A miscarriage isn’t something women often speak about. What would’ve been a joyous occasion is instead marked with pain, except the damage isn’t visible. A miscarriage not only takes a physical toll on a woman’s body, but it can also affect her mental health. The last thing a woman who has lost her baby should be doing is arguing with an employer about why she can’t immediately bounce back to work.
The sad truth is that not all employers in California prioritize women’s pregnancy-related issues. Some employers may not entirely understand the intricacies of the Family and Medical Leave Act (FMLA) or the California Family Rights Act.
Below is an overview of how specific laws can help you take the time necessary to heal from the loss of a child.
Maternity Leave Laws
In a country that has yet to pass a federal law requiring employers to pay employees after childbirth, you can expect that taking time off after a miscarriage may be complicated. However, in California, most employees can take time off if they suffer a miscarriage.
The Family and Medical Leave Act (FMLA)
The FMLA is a federal law that entitles qualified employees time off work for reasons such as childbirth. The FMLA also enables eligible employees to take up to 12 work-weeks of leave and ensures that the employee’s job will be protected. That means that they can not be fired during qualified FMLA leave.
An eligible employee for FMLA purposes is an employee who worked for at least 12 months, has at least 1,250 hours of service during the 12 months, and works for an employer with at least 50 employees.
In addition to stating which employees are entitled to unpaid leave, the FMLA also details certain situations worthy of time off. The birth of a child and the ability to bond with a newborn child is clearly stated. Women who birth a child, in addition to fathers, are entitled to leave under the FMLA.
While the FMLA does not explicitly reference miscarriage, it does provide an employee leave when there is a serious health condition. To be considered a serious health condition, it must be something that makes the employee unable to perform their job functions. Suppose a woman is pregnant and suffers a miscarriage. In that case, she can take FMLA leave because it is considered a serious health condition related to pregnancy.
California Family Rights Act (CFRA)
Similar to the FMLA, the CFRA provides employees with up to 12 weeks of unpaid leave, which is also job-protected. Like the FMLA, there must be a qualified ground, such as a serious health condition, a serious health condition of a family member, childbirth, or to bond with a new child.
The CFRA applies to employers with 5 or more employees. While the CFRA specifically references those with a “serious health condition,” the CFRA usually is not for pregnancy-related conditions.
However, women who suffer a miscarriage are still entitled to time off under the Pregnancy Disability Leave. On January 1, 2021, California law required specific employers to provide employees with unpaid, job-protected leave if the employee was disabled by pregnancy or suffered a related medical condition. This is known as the Pregnancy Disability Leave (PDL)
PDL allows for time off when a woman needs time for the loss or end of pregnancy or any other related medical condition. Under this provision, miscarriage is included as unpaid, job-related leave. PDL also includes postpartum depression, anxiety, or related mental health issues. This is important to note because all these factors may be present after the loss of a child. The amount of time off is 4 months, so long as the person remains disabled.
Am I Entitled to Bereavement Leave?
In California, employers are not required by law to offer time off for grief or bereavement. While an employer is always able to offer time off, it isn’t federal law.
Contact Us
If you have experienced denial of leave due to a miscarriage, or another pregnancy-related medical condition, you may have been the victim of pregnancy discrimination. We’d encourage you to contact one of our specialized employment lawyers at SANFORD A. KASSEL, A Professional Law Corporation, at 909.884.6451 for a free consultation.
