Family and Maternity Leave in California

Maternity Leave in California

Maternity leave in California is designed to ensure that expecting employees are protected. California, through a combination of laws, has created a way to give its citizens a path to enjoy time with a growing family without the stress of needing to work to make ends meet. Starting or expanding a family comes with many new moments that are both exciting and exhausting. For many expectant parents, there can be additional worries with taking time off work to recover from childbirth, bond with their new child, or both.

While some states do not protect or offer family leave in a way that both protects employees and their positions and ensures that the family members receive pay in some way, California has found a middle ground to keep everyone happy. California maternity leave laws can be divided into three main sections:

  • family leave under the California Family Rights Act,
  • pregnancy disability leave,
  • and reasonable accommodation leave.

Each of these may be used individually or combined for up to seven months of leave or more if the right circumstances are met. Expectant families should understand the rights afforded to them under these provisions and the ways to enforce these rights when an employer fails to follow the law.

This article will outline the types of family leave, who qualify for these benefits, and how to properly request maternity leave from an employer. Additionally, because none of these types of family leave require an employer to pay employees while they are on leave, this article will outline the Paid Family Leave Act and how California ensures that employees receive payment for their time off.

Finally, this article will outline the steps to take if you feel that you may have been discriminated against while seeking relief under one of these programs. We seek to ensure that eligible employees can access the leave they need in California and understand how to enforce these rights.

The California Family Rights Act (CFRA)

Family and maternity leave in California are outlined under the California Family Rights Act (CFRA). The CFRA is the standard for ensuring that employees can take time off to bond with their newborns and are guaranteed to have the same or comparable position when they return. There are several key characteristics found in the CFRA that outline who is eligible for leave in California.

Covered Employer

The first aspect of the CFRA that needs to be defined is a covered employer, which sets the limits on which companies and employers need to provide this leave under the CFRA. A covered employer is an employer with five or more employees. Most California employers will meet this criteria.

This helps protect companies that depend on four or fewer people from having to hold a spot open when that position covers a quarter or more of the workload for the organization. Companies with less than five workers are legally allowed to fire or demote people who need extended time off. However, it does not bar employers with under five employees from providing this leave, and many small companies will do so in some capacity.

Eligible Employees

In addition to working for a covered employer, the employee must meet the eligibility requirements to be considered an eligible employee. An employee must have worked for an employer for 12 or more months before the CFRA family leave date. Additionally, within the last 12 months, the employee must have worked at least 1,250 hours for the covered employer, which is roughly 25 hours a week for 50 weeks. This limits the availability of this leave to people who have worked at least part-time most of the year.

Importantly, this leave can be taken by both male and female employees and allows them time to bond with their new child. The New Parent Leave Act ensured that new fathers are not barred from taking more time off to spend with their children.

Qualifying Event

If an employee meets the eligibility requirements and works for a covered employer, they must still have a qualifying event in their lives to be able to take this leave. This leave will take place immediately around a child’s arrival, whether the child arrives through birth, adoption, or foster care placement.

This expanded definition from just birth to other instances where a child may enter the family and the family may need time to adjust. This is especially necessary for a foster care placement because it helps the child familiarize themselves with a whole new environment. It also ensures time away from work for parents who were often left out of the equation, such as members of the LGBTQIA+ community that may not give birth but are welcoming a child all the same.

The Leave

The CFRA allows an eligible employee to take up to twelve weeks, or three months, of unpaid leave. For those not giving birth, employers may ask that you provide reasonable notice of your intent to take leave. In most cases, reasonable notice is about 30 days out from when you intend to be off, but the timeline can be extended or shorted depending on the type of work a person does and the time frame that follows, such as an early birth or an emergency placement for a foster child. For those going on maternity leave, it can be helpful to provide advance notice as well.

Family leave does not need to be taken at one time, but the twelve weeks can be used at any time and for any length within a calendar year of the qualifying event. California employers are allowed to require employees to take no less than two weeks at a time, but California employees are still allowed at least two instances where they take less than two weeks off.

Additionally, employers are required to keep employees on their benefits plan if they are enrolled while they are on leave and may need to contribute to certain benefits that they normally would, such as state disability insurance or other programs from the payroll.

