FMLA and PREGNANCY DISABILITY Sample Questions & Answers

Your Qs re Pregnancy Disability and Bonding:

I teach at an Elementary School. . . . I am a 2nd year teacher and will apply to clear my credential in July. I am due on September 5th and planning on taking off through December. Perspective: We could guess at the date in which you will no longer be disabled due to recovery from childbirth, however the date is only hypothetical since your doctor would be the one to certify this date. Let's presume that your doctor will be releasing you as physically able to return to work on Nov 1. Thus, the time from Nov 1 to Christmas/holiday break would be 6 additional weeks. The time taken before Nov 1 would be about 8 weeks.

I understand that I need to apply for a pregnancy leave and then a family medical leave? Is this correct? Perspective: Yes, but let's rephrase the question to be precisely accurate:

I understand that I need to apply for a pregnancy disability leave (with FMLA concurrently running with PDL), and then a bonding leave under CA Family Rights Act? Is this correct? Perspective: Yes

I heard that you continue to receive health benefits on the FMLA, but not on the Childcare leave. Is this true? Perspective: Yes, but again, let's rephrase the question to be precisely accurate:

I heard that you continue to receive health benefits on the FMLA with PDL, as well as CFRA bonding, but not on the Childcare leave (typically taken after CFRA bonding is over). Is this true? Perspective: Yes

If I don't have any full sick days left, do I get any pay? Perspective: You would receive your paid sick days (full-pay or half-pay) during the PDL/FMLA until the hypothetical date of Nov 1. You do Not receive any paid sick days during CFRA bonding. It is typically unpaid. The one exception for teachers is Personal Necessity (PN) or FMLA/CFRA PN. Yet PN or FMLA+PN does not pay unless the employee has a remaining balance of full-pay illness days.

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Your Qs re Pregnancy Disability:

. . . I have now made it past the 3 month precautionary period of my pregnancy and am due to give birth to a child on October 10, 2008. Pursuant to our meeting, could you please confirm that all of the information listed in numbers 1-5 below is accurate regarding my ability to take leave pursuant to the LAUSD leave policies? Perspective: Sure, I'll be quite willing to confirm or clarify.

1. I am entitled to take a Pregnancy Disability Leave during the time that my doctor authorizes in writing that I am “disabled” due to pregnancy. Typically this disability period is 6-8 weeks after delivery of a child. However, this disability period can be extended depending on my doctor’s recommendation of my “disabled” status, for example in the case I have complications due to pregnancy that make me disabled in my doctor’s opinion prior to delivery or any conditions after delivery that in my doctor’s opinion continue my disability, including but not limited to delivery by cesarean section. During my disability period, I may use any full-time illness pay that I have accrued to date and then any half-time illness pay that I have accrued to date. Perspective: All correct In order to take this Pregnancy Disability Leave, I must complete an Absence Form C: for Pregnancy, which covers my doctor’s recommended leave for disability before delivery and after delivery. Perspective: I'm not sure what "Absence Form C" is. It may be the Certification/Request of Absence for Illness/Family Illness/New Child. You need to complete the District's Absence form, a Request for Formal Leave from the appropriate personnel division, and the required and applicable medical certification(s).

2. Upon completion of my Pregnancy Disability Leave, I am also entitled to take a Child Bonding Leave/Kin Care, which can be for up to an additional 12 weeks. During this time I may use my vacation leave time. Perspective: Yes. An employee would need to be FMLA-eligible, such as having 130 workdays in the last 12 months prior to the pregnancy leave, assuming that the child bonding leave is taken immediately after PDL.

3. The above leave times in #1 and #2 must be approved by my supervisor. Perspective: I would say that all of the preceding must be acknowledged in writing by the supervisor. If all qualifying criteria are met, the supervisor has no right to deny approval. 4. If my last day at work is September 1, 2008 and my doctor approves my disability period for 68 weeks thereafter, my Pregnancy Disability Leave will conclude somewhere between October 13- October 27, 2008. Perspective: Yes, presuming that you deliver your baby on or about Sept 1. If the delivery occurs later, then the PDL will end later. If the delivery occurs earlier, then the PDL will end earlier.

5. If my last day of Pregnancy Disability Leave is somewhere between October 13- October 27, 2008, and I start my Child Bonding Leave immediately thereafter, I will need to return to work somewhere between January 5, 2009 and January 19, 2009 (depending on the start date and length of my Pregnancy Disability Leave). Perspective: I don't have a calendar in front of me, so I can't confirm this point precisely. Yet these dates appear accurate.

As I begin planning for my maternity leave and work with my colleagues to make certain that my work is covered when I am out, having confirming the accuracy of this information is critical. Could you please confirm that all of the above is correct? Perspective: Yes, with the minor variances noted above.

