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She delivered a baby two weeks after the FMLA/Pregnancy Disability Leave (PDL) expired. What do you do?

Question:

Have you ever encountered something like this?

An employee in California, Ellen, was having complications with her pregnancy. She was placed on FMLA / Pregnancy Disability Leave (PDL), and then she had her baby two weeks after her FMLA/PDL expired. How do we handle the time between her PTO expiring and the day she had the baby? How much more time can she have off work? What kind of documentation is required? What if she continues to have medical issues after the baby is born?

Answer:

Ellen is eligible up to 17 1/3 weeks of leave for pregnancy-related medical issues (PDL). 12 weeks of FMLA runs concurrently to PDL, so we start by assuring we have designated the PDL/FMLA leave formally with written notification.

Once PDL has exhausted, Ellen is now eligible to take CFRA Baby Bonding Leave, whether she has had the baby or not. If you consistently require all employees to provide documentation regarding adoption and foster care child responsibility start dates, you can also require confirmation of the employees’ delivery date. The medical provider should then confirm Ellen’s estimated recovery time.  The typical vaginal birth will require 6 weeks of recovery time, however, rely on the medical provider’s notification regarding the recovery time each woman needs based on her situation. 

In this situation Ellen may have a medical condition that is impacted by the pregnancy and or the birth that is potentially impacted by the pregnancy and/or birth itself. In this case she may be eligible for protection under ADA. Then, once the baby is born, if Ellen requires additional leave as a result of a medical disability (related to the pregnancy or not), that qualifies under the ADA, Ellen may be eligible for additional leave under the ADA – IF it is not an undue hardship. However, Ellen is also eligible for leave under CFRA Baby Bonding once PDL is exhausted, and CFRA BB maintains her health care benefits while protection under ADA does not. 

An employee may take CFRA BB once PDL/FMLA has expired whether she is eligible for ADA protection or not.  Note that if they were eligible for FMLA during PDL, they do not need to requalify for CFRA BB. (this also applies to SDI and PFL. Also, there is no longer a waiting period for paid family leave and the employee can have up to eight weeks of PFL starting July 1, 2020) One of the primary benefits of choosing to use CFRA BB is to maintain the integrity of continued health care coverage. ADA does not protect health care benefits.

Make sure you explain this to Ellen so she can make the choice that best fits her needs.  At all times, if the employee has exhausted their FMLA/PDL prior to having the baby, and your organization determined it is an Undue Hardship to provide leave as an accommodation under the ADA, make sure you are providing the employee the opportunity to take the leave under CFRA BB, even if they have not had the baby yet.

 

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