Cal. Code Regs. tit. 2 § 11093

Current through Register 2021, No. 22, May 28, 2021
Section 11093 - Relationship between CFRA Leave and Pregnancy Disability Leave; Relationship between CFRA Leave and Non-Pregnancy Related Disability Leave
(a) Separate and Distinct Entitlements.

The right to take a CFRA leave under Government Code section 12945.2 is separate and distinct from the right to take a pregnancy disability leave under Government Code section 12945 and section 11035 et seq. of the regulations.

(b) Serious Health Condition - Pregnancy.

An employee's own disability due to pregnancy, childbirth or a related medical condition is not included as a serious health condition under CFRA. Any period of incapacity or treatment due to pregnancy, including prenatal care, is included as a serious health condition under FMLA.

(c) CFRA Leave after Pregnancy Disability Leave.

At the end of the employee's period(s) of pregnancy disability, or at the end of four months of pregnancy disability leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks for reason of the birth of the employee's child, if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition in order for the employee to take CFRA leave. There is also no requirement that the employee no longer be disabled by the employee's pregnancy, childbirth or a related medical condition before taking CFRA leave for reason of the birth of the employee's child.

(1) Where an employee has utilized four months of pregnancy disability leave prior to the birth of the employee's child, and the employee's health care provider determines that a continuation of the leave is medically necessary, an employer may, but is not required to, allow an eligible employee to utilize CFRA leave prior to the birth of the employee's child. No employer shall, however, be required to provide more CFRA leave than the amount to which the employee is otherwise entitled, but this does not excuse the employer's other obligations under the FEHA, such as the obligation to provide reasonable accommodation under the disability provisions, where applicable.
(d) Maximum Entitlement.

The maximum possible combined leave entitlement for both pregnancy disability leave (under FMLA and Government Code section 12945) and CFRA leave for reason of the birth of the child (under this article) is four months and 12 workweeks. This assumes that the employee is disabled by pregnancy, childbirth or a related medical condition for four months and then requests, and is eligible for, a 12-week CFRA leave for reason of the birth of the employee's child. This maximum entitlement does not include leave provided as a reasonable accommodation for a physical or mental disability under the FEHA.

(e) Disability Leave.

The right to take a CFRA leave under Government Code section 12945.2 is separate and distinct from the right to take a disability leave under Government Code section 12945 and section 11064 et seq. of the regulations. If an employee has a serious health condition that also constitutes a disability as defined by Government Code section 12926 and cannot return to work at the conclusion of the employee's CFRA leave, the employer has an obligation to engage that employee in an interactive process to determine whether an extension of that leave would constitute a reasonable accommodation under the FEHA.

Cal. Code Regs. Tit. 2, § 11093

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12945 and 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 and 2651; and 29 C.F.R. § 825.

1. Change without regulatory effect renumbering former section 7297.6 to new section 11093 and amending section and Note filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of section heading and section filed 3-4-2015; operative 7-1-2015 (Register 2015, No. 10).
3. Amendment of section heading, section and Note filed 7-6-2020; operative 10-1-2020 (Register 2020, No. 28).
4. Change without regulatory effect amending section heading, section and Note filed 12-30-2020 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 1). (OAL review extended 60 calendar days pursuant to Executive Order N-40-20.)
5. Change without regulatory effect amending subsection (c) filed 1-21-2021 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 4).