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Your Qs re Pregnancy:

There is an employee who just indicated that she is pregnant and is planning to take a leave and bonding time for her new child. Perspective: Being disabled by pregnancy, an employee receives two protections. First, FMLA from the US Govt for max of 12 weeks, and second from the CA State, PDL, which can go for a max of 18 weeks. FMLA requires that the employee be FMLA-eligible (130 workdays, etc), yet PDL has no eligibility requirements whatsoever (other than being an employee disabled by pregnancy).

She has been out for nearly two years. We established at the time that she no longer had protections and planned to terminate her. Perspective: Makes sense, unless the employee is pregnant.

However, because of the timing of the situation (due to the BTS crisis) the District did not terminate her and she returned to work in March. Here attendance has been spotty. Perspective: Has the recent attendance problem been caused by pregnancy?

I know that she is FMLA protected for pregnancy and bonding. Perspective: Only if she is eligible for FMLA, with similar eligibility requirements for bonding. However, PDL is likely to arise as a viable protection for her continued employment. PDL does not provide for any bonding time, however.

Are there any exceptions to this based on number of days worked so far this year . . . Perspective: I don’t know if she is FMLA-eligible. This issue could be examined by counting workdays. As noted, the exception is PDL, even if not eligible for FMLA.

. . . or is she covered regardless of her attendance record? Perspective: Sounds like we need to look at her BTS records and then figure out which absences were covered (should have been covered) by FMLA.

********************************************************************** Your Qs re Forms for FMLA/PDL: I am filling out the "Certificated Request for Leave of Absence Form". Should I turn this into my school before I leave for the summer? Perspective: I would suggest that you hand in the request early, just to document that you have given notice in plenty of time.

Just to clarify, on this form, I check that I am requesting a leave of absence and when it asks to give dates?? Perspective: Give the dates as best you know them. You can always make alterations to the dates if events require changes. Do I wait till I have the baby to turn this in? Perspective: I'm not sure of the direction of this question - it seems that it's the opposite image of the first question - if yes, then the first question addresses this point.

The reason for the leave would be.... Pregnancy-Related Disability Leave Perspective: Yes

Or just the pregnancy leave? Perspective: This type of leave is typically unpaid because it is Not based on any doctorcertified disability. I understand I have to have my doctor fill out a note. Perspective: It's more than just a note - it's the FMLA Certification of Health Care Provider, or HR's Certification of Health Care Provider. Either one. They're basically the same. Do I have to get HR approvals? Perspective: Submit it to the Principal, and typically the SAA will forward the paperwork for you. If the SAA does not submit on your behalf, then just mail it to HR Placement and Assignments. For example....it says I need signatures from the Employee Health Services and Special Leaves Section Perspective: These requirements do not seem familiar to me ...HR division, Perspective: Yes, you need HR's approval.

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Your Qs re Pregnancy and Bonding :

If I use FMLA, does that mean I would need to start using my sick time right after the baby is born in July, which are non-contract days? Perspective: No, you wouldn't be required to use your sick time. As I understand it, your time off in July and the first two weeks of August is normally non-contract, off-track time off. You get paid, but only because this off-track time is paid through annualized pay. You actually couldn't use your sick time because you were not expected to be at work during this time.

If my work and sick days total more days than my contract days, do I get this time credited back to my sick time or am I paid more work days? Perspective: I'm not sure that I understand this question, but I believe that it may be not applicable based on the negative answer from the first question above.

My school pays for my time and I do not want them to be without services if I take FMLA. However if there is no other way to support my baby and my school, I will have to make that choice. Perspective: Again, I'm unsure if I have comprehended the totality of this question, Let me say that in August and possibly some of Sept, depending on when your doctor releases you, you will be disabled due to recovery from childbirth for this time. You will be required to use your illness time. This requirement is based on the LAUSD-union contract; it's not based on FMLA or CA PDL. FMLA and CA PDL are intended for protections; they do not provide any pay, and do not provide any extra pay for the employee.

