages are being paid, otherwise you may be denied benefits.

Vacation Leave

Vacation pay is not in conflict with SDI benefits, so your employer can pay you vacation time while receiving SDI benefits at the same time.

Vacation pay is also not in conflict with PFL benefits, but the rules are a bit fuzzier here as regulations have recently changed. The law used to give an employer the option to require you to take up to two weeks of earned but unused vacation leave before receiving PFL benefits.

However, an update to the CFRA law (as of July 1, 2015) states that, “an employee receiving Paid Family Leave to care for the serious health condition of a family member or to bond with a new child is not on “unpaid leave,” and, therefore, an employer may not require the employee to use paid time off, sick leave, or accrued vacation.” Since there is no 7-day waiting period for new mothers transitioning from SDI benefits to PFL, that means you are immediately starting paid CFRA leave, and therefore, according to the updated law you should not be required to use vacation, sick or PTO time before starting PFL.

Paid Time Off

While receiving SDI or PFL, PTO pay is considered the same as sick leave wages, if the payments are made as a replacement for sick leave when you’re out on leave.

This means that if you just accrue PTO, as opposed to sick and vacation time, then the only way to utilize PTO to offset pay reduction is to integrate/coordinate it with your SDI/PFL benefits.

Vacation/PTO/Sick Usage Situations

So, now that we’ve gone over how we can use vacation, sick and PTO time, let’s discuss common usage situations.

Unpaid CFRA time: In most traditional maternity leave scenarios (aka uncomplicated pregnancy with vaginal delivery), you’ll get partial pay for 16 out of the 22 weeks of maternity leave via SDI and PFL benefits (see timeline below). [Check out this post for a thorough overview on maternity leave].

FMLA/CFRA Eligible Maternity Leave

FMLA/CFRA Eligible Maternity Leave

As you can see from the timeline, the last 6 weeks of CFRA are unpaid. So, what to do? According to CFRA laws, you can chose (or an employer may require you) to use any accrued vacation time or PTO time during the unpaid portion of the CFRA leave. You can use sick leave during this time only if the leave is for your own serious health condition or any other reason mutually agreed between you and your employer.

7-day waiting period: There’s a mandatory 7-day unpaid waiting period that you have to serve before receiving SDI benefits. (Benefits are paid once the waiting period has been completed and all other eligibility criteria are met.) During the non-payable waiting period, you are allowed to utilize any form of wages paid by employer (sick, PTO, vacation, etc) to make up for the loss of wages. As mentioned above, there is no additional seven-day waiting period for a PFL claim to bond with a newborn when the PFL claim follows the DI pregnancy-related claim.

How did I navigate the system, you ask?

I was able to coordinate/integrate over 100 hours of accrued PTO (my company only did PTO; no separate vacation or sick time) with 160 hours of company-sponsored leave pay (company perk), giving me full pay for about 14 weeks, 6 weeks partial pay, and 4 weeks unpaid during my 24-week maternity leave. Not too shabby, right?

How did you utilize your sick, vacation and PTO time during your maternity leave? Tell us about it in the comments.

Which family members do FMLA and CFRA cover?

Super basic question, but I’ve yet to find a simple, easy-to-read answer on the World Wide Web. So, here ya’ go!

FMLA and CFRA both cover the following:

  • Spouses:
    • Husbands and wives
    • Legal, same-sex married couples. As of March 27, 2015, those in legal, same-sex marriages – regardless of where they live – have the same rights as those in opposite-sex marriages to federal job-protected leave under FMLA and CFRA.
  • Sons or daughters:
    • Biological child
    • Adopted child
    • Foster child
    • Stepchild
    • Legal ward
    • Child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability.” Loco parentis is defined as someone with the day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.
  • Parents:
    • Biological
    • Adoptive
    • Step
    • Foster father or mother
    • Any other individual who stood in loco parentis to the employee when he/she was a child. This does not include in-laws.

Additional coverage under CFRA is registered domestic partnerships. Effective July 1, 2015, CFRA leave may be taken to care for the serious health condition of a registered domestic partner, as defined by Family Code sections 297 through 297.5. If you live in California, where the FMLA law and the CFRA law differ, the most generous/less restrictive leave provisions must be applied. 

