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§ 11044. Terms of Pregnancy Disability Leave.


Barclays Official California Code of Regulations Currentness
Title 2. Administration
Division 4.1. Department of Fair Employment and Housing
Chapter 5. Fair Employment and Housing Council
Subchapter 2. Discrimination in Employment
Article 6. Pregnancy, Childbirth or Related Medical Conditions
2 CCR § 11044
§ 11044. Terms of Pregnancy Disability Leave.
(a) Paid Leave. An employer is not required to pay an employee during pregnancy disability leave unless the employer pays for other temporary disability leaves for similarly situated employees. An employee may be entitled to receive state disability insurance for a period of disability because of pregnancy and may contact the California Employment Development Department for more information.
(b) Accrued Time Off
(1) Sick Leave. An employer may require an employee to use, or an employee may elect to use, any accrued sick leave during the otherwise unpaid portion of her pregnancy disability leave.
(2) Vacation Time and Other Accrued Time Off. An employee may elect, at her option, to use any vacation time or other accrued personal time off (including undifferentiated paid time off (PTO)) for which the employee is eligible.
(c) Continuation of Group Health Coverage
(1) An employer shall maintain and pay for group health coverage for an eligible female employee who takes pregnancy disability leave for the duration of the leave, not to exceed four months over the course of a 12-month period per pregnancy, beginning on the date the pregnancy disability leave begins, at the same level and under the same conditions that coverage would have been provided if the employee had not taken pregnancy disability leave.
(A) An employer may maintain and pay for coverage for a group health plan for longer than four months.
(B) If the employer is a state agency, the collective bargaining agreement shall govern the continued receipt by an eligible female employee of health care coverage under the employer's group health plan.
(2) The time that an employer maintains and pays for group health coverage during pregnancy disability leave shall not be used to meet an employer's obligation to pay for 12 weeks of group health coverage during leave taken under CFRA. This shall be true even where an employer designates pregnancy disability leave as family and medical leave under FMLA. The entitlements to employer-paid group health coverage during pregnancy disability leave and during CFRA are two separate and distinct entitlements.
(3) An employer may recover from the employee the premium paid while the employee was on pregnancy disability leave if both of the following conditions occur:
(A) The employee fails to return at the end of her pregnancy disability leave.
(B) The employee's failure to return from leave is for a reason other than one of the following:
1. Taking CFRA leave, unless the employee chooses not to return to work following the CFRA leave.
2. The continuation, recurrence or onset of a health condition that entitles the employee to pregnancy disability leave, unless the employee chooses not to return to work following the leave.
3. Non-pregnancy related medical conditions requiring further leave, unless the employee chooses not to return to work following the leave.
4. Any other circumstance beyond the control of the employee, including, but not limited to, circumstances where the employer is responsible for the employee's failure to return (e.g., the employer does not return the employee to her same position or reinstate the employee to a comparable position), or circumstances where the employee must care for herself or a family member (e.g., the employee gives birth to a child with a serious health condition).
(d) Other Benefits and Seniority Accrual. During her pregnancy disability leave, the employee shall accrue seniority and participate in employee benefit plans, including, but not limited to, life, short-term and long-term disability or accident insurance, pension and retirement plans, stock options and supplemental unemployment benefit plans to the same extent and under the same conditions as would apply to any other unpaid disability leave granted by the employer for any reason other than a pregnancy disability.
(1) If the employer's policy allows seniority to accrue when employees are on paid leave, such as paid sick or vacation leave, and/or unpaid leave, then seniority will accrue during any part of a paid and/or unpaid pregnancy disability leave.
(2) The employee returning from pregnancy disability leave shall return with no less seniority than the employee had when the leave commenced.
(e) Employee Status. The employee shall retain employee status during the period of the pregnancy disability leave. The leave shall not constitute a break in service for purposes of longevity and/or seniority under any collective bargaining agreement or under any employee benefit plan. Benefits must be resumed upon the employee's reinstatement in the same manner and at the same levels as provided when the leave began, without any new qualification period, physical exam, or other qualifying provisions.
Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12926, 12940 and 12945, Government Code; FMLA, 29 U.S.C. § 2601, et seq. and FMLA regulations, 29 C.F.R. § 825; Pregnancy Discrimination Act of 1978 (P.L. 95-555, 42 U.S.C. § 2000e, § 701(k)), an amendment to Title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).
1. Change without regulatory effect renumbering former section 7291.11 to new section 11044 and amending Note filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of subsections (c)-(c)(1) filed 12-9-2015; operative 4-1-2016 (Register 2015, No. 50).
This database is current through 11/12/21 Register 2021, No. 46
2 CCR § 11044, 2 CA ADC § 11044
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