**************************************************************** Your Qs re Pregnancy: Does an employee who was previously pregnant and now has recently miscarried still have protections? Perspective: As I understand it, the employee is absent due to recovery from her recent miscarriage. I presume that she has verified this recent absence with a health care provider. The absences are protected under CA PDL. She has already used all of her PDL for her previous pregnancy in 2007. However, this miscarriage is due to a new pregnancy, and CA PDL renews for its maximum of 18 weeks for each pregnancy, no matter how soon after the previous pregnancy. If there is no entitlement to FMLA, the absences are still protected in the same way that FMLA protects. The time code would be PDIL. If there is entitlement to FMLA, the absences are dual protected with both PDL and FMLA. Note that dual protection is no better for the employee than single protection, except that bonding could occur later for dual protection. Of course, with a miscarriage, bonding is not applicable. The time code for dual protection would be PFIL. (We'll see below that this PFIL code is Not applicable for the current situation.) Here's the FMLA explanation. FMLA absences in 2007 generated a new FMLA Year, and this FMLA year started on July 2, 2007. Therefore, a new FMLA Year cannot start until July 2, 2008, which means that a new set of 12 weeks are not available until next month, July 2, 08. As you know, all of the 12 weeks of FMLA in the current FMLA Year have been used. Thus, no more FMLA at the present time is available for this employee. Furthermore, on July 2, 08, the new set of 12 weeks is only available if the employee is FMLA eligible as of July 08. We quickly figured that this employee will not be FMLA eligible as of next month. Roughly counting her workdays in the last 12 months, she returned from her previous pregnancy in Feb 08, and went on this current pregnancy

disability in late May. That's 4 months of work, and assuming that she worked everyday, which she did not, and assuming that there 20 or so workdays each month, that's 80 workdays, 50 short of FMLA eligibility. Therefore, use PDIL, not PFIL.

********************************************************************** Your Qs re Completing Forms and Pregnancy

I am an Elementary School teacher with LAUSD. I work the traditional calendar year. I am now 35 weeks pregnant. Since this is my first child and my first time filling out LAUSD paperwork, I wanted to check with you on a couple of things to make sure I do things correctly. Although it may change, my delivery date is scheduled for July 11th. Perspective: Thus, your delivery and initial recovery will be during off-track time. I presume that your absences will start in late Aug or early Sept. If the baby comes on that day, when do I submit my paperwork and to whom? Is the correct form the leave of absence form? Perspective: You'll need to submit a leave form to your site for Principal's acknowledgement; an FMLA Certification of Health Care Provider FMLA - 3.2 or in its place, the Certification of Health Care Provider from HR Placement and Assignments; and an absence form to the site time reporter. It all goes to your site, with the first and second documents then going on to HR if your absence from early Sept goes into Oct, or otherwise more than 20 consecutive working days. Which box should I check? Perspective: Check the boxes that reflect that you are disabled by pregnancy, or boxes that have the same or equivalent words. Am I correct to say that the district allows 6 weeks of paid time from the day that the baby is born? Perspective: No, this statement is not always correct. The District gives you protected time off for which you are entitled and for which your health provider certifies you as disabled. If your doctor only gives you 5 weeks, then you get 5 weeks. Additionally, if you are delivering during off-track time, then your time to recover as certified by the doctor begins before you start work again, but you're not paid your illness time during this offtrack time. As a teacher, you'll get paid your annualized pay, but it won't be based on any illness pay. After the 6 weeks, I plan to take FMLA. Am I correct to say FMLA is 12 weeks with no pay (unless I use sick days), but I would still keep my insurance? Perspective: Yes, you are partially correct. But it's not actually FMLA, it's CFRA which is the State equivalent. CFRA provides for the 12 additional weeks of unpaid bonding. For bonding you cannot use your illness days. I believe I fill out the same form again, but check a different box. Is this correct? What box would I check? Perspective: Yes, use the same forms (leave form and absence form), different boxes. It would be bonding with new child. I plan to make it through this week and next. In the event that I am not able to, would I then go on pregnancy disability?

Perspective: Yes Does that mean that my 6 weeks would start from that disability date? Perspective: Yes, it would start, but you get whatever time your doctor certifies, as long as all of the time-off is legitimately disabling and you stay below the maximum cap of 18 weeks. If not, what would happen? Perspective: An early short leave ahead of delivery would not alter the facts and answers above. How many days prior to returning should I submit paperwork? Same form? Perspective: Well, there's no red-letter time frame for returning. The FMLA suggests as much time as reasonably available, but FMLA requires only two-day notice. Is there anything else I should know and/or am missing? Perspective: I've attached two Q&A Fact Sheets above. If they generate any more Qs, let me know.

********************************************************************************** Your Qs re Pregnancy Disability:

This is regarding the PDL person who is assigned 15 hours on a contract. Her original contract ends 6/20....she delivered her baby in May. We've been coding her PDIL since the birth of her baby and will be paying her paid absence time only thru 6/20, the end date of her spring contract with us. Perspective: You are pursuing the right direction. You should be using, as you are, one of the Pregnancy Disability codes, either PFIL or PDIL. The code PFIL represents “CA PDL + FMLA eligibility + paid illness”. The code PDIL represents “CA PDL with No FMLA eligibility + paid illness”. If this employee were eligible for FMLA with 1 year at the District and 130 workdays in the last 12 months, then the code should be PFIL.