Same or Similar Job

It also means that the new parents’ jobs are protected and they are guaranteed the same or comparable job when they return from parental leave. When a parent returned from leave in California, an employer is required to either give them their old job back or provide a new job that is equivalent or substantially similar in terms of pay and benefits, schedule and location, and conditions and status.

Family and Medical Leave Act (FMLA)

Additionally, there is a federal law that has similar parameters for leave in the entire United States. This is called the Federal Family and Medical Leave Act. It gives employees the right to take maternity leave or family leave due to the birth, adoption, or foster care placement of a new child or leave to care for a family member who has a serious health condition.

California maternity leave laws ensure that new parents can bond with a child and have confirmation that they left their job protected. As granted by the maternity leave laws, leave does not guarantee on its own that a person will be paid, however.

Pregnancy Disability Leave

Another way that a mother can extend or take maternity leave in California is to take unpaid pregnancy disability leave. This is unpaid leave for up to four months that allows pregnant employees to take time away to heal from or deal with a pregnancy-related disability.

Eligibility Requirements

The eligibility requirements for pregnancy disability leave are similar to those of family and maternity leave, such that the employer must have five or more employees. However, there are no eligibility requirements for the length of time or number of hours worked for an employee to be granted this leave under the pregnancy disability leave law. It differs from maternity leave in California in this way to protect all women.

Disability Defined

The major difference here is that the person requesting the leave must need to take the leave due to pregnancy-related disabilities or another physical or mental disability that is worsened or exacerbated by the pregnancy. To qualify for pregnancy disability leave, pregnant employees must be deemed to have a pregnancy-related disability as witnessed and attested to by their doctor. A disability, as it is defined by the law, means that pregnancy, childbirth, or a related medical condition makes it difficult to perform one or more essential functions of their job.

Common Timelines

For many pregnant employees, the last month of pregnancy can be incredibly physically demanding, to the point where they are unable to do much outside of rest. Sitting at a desk can become difficult or impossible, and other tasks are too strenuous for their bodies as they prepare to give birth. Many doctors will support the finding that a pregnant person has a disability when they reach this stage.

Still, other women face a range of symptoms and issues throughout their pregnancy that can limit their ability to do work, such as severe morning sickness or hypertension that requires bed rest. For these symptoms, some doctors will encourage or require pregnancy disability leave earlier in the pregnancy.

Pregnancy disability leave in California seeks to address these concerns by allowing pregnant California employees to take up to four months nonconsecutively. This means that a pregnant employee could take a few weeks at one point in the pregnancy and take the rest of the pregnancy disability leave after the child’s arrival.

This flexibility can be incomparable and the assurance that the job will be there when they return, even if they are not paid for the time off, can give them peace of mind that they may not have otherwise.

Finally, the recovery time for most pregnancy-related disabilities runs from six to eight weeks after birth. This is dependent on the birth experience and the rate of recovery, especially in the case of surgery, where most people need up to eight weeks to recover. However, most doctors will recommend that people who have given birth are at home for at least six weeks to recover.


Most pregnancy disability leave is unpaid for California employees. California employers are not required to provide pay under the pregnancy disability leave law unless the employer pays temporary disability pay to similarly situated employees that take a temporary disability leave. If they do make these payments, people on pregnancy disability leave are legally entitled to compensation like similarly situated employees.

Reasonable Accommodation Leave

Another option for extended maternity leave is the possibility of a reasonable accommodation leave based on a pregnancy-related disability that stops a child-bearing person from performing the essential duties of their job. This leave is only really used when a person has exhausted both maternity leave under the CFRA and pregnancy disability leave.

This option arises under California’s standards for fair employment and bars California employers from discriminating against a person based on their physical or mental disability. Employers are required to make reasonable accommodations for employees who need changes to their work environment to help them complete their job. For a pregnancy-related disability, this may include taking an extended leave to heal.

Eligibility Requirements

The eligibility requirements for reasonable accommodation leave are more strictly reliant on the person that need the leave. The employer must be a covered employer, which means they must have five or more employees. The employee, on the other hand, must meet the eligibility requirements to have their job protected longer than it traditionally is.


The employee must show that they have a qualifying physical or mental disability that interferes with their ability to do the essential functions of their role. The law surrounding disability states that the disability must interfere with a life activity more than just a mild condition or injury. This disability must affect them in such a way that they cannot perform their role effectively without additional accommodation.

