PREGNANCY DISABILITY LEAVE SCENARIOS

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1 PREGNANCY DISABILITY LEAVE SCENARIOS Disclaimer: The purpose of these Leave Scenarios is to provide common examples to assist you in working through some of the issues that might arise in the application of SB 299. Because these scenarios are simplified, and because there are important assumptions made in the written analysis of each scenario, please do not use these scenarios as a definitive guide in answering PDL/FMLA/CFRA questions. Assumptions: In the scenarios, we are assuming that the County is designating leave time as FMLA/CFRA, when the leave meets FMLA/CFRA criteria. To make the math easier, we have assumed that 4 weeks = 1 month, and vice versa. We are not worrying about notice issues, or any of the other procedural issues involved with taking leave under FMLA/CFRA/PDL; and we are assuming the employee wants her health insurance maintained and makes all of the proper requests. We have taken out of the equation any legal requirements mandated by state or federal disability law (i.e., the interactive process and the need to accommodate). We are ignoring any relevant MOU language that may grant Parenthood Leave for a period longer then is legally required under PDL/FMLA/CFRA The following analysis does not take into consideration all of the other possible legal issues that might arise in these scenarios. Again, we are just looking at PDL/CFRA/FMLA leave requirements 12/15/11 Page 1 of 7

2 PREGNANCY DISABILITY LEAVE SCENARIOS: Scenario #1 Jane works until 2 weeks prior to her expected due date, when her doctor puts her on disability leave. She delivers her baby on March 1, 2012 via natural birth. Because it is standard practice for a doctor to put a woman who has given birth natural on disability leave for 6 weeks recovery (8 weeks for a C- Section), Jane will take 6 weeks of disability leave after the birth. She then plans to take 6 weeks of baby bonding time immediately after that, and another 6 weeks of bonding leave 6 months later, after returning to work. How much time is Jane entitled to take off of work and how long is the County obligated to maintain and pay for the employer s portion of her benefits? Pregnancy Disability Leave: Jane takes 2 weeks of disability leave prior to the birth, and another 6 weeks after. She uses both PDL and FMLA concurrently for the 8 weeks of leave, and the County must maintain and pay its portion of her medical insurance premiums for all 8 weeks (as is required under both laws). Going into the bonding leave, she still has 4 weeks of FMLA leave available. Bonding Leave: Along with the 4 weeks of FMLA leave available, Jane also has her full 12 workweek allotment of CFRA leave left, because CFRA does not apply to pregnancy disability leave. She is allowed to take her CFRA leave intermittently, so splitting the 12 weeks up is permissible. CFRA leave and FMLA leave run concurrently during bonding leave. However, the County is obligated to maintain and pay its portion of medical insurance for a total of 12 work-weeks combined between FMLA and CFRA leave during the calendar year, and she has already used 8 weeks during her pregnancy disability leave. Therefore, she can take the 12 weeks of bonding leave under CFRA, but the County is obligated to maintain and pay its portion of the medical insurance for only the first 4 weeks, during which her FMLA leave is running concurrently, and then is exhausted. Note, however, that if her second 6 week block of bonding leave goes into the next calendar year, her leave balances would be refreshed, along with her right to have her insurance maintained. 12/15/11 Page 2 of 7

3 Scenario #2 Jane just had her baby by natural birth on November 4, 2011, and will be disabled by pregnancy for 6 weeks thereafter. She informs her supervisor she intends to take 12 weeks leave for bonding once her disability leave is complete. How much time is Jane entitled to take off of work and how long is the County obligated to maintain and pay for the employer s portion of her benefits? Pregnancy Disability Leave: Because of her natural birth, Jane will be out 6 weeks on disability due to childbirth and recovery, and that time will run concurrently against both her FMLA and PDL leave balances. Under both laws, the County is obligated to maintain and pay its portion of medical insurance during that time. Her disability leave will end in the middle of December. However, if Jane s doctor extends her leave, her pregnancy disability leave could be extended into January, and she would have a new bank of PDL and FMLA leave, along with her right to have her insurance maintained. Bonding Leave: Assuming, however, that she starts her bonding time in the middle of December, after 6 weeks of recovery, Jane will still have 12 work-weeks of CFRA leave available, along with 6 weeks of FMLA leave left. During the last 2 weeks of December, she will be on bonding leave, and her leave will count against both her FMLA and CFRA balances. Her insurance must be maintained during that time, pursuant to both laws. On the last day of December, Jane will have 4 weeks of FMLA leave left, along with 10 weeks of CFRA leave remaining. Come January 1, however, a new calendar year will arrive and all of Jane s leave balances will refresh. Jane still has 10 weeks of bonding time left, and now has 12 full workweeks of both FMLA and CFRA leave to draw from. Both FMLA and CFRA leave will run concurrently during the 10 week bonding leave, and because it is a new calendar year, the County will be obligated to maintain and pay Jane s medical insurance during the entire leave. At the end of her 12 weeks of bonding, Jane would still have 2 weeks remaining in her FMLA and CFRA leave balances, if she wanted to continue the bonding. 12/15/11 Page 3 of 7