Additionally, there are couple other bonus coverage areas under California’s Paid Family Leave (PFL) that are worth noting. In July 2014, PFL was expanded to also cover siblings, grandparents, grandchildren and parent in-laws. Under the law, the term “sibling” is defined as “a person related to another person by blood, adoption, or affinity through a common legal or biological parent,” and “parent-in-law” is defined to include the parent of a spouse or domestic partner. Do remember though that PFL only provides partial wage replacement – and does NOT provide job security. So, if you’re thinking of taking leave to care for a sibling, grandparent, grandchild or an in-law, be sure to talk to your employer about job security.

You never know what kind of curve balls life will throw at you. I do feel some relief that federal and state leave benefits extend out to family – blood and non-blood – members. [Cue music!…]

Have you taken leave for an extended family member? Tell us about it in the comments below.

 

Paternity Leave: What about the dads?

Sir Richard Branson, Founder of Virgin Group, rocked the paternity leave landscape earlier this week by announcing a new company policy that would allow fathers a full year of paid time off. While this new policy applies to only a certain level of employees at the UK-based company, it’s still pretty impressive…and super generous. Good work, Sir!

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Sir Richard Branson. Image courtesy of CrunchBase

If you’re a soon-to-be new dad, don’t worry, you won’t need to relocate to the UK to get some sort of paternity leave benefit. So, what are the benefits for dads in California?

FMLA/CFRA Leave for Eligible Dads 

Under the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA), dads are eligible to take up to 12 weeks of job-protected, unpaid family leave after the birth or adoption of a child. Unlike maternity leave, FMLA and CFRA runs totally concurrently.

Paternity leave for FMLA/CFRA eligible dads . Timeline courtesy of Legal Aid Society Employment Law Center.

Paternity leave for FMLA/CFRA eligible dads . Timeline courtesy of Legal Aid Society Employment Law Center.

California happens to be one of three states (Washington and New Jersey being the others) that provides some pay for paternity leave through Paid Family Leave (PFL). As long as you’re eligible (pay into the state disability fund), you’ll be paid for 6 out of the 12 weeks at around 55% of your wages (up to a cap). California also hooks up dads through a labor law known as the Kin Care. Under this law, employers who provide sick leave for their employees must allow dads or spouses to use up half of their accrued sick leave in any calendar year to care for their partners. Using Kin Care doesn’t extend your time off, but it will provide an extra layer of compensation during that time.

You don’t have to use the entire 12-week FMLA/CFRA leave all at once. As long as your employer is cool with it, you can spread it out by taking it in chunks or reducing your weekly/daily work schedule. Only requirement is that you use it during the first year after your child is born or placed with you. Also, there won’t be a disruption in health benefits during the 12 weeks of paternity leave under FMLA/CFRA.

Couple of exceptions to mention

An employer can deny FMLA/CFRA leave if you are one of the highest 10% of earners at the company and can show that your absence would cause substantial economic harm to the organization. This exception actually applies to both men and women employees.

Another exception is if baby daddy and baby mamma work at the same company. Your work place may have sparked the romance, but you’ll only be eligible for a combined 12 weeks of leave between the two of you. [Mental note: don’t get involved with coworkers. I kid. I kid.]

Non FMLA/CFRA eligible dads

If you work for a small company or just part time, you’re likely not eligible for the 12 weeks of FMLA/CFRA leave. It’s definitely worth talking to your employer to see what sort of benefit or arrangement you can mutually agree to. California resident papas are still eligible to receive up to 6 weeks of PFL, but your job is not protected during this time.

Some extra thoughts 

The progressive thinking of company heads like Branson and Mark Zuckerberg at Facebook, who provides paid paternity leave for 17 weeks, helps to shed light on the importance of paid paternity leave. I also hope through these paternity break-throughs it will help take the stigma out of paternity leave. It takes a village to raise an infant and us moms need back up! [kind of joking] But in all seriousness, the first few months of a baby’s life is precious and dads shouldn’t be denied of experiencing that amazing time.