She has informed us that she will NOT be returning until a couple of weeks AFTER the start of the new term as indicated on her FMLA/PDL papers. Perspective: It is not clear to me whether this extension is based on doctor's certification, or based on the employee's verbal word that she will still be disabled.

Her new contract for the new term is dated 9/2/08~6/20/09........do I resume her paid illness time again starting 9/2 until the time she physically returns to work? Perspective: It is not clear to me whether this extension is based on doctor's certification, or based on the employee's verbal word. If this extension is based on doctor's

certification, then yes, pay the illness. If this extension is based on the employee's word, and not based doctor's certification, then No, the employee's word is normally insufficient to pay her under these circumstances. However, you must notify the employee that you are providing her with the opportunity to provide medical certification of continuation of the disability. If she provides, pay her illness time with the pregnancy time code, either PFIL or PDIL.

******************************************************************* Your Qs re Management and Pregnancy Disability:

What are the rights for a pregnant employee whose performance before taking leave was unsatisfactory? The CA PDL Regulations provide for an exception to guaranteed reinstatement to the employee's original position, as noted in subsection (c)(1)(A) below. An employee has no greater right to reinstatement to the same position or to other benefits and conditions of employment than if the employee had been continuously employed in this position during the pregnancy disability leave or transfer period. A refusal to reinstate the employee to her same position or duties is justified if the employer proves, by a preponderance of the evidence, either of the following: (A) That the employee would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking a pregnancy disability leave or transfer (such as a layoff pursuant to a plant closure).

A more complete text of the regulation is below. § 7291.9. Right to Reinstatement from Pregnancy Disability Leave.

The following rules apply to reinstatement from any leave or transfer taken for disability because of pregnancy. (a) Guarantee of Reinstatement Upon granting the pregnancy disability leave or transfer, the employer shall guarantee to reinstate the employee to the same position, or, if excused by section 7291.9, subdivisions (c)(1)(A) or (c)(1)(B), to a comparable position, and shall provide the guarantee in writing upon request of the employee. It is an unlawful employment practice for any employer, after granting a requested pregnancy disability leave or transfer, to refuse to honor its guarantee of reinstatement unless the refusal is justified by the defenses below in subdivision (c)(1) and (c)(2). (b) Refusal to Reinstate (1) Definite Date of Reinstatement

Where a definite date of reinstatement has been agreed upon at the beginning of the leave or transfer, a refusal to reinstate is established if the Department or employee proves, by a preponderance of the evidence, that the leave or transfer was granted by the employer and that the employer failed to reinstate the employee by the date agreed upon to the same position or, where applicable to a

comparable position, as specified below in subdivisions (c)(1) and (c)(2).

(2) Change in Date of Reinstatement

If the reinstatement date differs from the employer's and the employee's original agreement, a refusal to reinstate is established if the Department or employee proves, by a preponderance of the evidence, that the employer failed to reinstate the employee within two business days, where feasible, after the employee notifies the employer of her readiness to return, to the same, or, where applicable, to a comparable position, as specified below in subdivisions (c)(1) and (c)(2).

(c) Permissible Defenses (1) Right to Reinstatement to the Same Position

An employee has no greater right to reinstatement to the same position or to other benefits and conditions of employment than if the employee had been continuously employed in this position during the pregnancy disability leave or transfer period. A refusal to reinstate the employee to her same position or duties is justified if the employer proves, by a preponderance of the evidence, either of the following:

(A) That the employee would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking a pregnancy disability leave or transfer (such as a layoff pursuant to a plant closure).

(B) That each means of preserving the job or duties for the employee (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the employer's ability to operate the business safely and efficiently.

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Is there any differentiation between time off before the birth of one's baby and being "disabled" due to some pregnancy related reason? Perspective: Normally no, there is no difference in time reporting nor in use of paid illness. The key is whether the doctor/health care provider has certified disability. Thus, let me rephrase your question: Is there any differentiation between time off for disability before the birth of one's baby and being "disabled" due to some pregnancy related reason? Perspective: No, there is no difference in time reporting nor in use of paid illness. The key here is that the doctor/health care provider has certified disability. One of our teachers has finally submitted her PDL forms and is expecting to be paid for the time off before her caesarean.

Perspective: If she is disabled, as certified by the health provthen pay is appropriate. Disability is the watchword here. If she is Not disabled before her pregnancy delivery, then this fact would eliminate her from illness pay.

She has a caesarean scheduled for next week. I thought the time off waiting for the birth of one’s baby is considered leave time and not illness, and that paid illness time does not start until the actual birth of the baby......is that incorrect? Perspective: It is "incorrect". Paid illness can be used before delivery when the doctor certifies disability.

or does the illness paid time start from the first date of her PDL? Perspective: Yes, PDL would typically start sooner than the date of delivery - it would be the first date of incapacity plus 7 days later, as certified by the doctor.

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