The following provisions apply to leave taken for
disability because of pregnancy.
(a)
Four-Month Leave Requirement for all Employers. All employers must provide a
leave of up to four months, as needed, for the period(s) of time an employee is
actually disabled because of pregnancy, even if an employer has a policy or
practice that provides less than four months of leave for other similarly
situated, temporarily disabled employees. Pregnancy disability leave does not
need to be taken in one continuous period of time.
(1) Employees are eligible for up to four
months of leave per pregnancy, not per year. A "four month leave" means time
off for the number of days or hours the employee would normally work within
four calendar months (one-third of a year or 17 1/3 weeks). For a full time
employee who works 40 hours per week, "four months" means 693 hours of leave
entitlement, based on 40 hours per week times 17 1/3 weeks.
(2) For employees who work more or less than
40 hours per week, or who work on variable work schedules, the number of
working days that constitutes four months is calculated on a pro rata or
proportional basis.
(A) For example, for an
employee who works 20 hours per week, "four months" means 346.5 hours of leave
entitlement. For an employee who normally works 48 hours per week, "four
months" means 832 hours of leave entitlement.
(B) Leave on an intermittent leave or a
reduced work schedule.
An employer may account for increments of intermittent
leave using an increment no greater than the shortest period of time that the
employer uses to account for use of other forms of leave, provided it is not
greater than one hour. For example, if an employer accounts for sick leave in
30-minute increments and vacation time in one-hour increments, the employer
must account for pregnancy disability leave in increments of 30 minutes or
less. If an employer accounts for other forms of leave in two-hour increments,
the employer must account for pregnancy disability leave in increments no
greater than one hour.
(C)
If a holiday falls within a week taken as pregnancy disability leave, the week
is nevertheless counted as a week of pregnancy disability leave. If, however,
the employer's business activity has temporarily ceased for some reason and
employees generally are not expected to report for work for one or more weeks,
(e.g., a school closing for two weeks for the Christmas/New Year holiday or
summer vacation or an employer closing the plant for retooling), the days the
employer's activities have ceased do not count against the employee's pregnancy
disability leave entitlement.
(3) Although all pregnant employees are
eligible for up to four months of leave, if that leave is taken in one period
of time, taking intermittent or reduced work schedule throughout an employee's
pregnancy will differentially affect the number of hours remaining that an
employee is entitled to take pregnancy disability leave leading up to and after
childbirth, depending on the employee's regular work schedule.
(A) For example, a full-time employee, who
normally works a 40-hour work week is entitled to 693 working hours of leave.
If that employee takes 180 hours of intermittent leave throughout her
pregnancy, she would still be entitled to take 513 hours, or approximately
three months leading up to and after her childbirth.
(B) In contrast, a part-time employee who
normally works 20 hours per week, would be entitled to 346.5 hours of leave. If
that employee takes intermittent leave of 180 hours throughout her pregnancy,
she would be entitled to only 166.5 more hours of leave, approximately two
months of leave, leading up to and after her childbirth.
(4) Minimum Duration. Leave may be taken
intermittently or on a reduced work schedule when an employee is disabled
because of pregnancy, as determined by the health care provider of the
employee. An employer may account for increments of intermittent leave using
the shortest period of time that the employer's payroll system uses to account
for other forms of leave, provided it is not greater than one hour, as set
forth in section
11042(a)(2)(B).
(b) Employers with More Generous Leave
Policies. If an employer has a more generous leave policy for similarly
situated employees with other temporary disabilities than is required for
pregnancy purposes under these regulations, the employer must provide the more
generous leave to employees temporarily disabled by pregnancy. If the
employer's more generous leave policy exceeds four months, the employer's
return policy after taking the leave would govern, not the return rights
specified in these regulations.
(c)
Denial of Leave is an Unlawful Employment Practice. It is an unlawful
employment practice for an employer to refuse to grant pregnancy disability
leave to an employee disabled by pregnancy.
(1) who has provided the employer with
reasonable advance notice of the medical need for the leave, and
(2) whose health care provider has advised
that the employee is disabled by pregnancy.
The employer may require medical certification of the
medical advisability of the leave, as set forth in sections
11049(a) and (b),
and 11050(b).