Physical disability is common in traumatic births or with other physical conditions that accompany pregnancy and may need additional time to heal or recover. The process of giving birth is physically taxing, and some bodies, especially if there are other physical conditions at play, may need additional time to recover from the birth process.

Disabilities can also be mental, meaning that the emotional or psychological impacts interfere with the performance of a job. A pregnancy-related disability can often be tied to the physiological impact of the range of hormones and other changes that take place in a body during and after pregnancy.

The most common form of mental disability that results from pregnancy is postpartum depression, which is a severe depression that impacts people shortly after they give birth due to the shift and changes in hormones. Other mental illnesses and disability may be exacerbated by the shifts in the body before, during, and after giving birth.

Capacity with Accommodation

Another one of the eligibility requirements for a reasonable accommodation to extend maternity leave is that the employee must show that the extension or other accommodation will allow them to perform their duties effectively. The accommodation is an adjustment to the work environment to help the employee perform the essential functions of the job more effectively. This is most commonly demonstrated by a doctor’s note or diagnosis that the condition will likely improve if the leave is extended.

It is important to note that extended leave or other accommodations are often granted only if they will help the employee perform the essential duties of their job. Employers are allowed to terminate an employee if they are unable to perform these duties, even with an accommodation.

The essential functions of a job include the reasons that the job exists in the first place and any function that cannot be adequately divided among other employees. Because of this, it is crucial to demonstrate that extended leave will give the employee time to properly heal to perform the work effectively.

Undue Hardship

The final requirement of requesting reasonable accommodation leave is to demonstrate that the extended leave will not cause an undue burden or hardship on the employer. When a company denies reasonable accommodation leave, the most common route is to challenge this denial and termination in court.

Courts have established the following factors to determine whether the request would create an undue hardship for the business enough to deny the request. They weigh each of these factors and others that may be brought up to determine if the hardship is undue.

The Accommodation Itself

The first factor the court will consider is the actual cost and nature of the accommodation. Because some accommodations will require modifications to the workplace itself or for the company to provide additional equipment. Most of the time, these requests are reasonable and the reasonable accommodation will be granted.

However, when the request is for additional unpaid leave, the cost can go either way. On one hand, the employer will not need to pay the employee. But if the company cannot find other people to cover the tasks, they may need to hire a temporary person, which can cost the company the paid time for the temporary workers to perform. This can go either way depending on the time needed.

Financial Resources

A court will also weigh the financial resources of the employer against the cost of the accommodation. If a company has vast resources, there will often not be an undue hardship. However, if the company is small or has limited resources and the cost is high, it could be considered an undue hardship to make the company pay for the reasonable accommodation.

Size of the Employer

This most frequently is an issue in smaller companies where a large number of tasks are divided among a small number of people. If a lasting leave would cause all the other employees to take on additional tasks for an extended time, it could result in undue hardship, especially if other factors weigh against the accommodation being reasonable.

Impact on the Business

Another common factor that is weighed is the impact of the accommodation on the overall operations of the employer. If the accommodation would impact parts of the operations, the court will often find that it is a hardship.

This is common when the person requesting additional leave is a manager or other important role that cannot be filled easily, such that the impact is felt throughout the company. This can also cause hardship if the cost or nature of the accommodation would cause the business to be impacted.

When Accommodation is Necessary

When a person has given birth and needs additional time to recover based on a pregnancy-related disability, a reasonable accommodation may be the best option. If the eligibility requirements are met, an employee may be able to extend their maternity leave in California. California’s anti-discrimination laws do require that an employer and employee participate in an interactive process to ensure that they can find a way to accommodate the disability if possible.

How Long Is Maternity Leave in California

Given all of these options for leave, it can be difficult to determine how long an employee is allowed to be gone for maternity leave. All of these types of family leave may be taken back to back, for a total of seven months or more if a reasonable accommodation is requested.

Many people will take less than this, especially because this leave is not paid leave, it only guarantees that there is a same or similar job when they return. The financial hardship that the lack of paid time off for family leave causes many people to return to work more quickly than they would like.

How to Get Paid Maternity Leave

Because the financial hardship created by time off without pay can be difficult for many families, California has several programs to help families lessen the financial burden. Both of these programs are managed by the California Employment Development Department.

