Every employer at a dental practice will likely manage a pregnant employee at least once in their career, and most employers will have at least one question about pregnancy leave and the law. CDA Practice Support has received calls from puzzled members inquiring about the obligations associated with managing employees’ accommodations, benefits, leave and return rights and pay obligations. This article addresses common questions to help guide employers and ensure they are following leave laws and best practices.
While California’s Pregnancy Disability Leave law states that employers of five or more employees must provide PDL, it is a recommended conservative best practice that all employers, even those under a five-employee head count, provide the pregnancy leave.
Full-time and part-time employees are eligible for PDL from the onset of employment. The duration of leave is up to four months for eligible employees disabled by pregnancy, childbirth or a related medical condition. This duration includes the amount of time employees may need prior to and after the birth of the baby. The employee’s health care provider, not the employee, designates the duration of leave.
When an employer grants an employee’s request for PDL, that employer is guaranteeing that the employee will return to the same position or a comparable one. If an employer should discover indications of poor performance or inadequacies in an employee’s role, the best course is to meet with the employee to discuss the performance expectations when the employee returns and then to monitor and document performance going forward.
Because of the legal risks of failing to comply with pregnancy disability laws, employers who wish to make changes to an employee’s job status before, during or after a leave of absence should seek the advice of an employment attorney prior to taking any action.
PDL does not have to be taken in one continuous period of time. Employees can take leave intermittently or on a reduced work schedule when necessary, as determined by the employee’s health care provider.
If an employee is disabled longer than four months because, for example, the employee is placed on bed rest or needs additional time off at the end of four months, the employee may be entitled to additional leave as a reasonable accommodation for a pregnancy-related or other disability under the Americans with Disabilities Act and California’s Fair Employment and Housing Act. This article specifically covers an average pregnancy leave of absence when it does not implicate those two laws.
Once the employee informs her employer of her pregnancy or related medical condition, the employee and employer should review “Your Rights and Obligations as a Pregnant Employee” (DFEH-E09P-ENG). This notice developed by the DFEH covers the steps involved with reasonable accommodations, notice and timing obligations from both parties and return rights. Both parties should also review and discuss the practice policies related to pregnancy and leaves of absence.
Pregnancy leave is not for “baby bonding time” but to provide time off when the employee’s health care provider states that the employee is disabled by the employee’s pregnancy, childbirth and recovery or any related medical condition. After the employee is no longer disabled, PDL does not cover time simply to stay at home with a new baby.
Baby bonding leave protections in general only apply to eligible employees (mothers and fathers) who need time off from work after a biological child is born, adopted or placed with the parents for fostering and who work for employers who meet certain requirements as described below.
NPLA applies to employers of 20 to 49 employees. An eligible employee can take up to 12 workweeks of NPLA within one year of a child’s birth, adoption or foster care placement. Covered employees must have worked for the employer for a minimum of 12 months and worked at least 1,250 hours in 12 months at a worksite with at least 20 employees in a 75-mile radius. This could apply to practice owners with two practices. The employee is guaranteed 12 weeks of job-protected leave in writing, which includes continued health care coverage and job return rights.
The federal FMLA and the California Family Rights Act apply to employers with 50 or more employees and apply to family and medical leaves. An eligible employee can take up to 12 workweeks of unpaid FMLA/CFRA within one year of a child’s birth, adoption or foster care placement. Covered employees must have worked for the employer for a minimum of 12 months and worked at least 1,250 hours in 12 months at a worksite with at least 50 employees in a 75-mile radius. This requirement could apply to practice owners with two practices.
The Department of Fair Employment and Housing website offers detailed information on these leaves of absence.
Employers should understand that if the requirements for covered employers are not met or if the employee does not meet the requirements of a covered employer, and the leave does not fall under another disability law, then the employee would generally not be entitled to take that additional protected “bonding leave” by law. Employers could then consider any requests for additional time post-pregnancy leave under their personal leaves of absence policies, which employers have the right to grant or deny.
PDL is generally unpaid, but employees may have certain rights to receive benefits through accrued paid sick leave or vacation time. Additionally, employees may apply for wage replacement benefits through State Disability Insurance and Paid Family Leave programs funded through employee payroll deductions. Employees apply to receive these benefits through the Employment Development Department.
Employers are obligated to continue group health benefits for employees on family leave under the same terms as if the employee is still working. Employers are encouraged to discuss in advance any arrangements for continuation of the employee’s contribution to premium payments.
The employer can require the employee to obtain a “return to work” release from the employee’s health care provider as a condition of the employee’s return to work as long as the employer maintains the practice or policy of requiring a release for other leaves unrelated to pregnancy. The release should state that the employee is able to resume the original job duties and provide the date the employee is able to return.
Employers can consider an employee’s request to change their schedule once they return from leave just as the employer would for any other employee requesting a schedule change. Employers are not obligated to make these schedule changes if the position or reduced schedule is unavailable in the business and it is not a reasonable accommodation request based on a disability.
Know your policies, document discussions and get leave and return agreements in writing. Prior to the onset of leave, your employee should provide you a notice from her health care provider that indicates an approximate date of leave.
But do be flexible, as births can be unpredictable. If timelines shift, employees should be aware that if their return date should change, they should communicate this change to their employer as soon as practical and it should be supported by a notice from the employee’s health care provider.
Unfortunately, many of the eligibility requirements of these laws are not entirely clear to everyone. The sooner that you and your employee understand the ins and outs of notices, leave/return rights and policies, the better. Misunderstandings stem from lack of communication, inadequate documentation and assumptions: You could find yourself wondering too late when your employee is returning to work.
CDA Practice Support resources on this topic include “What to Expect When Your Employee is Expecting” and “Pregnancy, Maternity/Paternity and Baby Bonding Leave in California.” Federal and state family leave rights notices are found in CDA’s Required Poster Set.
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