One of my employees is a gestational surrogate. What leave laws would apply to her?
A gestational surrogate is someone who carries a pregnancy and gives birth to a child for another person or couple, also known as the “intended parents.” Regardless of the reason for the pregnancy, your employee may have rights to leave under both federal and California law, as well as other protections.
5 or More Employees
If you have five or more employees, your pregnant employee would be covered by California’s pregnancy disability leave (PDL) law. PDL allows an employee to take up to four months, or 17 1/3 weeks, of protected leave when the employee is disabled by pregnancy. The employee’s health care provider determines how long the employee is disabled and needs leave, which can be both before and after the birth of the baby.
The fact that the employee is pregnant as a surrogate doesn’t have an impact on her right to leave—the reason for her pregnancy is irrelevant. (In addition to leave, PDL requires employers to provide reasonable accommodations to employees because of pregnancy, if needed.)
50 or More Employees
If you have 50 or more employees, your employee may also be eligible for up to 12 weeks of leave under the federal Family and Medical Leave Act (FMLA).
The FMLA treats pregnancy as a serious health condition, so if your employee meets the FMLA eligibility requirements (has worked for you for at least 12 months, has worked at least 1,250 hours in the 12 months before taking leave, and works at a worksite with 50 or more employees in a 75-mile radius), her leave will be PDL and FMLA running concurrently.
Again, the reason for the employee’s pregnancy is irrelevant to her right to time off—what matters is that she is disabled by her pregnancy.
Post-Childbirth
Once your employee has recovered from childbirth and her doctor returns her to work, her leave rights would likely end. Various leave laws do give eligible employees the right to take protected leave to bond with a new baby:
• the FMLA and the California Family Rights Act (CFRA)—which apply to employers with 50 or more employees; and
• California’s New Parent Leave Act (NPLA)—which applies to employers with 20 to 49 employees.
If the surrogate surrenders the baby to the intended parents, which is how surrogacy is designed to work, your employee wouldn’t have a baby with whom to bond and thus wouldn’t have a legal right to baby-bonding leave. (The intended parents, however, may be eligible for baby bonding leave from their employment.)
Lactation Accommodation
Once your employee is released to return to work, you may need to provide her with a lactation accommodation. Both federal and California law require employers to provide reasonable accommodations to employees who want to express (pump) breastmilk at work. You must provide your employee with a reasonable amount of break time to express breast milk, and the use of a private place to express milk, other than a toilet stall, in close proximity to the employee’s work area.
You can require that the employee use her paid rest breaks, but if she needs additional time beyond the normal rest breaks to express milk, you must provide it, although it can be unpaid. She also can use her meal break to express milk. (San Francisco employers have additional requirements under that city’s Lactation in the Workplace ordinance.)
Lastly, don’t forget that pregnancy, childbirth, breastfeeding and related medical conditions are protected characteristics under federal and California law. It is unlawful to discriminate against an employee because of pregnancy or to retaliate against an employee who took PDL/FMLA leave because of pregnancy. These protections will extend to all your pregnant employees, including those who are surrogates.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