Happy paternity leave!

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Did you or your spouse/partner take paternity leave? Tell me about it in the comments!

 

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….

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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!

California Maternity Leave: How to milk it

There are seven wonders of the world. Wrong! There are eight; the final one being the mysterious maternity leave. When I found out I was pregnant one of the things that made me jump for joy (next to loving the alien bump growing inside me, obvi) was the prospect of setting off into maternity leave bliss. I felt like I had paid my dues working in stressful PR jobs throughout my career, so I knew I wasn’t going to be shy about really maximizing my maternity leave benefits.

But this was all much easier said than done since figuring out how to milk the system was incredibly hard to find. Pinpointing concrete information on maternity leave was like setting out on a mission to discover El Dorado. No joke guys, I was seriously OBSESSED with figuring out all the details of maternity leave. Also, I was convinced that my employer was jipping me several weeks of precious leave, so off to scouring the internet I went.

First, as a disclaimer, I am not an HR professional nor an employment law expert. The following is how I understood and applied my maternity leave benefits in California. Further, my understanding was confirmed by an attorney at The Legal Aid Society – Employment Law Center. 

The following applies to employees who are eligible for the Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) by meeting the following criteria:

  • 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

Let’s get right to it. The bottom line is that for any healthy preggers (i.e. no need for extended bed rest or reasons to be out of work due to complications) you get 22-24 weeks of maternity leave (22 weeks for vaginal delivery and 24 weeks for c-section). Now, not all of that time is paid for (I’ll get to that later), but what this means is that you get 22-24 weeks of job protection. 

There are so many ways to explain maternity leave, but I think it’s easiest to explain it in chronological order. Here’s a chart I drew up (don’t mind the chicken scratch writing) and I’ll explain each step. I should mention that this chart is based on me having had a c-section on May 12.

My maternity leave timeline. I started my maternity leave on April 16, 4 weeks before my due date. I gave birth via c-section on May 12, which ended my PDL/FMLA on July 7 (8 weeks after 5/12). The end of the PDL/FMLA kicked in my 12-week CFRA, giving me a go-back-to-work date of September 29.

My 24 week maternity leave timeline. I started my maternity leave on April 16, 4 weeks before my due date. I gave birth via c-section on May 12, which ended my PDL/FMLA on July 7 (8 weeks after 5/12). The end of the PDL/FMLA kicked in my 12-week CFRA, giving me a go-back-to-work date of September 29.

For a typical, uncomplicated vaginal birth timeline, check out this baby (pun intended) published by The California Work and Family Coalition [full pamphlet here].

Uncomplicated vaginal birth. Courtesy of The California Work and Family Coalition

1) Starting your disability: First, decide when you want to start your maternity leave. Some take a week or two off before baby is expected to arrive, while others work literally right until the moment they are saddled up in the stirrups. (I had a boss once who actually sent me an email while in labor, but I digress…) It’s important to note that in California for healthy, uncomplicated pregnancies and births, women can get Pregnancy Disability Leave for up to 4 weeks before birth and 6-8 weeks after birth (will provide more detail on the second half later, as well as information on what happens if you have complications). My employer’s HR team never told me this. Also, read

PRO TIP: The 4 weeks before delivery is a “use it or lose it” situation. You don’t get to tack it on later, so if your individual situation allows for it USE IT. Some of my colleagues balked at me taking 4 weeks off before my due date saying I’ll get bored. Psshhh. Only boring people get bored, but on the real tip, the extra rest is amazeballs and I (assume this is the norm for all preggos) got HUGE in the last 2 weeks. UPDATED: I should clarify that it is typically a “use it or lose it” situation, except for when you have pregnancy-related complications that may keep you disabled past 13 weeks after birth. So, say you took 4 weeks off before birth, but then experience postpartum depression. You would only have 13 weeks of PDL remaining after birth. Had you not taken any time off before birth, you would have had all 17 weeks of PDL to use post birth. But, the reality is that you can’t predict what will happen to you, and personally, I think it’s important to take some time off before baby is born. There are other laws, including CFRA and reasonable accommodation, in place that will protect you even if you exhaust PDL and are still experiencing complications.

