How Leave Laws Interact When a Couple Works for Same Employer

How do the federal COVID-19 leave laws adopted this year interact with related state laws, including pregnancy leave, the family rights act and baby bonding time for a married couple at our business?

Due to COVID-19, Congress enacted the federal Families First Coronavirus Response Act (FFCRA) that created a new paid sick leave and an Emergency Family and Medical Leave Act (E-FMLA). Due to this, leave interactions have become more complicated. Let’s dive into a recent question the CalChamber Labor Law Helpline received to review leave interactions.

“We employ a married couple who are expecting a baby. The pregnant employee gave us a doctor’s note taking them off work for eight weeks due to the pregnancy. The nonpregnant employee is currently taking E-FMLA for 12 weeks because they lost child care due to COVID-19 for their other child. Both employees are eligible for leave under federal and state law. What are their leave rights going forward for the baby?”

Pregnancy Disability Leave

In California, employers with five or more employees must provide employees disabled by pregnancy with pregnancy disability leave (PDL).

Employees are eligible for up to four months of job-protected PDL. Because a doctor certified the pregnant employee as disabled for eight weeks, the employee may use PDL during that time.


Under the federal Family and Medical Leave Act (FMLA), employers with 50 or more employees must provide 12 weeks of job-protected leave to employees with serious medical conditions who meet the following criteria:

  • 12 months of service with the employer;
  • 1,250 hours worked in the previous 12 months; and
  • Work at a location with 50 or more employees within a 75-mile radius.

While the pregnant employee is out on PDL, the disability qualifies as a serious medical condition under the FMLA so their FMLA allotment runs at the same time as PDL. So, this pregnant employee will also be using eight weeks of the FMLA at the same time as her PDL use.

California also has a separate family and medical leave called the California Family Rights Act (CFRA). The eligibility requirements for the CFRA are the same as the FMLA.

However, an employee is not eligible for the CFRA if they are disabled by pregnancy. Therefore, the pregnant employee on PDL will not be using any of their CFRA leave.

Families First Act

As discussed above, the FFCRA created an E-FMLA leave entitlement. Employers with fewer than 500 employees nationally must provide up to 12 weeks of job-protected leave for an employee who cannot work or telework due to a school or child-care closure due to COVID-19 under the E-FMLA.

Time used under E-FMLA counts against an employee’s regular FMLA 12-week allotment as well, so the nonpregnant employee using 12 weeks of E-FMLA has also exhausted any other leave available under the FMLA; however, time spent on E-FMLA does not run concurrently with the CFRA.

Baby Bonding

Both the FMLA and CFRA provide eligible employees with 12 weeks of job-protected leave to bond with a baby within one year of the birth. Because the various leaves our expecting employees have taken thus far do not run concurrently with the CFRA, the parents will still be eligible for 12 weeks of baby bonding leave.

Because the employees both work for the same employer, the CFRA allows an employer to require the employees share the 12 weeks; so, if one parent takes all 12 weeks, the other parent is not entitled to any leave.

Matthew J. Roberts, Employment Law Counsel/Subject Matter Expert

Read more about COVID-19: New Federal PSL and Expanded FMLA in the HR Library. Like what you see? See how CalChamber can help you.

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