Managing Pregnancy Leave

“My employee, Jane, is pregnant and asking what happens during her pregnancy and after the delivery. I don’t have a clue what to tell her. Help!”

Your HR Survival Tip

Did you remember to congratulate Jane? Often your concerns about how to operate your business without Jane can make you forget what an exciting time this is for her.

Both expectant mothers and expectant fathers want to know what they can and can’t do at this time so you need to have the answers for them. You also need information about what you, the employer, can and can’t do. One place to start is by giving Jane the Pregnancy Leave and the Paid Family Leave brochures again (these were part of the required new hire paperwork) because it gives you both a few answers. There’s also a pregnancy notice flyer you must give her as soon as you’re aware of the pregnancy.

The biggest misunderstandings are based on the differences between companies that are subject to FMLA (Family/Medical Leave Act, when you have 50+ employees) and companies that are not subject to FMLA (<50 employees). Jane will hear from friends and family about her rights and you’ve probably heard from other business owners how hard it was to manage without the employee. All those stories need to take into account the size of the company because this makes a huge difference for both you and Jane.

You are subject to the Pregnancy Disability Leave if you have 5 or more employees, which means the following probably pertains to your company. These are answers to several of the most common questions we’re asked:

• Jane cannot voluntarily stop working before her doctor is willing to provide the state proof she is medically disabled and unable to work. You, as the employer, want to receive that note from the doctor before Jane stops working or as soon as possible after that. Once you get the doctor’s note that she’s to stop working, do your calculations and give her the precise date she’s expected to return (or earlier). If she doesn’t return on that date and hasn’t made other arrangements with you, it could be considered a resignation.
• You can only put someone temporarily into Jane’s position. The laws protect her job and she should return to the same “or (very) similar” job. Yes, even if you discover Jane wasn’t doing the job as well as you thought!
• You are required to continue her insurance coverage, if any, and Jane is required to send you the co-pays you normally deducted from her checks.
• The length of leave possible has two answers. If you have under 50 employees, Jane is legally allowed only the amount of time her doctor can show she is medically disabled but this is standardized at about 8 weeks unless there are medical issues. If you have over 50 employees, Jane can take the full 12 weeks allowed by FMLA (493 hours under CA’s Pregnancy Disability Leave law). The company may offer additional unpaid leave that isn’t legally required but please consider it as more protected time off, just to be safe.
• Jane may apply and receive supplemental income (~60% of her pay) through CA’s state disability insurance for 6 weeks. She will also be eligible for Paid Family Leave’s supplemental income for up to another 6 weeks… however, this is not a leave, it’s supplemental pay for the mother or father only if they are otherwise eligible for a leave. Whether or not she receives Paid Family Leave pay will likely depend on whether you are subject to FMLA or you have allowed her to be off work longer than her medical disability leave requires.
• Baby bonding time is only legally available if you are subject to FMLA (>50 employees). Fathers have no paternity leave legally available at this time if you have <50 employees. The company may agree to a period of unpaid time off that isn’t legally required.
• Available paid sick leave can be used by Jane or by the father during her maternity leave. You can require Jane to use her sick leave (which I recommend) and you can allow, but not require, her to use any vacation or PTO.
• Time off due to the pregnancy (morning sickness, doctor visits, etc.) before delivery counts against the total FMLA and Pregnancy Disability Leave allowed. Yes, even if they use Paid Sick Leave or PTO.
• Jane must send you a doctor’s note stating she is able to return to work, when she’s ready to return. Jane must return when her doctor releases her (<50 employees) or as soon as her 12 weeks of FMLA / 493 hours of Pregnancy Disability Leave is used up. Her job protection ends at that point.
• If Jane wants to only come back part-time, you are not legally obligated to provide any change to her job. First, let her know her same job is available and that she needs to provide in writing that she doesn’t want it. Now you can discuss her options and preferences but it’s totally up to the company to agree to any changes in her previous position.

Pregnancy is a fact of life. Prepare for the inevitable by making sure some of your employees are cross-trained so absences of any kind are easier to manage. While Jane’s absence might be hard on you temporarily, I’ve never heard of a company going under simply because an employee (at any level) had a baby.