Also, an important heads up. Taking off 4 weeks before your due date will NOT affect your “go back to work” date, since that date is calculated from your actual delivery date not when you started maternity leave. I had a lot of people tell me that they would rather spend the extra 4 weeks with their newborn than take off early for maternity leave — not the case, mah friends!

As you patiently wait the arrival of your precious offspring, your job will be protected under the Pregnancy Disability Leave Law (PDL) and Family Medical Leave Act (FMLA) and you will be paid 55% of your weekly wages under State Disability Insurance (SDI).

As a side note, you’ll often see references of PDL and FMLA combined, which can make things confusing. The reason why most literature combines them is because they run concurrently – they both start the minute you begin your maternity leave. But, the difference between these two is that:

  • PDL is a CA state law that provides job-protected, unpaid coverage for pregnancy-related conditions. PDL is much more generous than FMLA, providing up to 4 months (or 17 weeks) of job protection.
  • FMLA is a federal law that provides 12-weeks of job-protected, unpaid coverage to •bond with a newborn, newly adopted or foster child (or the child of a
    spouse or domestic partner) or care for yourself or a close family member with a serious health condition. UPDATED: While it’s important to remember that FMLA runs at the same time as PDL, for the purpose of understanding CA maternity leave, it might be easiest if you just think about PDL, especially since the state law supersedes the federal FMLA anyway.

2) You had your baby!: Okay, so after 4 loooong weeks your beautiful baby has finally entered the world. Hooray!

Once your baby is born, your Pregnancy Disability Leave/FMLA will continue for an additional 6 weeks for a vaginal birth or 8 weeks if you had a c-section; and you’ll continue to get partial pay under SDI (still at 55%).

UPDATED: Should you have any complications – physical or mental (i.e. postpartum depression) – due to your pregnancy or childbirth, your doctor can certify an extension to your pregnancy disability leave (along with your SDI payments).

3) Your baby is now 6 or 8 weeks: Now it’s time to bond: Once you’ve completed your 10 or 12 weeks of the PDL/FMLA combo – or more importantly, when your doctor has certified you no longer disabled by your pregnancy – the clock gets reset with 12 weeks of unpaid, job-protected leave under the California Family Rights Act (CFRA) to bond with your baby (must meet eligibility requirements for CFRA). Your doctor will determine when you are cleared from disability – this is typically 6 or 8 weeks after birth, but should you be experiencing any complications your doctor can certify an extension on your PDL.

During CFRA, you will be paid 55% of your weekly wages under Paid Family Leave, but here’s the kicker…only for 6 weeks. This means that while you are under 12-weeks of job protection under CFRA, you’ll get partial pay for only 6 of those 12 weeks. Bummer. This is where most people can apply unused vacation time to offset not getting any sort of pay for the remainder of their leave. Also, you don’t need to take your 6-week PFL all at once. You can break it up and take it in hourly or daily increments as needed.

Okay, what I’m about to say next is important! Your “return to work” date is determined by when your CFRA ends. So, say your PDL/FMLA combo ended on July 7, which then kicks in the 12 weeks of CFRA, and then puts your “return to work date” to September 29. Make sense?

4) Your maternity leave has ended and you’re back at work. I won’t sugar coat it; it’s not easy going back to work after being out for 24 weeks. But, you make do and just like all things that suck at the beginning, once you get into the swing of things, you will find joy balancing out work and family life.

Hope this all makes sense. If you have any questions or issues, leave a comment!

P.S. BTW, turned out that my employer WAS wrong about when I was supposed to go back to work. Muahahaha! Knowledge is power, friends; knowledge is power!

UPDATE: If you’d like more information on California maternity leave, please email me at kiks16 [at] gmail.com. Also, come join the California Maternity Leave Support Facebook group where moms/dads can ask each other questions and get tips on how to maximize their maternity leave benefits.

If you’re NOT eligible for FMLA/CFRA, read this