Under California state law, the Fair Employment and Housing Act provides guaranteed parental leave for employees in instances concerning:
- Pregnancy/childbirth
- Adoption or foster care placement
- Caring for a child with a severe medical condition.
The California Government Code states that employees are entitled “to take up to a total of 12 workweeks in any 12 months for family care and medical leave” if requests meet the requirements for entitled family and medical leave.
California state law provides that any person that is affected by a pregnancy, or a condition related to pregnancy, childbirth, or related medical conditions are entitled to family care or medical leave. This includes transgender parents who are affected by pregnancy or disabled by pregnancy. (Cal. Code Regs. Tit. 2, § 11035(a))
One must have a parent-child relationship in requesting leave concerning pregnancy, childbirth, or parental leave. The law defines “parents” to mean “a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian or other people who stood in loco parentis” to the child. (§12945.2. (10).
The Family and Medical Leave Act explains that “loco parentis refers to the type of relationship in which a person has put themselves in the situation of a parent by assuming and discharging the obligations of a parent to a child. It exists when an individual intends to take on the role of a parent. In instances of loco parentis, a legal or biological relationship between adult and child is not necessary, however in determining leave, numerous factors are considered, including:
- How old the child is
- The relationship and level of dependency between child and adult
- The extent of day to day responsibilities of the adult
- The amount of care and or financial support from the adult
What qualifies for Family Care and Medical Leave?
California Government Code establishes what qualifies as family care and medical leave and what does not.
Parents can request family care leave in such instances of:
- Childbirth, adoption placement, or foster care placement. §12945.2.4(a).
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- Affected by a condition related to pregnancy, childbirth, or related medical conditions
- This can include a physical or mental condition inherent to pregnancy or childbirth, including but not limited to lactation. (Cal. Code Regs. Tit. 2, § 11035(d)
- Disabled by pregnancy
- A woman is disabled by pregnancy “if, in the opinion of her health care provider, she is unable because of pregnancy to perform any one or more of the essential functions of her job or perform any of these functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons”. (Cal. Code Regs. Tit. 2, § 11035(f)
- Affected by a condition related to pregnancy, childbirth, or related medical conditions
- Considered to be disabled by pregnancy in the opinion of a healthcare provider (Cal. Code Regs. Tit. 2, § 11035(f)
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- One is suffering from a related medical condition:
- Mastitis
- Severe morning sickness
- Gestational diabetes
- Pregnancy-induced hypertension
- Preeclampsia
- Postpartum depression
- One needs to take time off for:
- Bed rest
- Prenatal or postnatal care
- Recovery from childbirth
- Recovery from loss or end of pregnancy
- One is suffering from a related medical condition:
In instances of medical leave, employees can request leave “to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition” §12945.2.4(b).
Required Documentation for Family Leave
California Government Code further explains that employers have the right to request documentation supporting the request for leave, such as “a certification issued by the health care provider of the individual requiring care.” If the employee’s request for family leave is foreseeable, in that case, the employee needs to provide reasonable advance notice of their need for leave to the employer. (12945.2. (g)
According to §12945.2. (i)(1) the certificate must include:
- The date on which the serious health condition commenced.
- The probable duration of the illness.
- An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care.
- A statement that the serious health condition warrants a family member’s participation to provide care during a period of the treatment or supervision of the individual requiring care.
Types of Family Leave
Intermittent Leave is leave “taken in separate periods of time because of pregnancy, rather than for one continuous period of time”. (Cal. Code Regs. Tit. 2, § 11035(o).
Pregnancy Disability Leave is any family care leave, paid or unpaid, used by an employee for up to four months for which she is disabled or affected by pregnancy. (Cal. Code Regs. Tit. 2, § 11035(q).
Workplace and Employee Rights
- In California, it is illegal for an employer to discriminate, refuse to hire, fire, suspend or expel any individual if they are exerting their right to family care and medical leave or are making an inquiry about such. §12945.2. (k)
- California law protects employees returning to work following parental leave. First, the law provides that while the employee is on family leave, they still “retain employee status with the employer,” meaning that all employee benefits shall continue.
- Additionally, returning to the workplace, an employee will be reinstated to the same position or comparable position prior to leave. The employee will return “with no less seniority” than before leave “for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.” [Cal. Code Regs. Tit. 2, § 11035(i)(j)].
- According to California state law, women in the workplace who are considered to be “eligible female employees” are employees which qualify for coverage under their employer’s group health plan. Furthermore, an employee’s pregnancy, childbirth, or related medical conditions cannot be used to make an employee ineligible for coverage. This also includes transgender parents who are affected by pregnancy or disabled by pregnancy. [Cal. Code Regs. Tit. 2, § 11035(g).
Contact Pride Legal
If you or a loved one has more concerns about your rights to paternal leave, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.