Ask Annie: Maternity Leave Protection Worked for Less than One Year

by Annie on May 5, 2012 · 0 comments

in Ask Annie, Maternity Leave

I started working for this company in early September 2011. I’m due in mid July and wasn’t sure if I qualified for any leave. I will have been at this company for 10 months if I wait until my baby is born. I checked and I definitely pay SDI tax. Do I still qualify for leave? This is my first baby. Any advice is greatly appreciated. Thank you!

There are two components to maternity leave in California: job protection and income replacement. These two components of maternity leave are completely separate. Luckily in California, we have additional state maternity leave laws to give us additional time off and, most important of all, some income replacement with SDI and PFL.

Job protection during maternity leave

Under FMLA/CFRA your employer have to give you an equivalent job with the same pay when you come back from up to 6 months of maternity leave.

Unfortunately, FMLA (federal law) and CFRA (state law) only protect your job if you worked for a large company for the last 12 months. In your situation, when you go out on maternity leave after 10 months of employment, your job will not be automatically protected for an extended maternity leave.

However, under the federal Pregnancy Discrimination Act of 1978, if you worked for a company with at least 15 employees, your pregnancy require your employer to treat you like any employee with a disability. Your job protection depends on your company’s disability policy.

For example, if someone has a heart attack or need surgery, how does your company handle their absence? You need to talk to HR about their disability policy. How your company handle disability is what you can expect in terms of job protection during your maternity leave since you are not covered under FMLA/CFRA.

I have a co-worker out on disability for the last two months. He will most likely be reinstate into his job when he recovers.

What this means for your maternity leave is that you will probably need to be back at work 6 weeks after giving birth for a normal delivery (8 weeks if you have a C-section). Typically, you are no longer considered disable by the medical community beyond 6 or 8 weeks unless you have complications like an infection. If you chose to extend your maternity leave beyond your recovery period, you have no job protection.

So in terms of job protection, you can only take the typical 2 weeks before birth off and 6 or 8 weeks after birth off for maternity leave and still be protected under the Pregnancy Discrimination Act.

Income replacement during maternity leave

It’s a good thing you pay into the California State Disability Insurance (SDI) because this means you could expect a small check from the state since I doubt you would have accumulated much personal leave with only 10 months of employment with your current job.

However, your maternity leave payment from SDI would not be as “generous” as someone who has worked for the last 12 months. Your SDI payments are typically 55% of your paycheck for the last 4 quarters.

In your situation, you got pay for 3 quarters (9 months) and only 1 month of pay on the 4th quarter (total 10 months of working). If you do the math, this means your SDI payments while you are on maternity leave would be around 40% – 50% of your pay.

SDI is designed to help you out while you are recovering, but not so generous that you would not want to return to work. If you are planning to only take 2 weeks off before birth, then I would budget for 40% of your paycheck for 7 weeks:

Before birth

1st week off (100% from personal leave because of 7 day waiting period for SDI)

2nd week off (40% from SDI and personal leave if you have any)

After birth

6 weeks off (40% from SDI and personal leave if you have any)

or it could be 8 weeks if you have C-Section.

Please note that if you do not have the 2 weeks off before birth, you cannot add it to the after birth portion to extend your maternity leave. It is use or lose.

But what about Paid Family Leave?

Since you are not cover by FMLA/CFRA, it is not a good idea to extend your maternity leave beyond your recovery period. At only 10 months of employment, you actually do not qualify for Paid Family Leave immediately.

You are still eligible to receive Paid Family Leave to bond with your new baby anytime after working 12 months within the first 12 months of your baby’s life. Don’t forget, your husband could also take PFL if he pays into SDI (I will be posting about paternity leave sometimes next week). You should be eligible for Paid Family Leave by Christmas. Can you imagine how nice it would be to only work part time for 5 weeks starting Thanksgiving until well after the New Year?

Remember Paid Family Leave is also use or lose. You can get more details about Paid Family Leave in these two posts I’ve written previous:

Paid Family Leave payments after returning to work

Taking PFL with less than 12 months employment

You might also find my timeline on applying for maternity leave helpful.

Good luck and congrats about being a new mom! Your world is going to change forever!

To find out about how to make the most of your maternity leave and enjoy the time with your baby, you need to watch this. I watched this video in my birthing class and it made a huge difference on how to get our baby adjusted to being outside the womb and to stop crying. His method really works!

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