4 Scenario #3 Jane s doctor puts Jane on disability leave three months prior to her expected due date in June. She delivers her baby via C-Section. Jane informed her supervisor that she would like to take the full 12 weeks bonding leave once her disability leave is finished. How much time is Jane entitled to take off of work and how long is the County obligated to maintain and pay for the employer s portion of her benefits? Pregnancy Disability Leave: Jane will be disabled for 3 months prior to her delivery date, and that time will run against both her FMLA and PDL leave balances, and the County will be obligated to maintain and pay its portion of medical insurance during that time. At the end of that period, Jane will have exhausted her FMLA leave (12 weeks), and will have 1 month of PDL still available. Once the baby is born, because of the C-section, Jane will be out on disability an additional 8 weeks. She will use her 1 month of available PDL during the first 4 weeks (with the County maintaining and paying its portion of medical insurance during that time), and then will find herself with 4 more weeks of disability to go, with no PDL or FMLA leave left. At that point, Jane is entitled to begin her CFRA bonding period early, despite the fact that she would still technically be disabled for 4 more weeks. Bonding Leave: By the time she begins the bonding period, she will have used all of her FMLA leave and will still have 12 weeks of CFRA available. The first 4 weeks of her bonding period will be during the last 4 weeks of her disability leave, and then she will get 8 more weeks of true bonding time. However, because she already hit the 12 week cap for having her insurance paid for under CFRA or FMLA (when she was on PDL leave), the County will not be obligated to pay its portion of her medical insurance during any of the 12 week CFRA leave period, including the last 4 weeks of her disability. 12/15/11 Page 4 of 7

5 Scenario #4 Jane takes 12 weeks off beginning in January 2012 to take care of her ill mother. In May, she informs her supervisor that she is 6 months pregnant and her doctor is putting her on disability leave due to a high-risk pregnancy. She is planning to take the 12 weeks baby bonding after the disability leave. How much time is Jane entitled to take off from work and how long is the County required to maintain and pay for the employer s portion of her benefits? Leave to Care for Family Member: Jane s leave to care for her mother in January is covered by both FMLA and CFRA, so she would use leave balances under both laws concurrently during that time. Both CFRA and FMLA require that the County maintain and pay for its portion of medical insurance during such leave. At the end of the 12 weeks, Jane would have used up all of her allotted 12 weeks of CFRA and FMLA leave for the calendar year. She has not used any PDL. Pregnancy Disability Leave: At the point that Jane leaves for her pregnancy disability in May, when she is 6 months pregnant, Jane has 4 months of available PDL. SB 299 requires the County to maintain and pay for its portion of medical insurance during this entire 4 month period. By August (3 months later), when the baby is born, Jane has used 3 of her 4 months of her PDL. Assuming she has a normal birth, her disability would continue 6 more weeks while she is recovering. But, Jane only has 1 month of PDL remaining. Once that 1 month is done (in September) Jane s PDL will be exhausted and she will still technically be disabled for 2 weeks, but without any remaining PDL, FMLA or CFRA balances for that calendar year. At that point, Jane is not legally entitled to take any further leave under those laws, nor would the County be legally obligated to continue to pay for her medical insurance. Bonding Leave: If, however, the County agrees to let her continue her disability leave for the final two weeks, Jane will then come to the point where she wishes to take bonding leave. Again, however, Jane will not be entitled to any further leave under FMLA, CFRA or PDL. Jane will have to wait until January, when the new calendar year begins and Jane is eligible for leave under CFRA, FMLA and PDL. In January, Jane will get 12 more weeks of leave (assuming she meets the eligibility requirements), and because she is entitled to take bonding leave up to 12 months after the baby is born, she may use her new balances to bond with the child, as long as she does so within a year after the birth of her baby. 12/15/11 Page 5 of 7

6 Scenario #5 Jane s doctor puts her on disability 4 weeks prior to her expected due date. She delivers her baby natural birth on February 14, 2012, and will be disabled for 6 additional weeks for childbirth recovery. She then plans on taking the 12 weeks baby bonding immediately after her disability leave. She gets busy with adjusting to her life as a new mom and forgets to send in her health insurance premium for March How much time is Jane entitled to take off from work and how long is the County required to maintain and pay for the employer s portion of her benefits? Pregnancy Disability Leave: Jane takes 4 weeks off prior to the birth, which runs concurrently against both her PDL and FMLA leave balances. Under both PDL and FMLA, the County is required to maintain and pay its portion of her medical insurance during that time. Once the baby is born, because she gave birth naturally, Jane will get another 6 weeks of disability leave for recovery. This leave will, again, count against both her PDL and FMLA leave balances, and the County will be required to maintain and pay its portion of medical insurance under both laws. Once Jane is no longer disabled, Jane will have exhausted a total of 10 weeks of her FMLA and PDL leave balances. If, however, Jane fails to send in her portion of the health insurance premium, the County s legal obligation to maintain health insurance may cease under FMLA, if Jane has not paid the invoice before the end of the grace period for cancellation. Under PDL law (and SB 299), however, there is currently no specific authority allowing the County to cancel coverage, but it is very likely the County would have the right to do so. There will probably be more specific guidance on this in the future. Before then, however, the County is taking the position that it can terminate coverage. Bonding Leave: At the conclusion of Jane s disability leave, she would still have 2 weeks of FMLA leave available, as well as her entire 12 weeks of CFRA leave. For the first 2 weeks of her bonding leave, both her FMLA and CFRA leaves would run concurrently and the County would be obligated to maintain and pay its portion of her medical insurance (unless it had been cancelled because of her non-payment). At the end of those two weeks, she would have exhausted her 12 weeks of FMLA and would still have 10 weeks of CFRA remaining. Also, she would have met her 12 week limit for having her medical insurance paid for under FMLA or CFRA, and the County s obligation to maintain and pay its portion of her insurance would cease. But, she could nonetheless continue her 10 weeks of bonding leave under CFRA without the County paying its portion of her medical insurance. When Jane finally returned to work, if her insurance had been cancelled due to non-payment, once her HR Department has entered the return from leave in the CAPS+/HR system, the Benefits Center will be notified and she will receive a return from leave packet regarding her benefits options and the effective dates. 12/15/11 Page 6 of 7

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