State Disability Insurance

Under the definitions of disability insurance, pregnancy, and childbirth are both considered disabilities and can allow a person who has given birth to collect state disability insurance while on family leave. For payment under this program, employees may be able to get 60 to 70% of their wages before the family leave started. This allows new parents to be able to continue to bond with their children and recover without having to worry about finances as much.

The caveat to this is that the person claiming the disability insurance will need to be able to show that they have a qualifying disability under the statute.

The California Paid Family Leave Program

California has also created the California Paid Family Leave Program, which gives new parents the ability to take paid parental leave to bond with their new child. This differs from the job-protected leave that is mentioned above because it gives parents the ability to spend time with their children and still get paid.

This pay differs from disability insurance because it does not require a disability to receive the payment. Additionally, fathers and adoptive parents qualify for paid family leave, which is not the case in other options. This allows both parents to take time off to bond with their new children, whether by birth, adoption, or foster care.

Payment for Up to Eight Weeks

This payment plan allows parents to receive payment for up to eight weeks at 60-70% of their pay within the last five to eighteen months. This paid leave gives parents and adoptive parents the option to spend time away from work to get to know a new child.

Using Time Off

Another option for parents to receive pay for their time off is to use their accrued time off. In some cases, an employer can require that the employee use these days instead of other options. This can be a good option if one has a lot of accrued time and would like to receive full payment. However, some people do not want to use this time and would prefer to take the pay cut for the time off.


Additionally, California law requires that employers continue to pay for health insurance during their leave. It is also illegal for employers to impose extra requirements on their employees to continue to receive benefits under their current employment.

On the other hand, employers are not required to provide additional vacation or sick days, nor are they required to contribute to retirement packages.

What to Do When You Are Denied Leave or Discriminated Against

If someone is denied leave for punished for taking leave, California’s fair employment laws provide protections and causes of action for recovery. It is illegal to discriminate against someone based on disability leave, and California’s Anti-Discrimination Laws explicitly prohibit this in employers with five employees or more.

This includes both maternity leave violations and other pregnancy discrimination. If you suspect that you have been discriminated against, you may want to contact an employment lawyer to determine if you have a claim. However, the following considerations can outline the basics to ensure that you talk about the right things.

To meet the elements of an unlawful pregnancy discrimination claim, you will need to prove that a covered employer took a negative employment action against the person which was motivated by pregnancy or the ability to become pregnant, and this action caused harm.

Covered Employer

A covered employer is an employee that regularly employs five or more employees, an agent of an employer, or a state or government agency. However, there are some exemptions, such as religious institutions and nonprofits. Additionally, the claim is against the employer itself, not any one individual that may or may not have discriminated against a pregnant person.

Covered Person

Another unique element of pregnancy discrimination is the range of people that the law covers. Apart from traditional employees, it also protects applicants, temporary employees, and unpaid interns.

A traditional employee is a person who is regularly employed by the employer, is on the schedule at least part-time, and whose role is under the control of the employer.

An applicant is anyone that has filled out a job application or that has expressed interest in being hired for a position.

Temporary employees are those who have been hired for a short amount of time, Most of the time, they are people who are sent by an outside agency to fill a position on a loan basis. They are not regularly employed by the employer but do work for them.

Interns are those that are hired to perform a skill in exchange for experience. They are most frequently in school for the subject matter that is the focus of the job.

The extension of this protection seeks to ensure that employers are not discriminating against anyone that works for them or comes in contact with them.

Negative Employment Action

A negative employment action is an action that interferes with the employment of a person. This can be at any stage from hiring to firing. An employer is not allowed to refuse to hire a person because they are pregnant or may become pregnant just as much as they are not allowed to fire an employee because they are pregnant. They also cannot interfere with an employee’s right to take maternity leave or refuse to provide reasonable accommodations.


Maternity leave in California is a vital part of the rights of women and those who can become pregnant to remain in the workforce while allowing them to spend time with their new children and recover from childbirth. It also allows foster parents to bond with a new foster child or adoptive parents to spend time with a child. When families are given the space to bond and recover, employees can return to work with new vigor and renewed sense of purpose. This benefits both employees and employers alike.

To learn more about maternity in California, employee rights, employee mediation, and more, check out the ADR Times knowledgebase!

Emily Holland
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