New PDL Regulation

The Current CFRA Statute
“During any period that an eligible employee
takes leave pursuant to [CFRA] or takes leave
that qualifies as leave taken under the FMLA,
the employer shall maintain and pay for
coverage under a “group health plan,”. . . for the
duration of the leave, not to exceed 12
workweeks in a 12-month period, commencing
on the date leave taken under the FMLA
commences. . . .” Gov. Code, § 12945.2(f)(1).
The New PDL Regulation
“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
Gov. Code,
§ 12945.2(f)(1).designates
be true even where
an employer
pregnancy disability leave as family and medical
leave under FMLA. The entitlements to employerpaid group health coverage during pregnancy
disability leave and during CFRA are two separate
and distinct entitlements.”
Cal. Code Regs. tit. 2, § 7291.11(c)(2).
• Emily is put on bed rest 4 weeks prior to birth.
She then has the baby and is on disability
from the birth for 4 more weeks. She then
wants to take the full 12 weeks of CFRA
bonding leave.
She gets 4 months worth for pregnancy
disabilities, and is using 8 weeks of that. PDL
law says we have to maintain her health
insurance during that time
She gets 12 weeks worth for either the
pregnancy disability or the bonding time. She
uses 8 weeks for the disability and the
remaining 4 during her bonding leave. We must
pay for her insurance during all 12 weeks.
• We know she gets 12 weeks of leave, but how
much of that time will she get her insurance
paid for?
• Let’s look at the new regulation and the new
• We pay for Emily’s insurance during either FMLA
leave, or CFRA for a total of 12 weeks.
• Those 12 weeks commence once she starts taking
her FMLA leave.
• Under the CFRA statute, she has exhausted her
12 weeks after she is 4 weeks into her bonding
leave. At that point, pursuant to CFRA statute,
we are no longer required to maintain medical
• We cannot apply any of the time she was on
PDL/FMLA leave towards the 12 weeks we
must maintain medical insurance under the
bonding leave.
• Therefore, she would get her insurance
maintained during all 12 weeks of the bonding
PDL Regulation vs. CFRA Statute
• You cannot apply the new PDL regulation
without expanding the amount of time we
must maintain medical insurance under the
CFRA statute
Statute vs. Regulation
• What is a statute?
• What is a regulation?
Statute vs. Regulation
• “No regulation adopted is valid or effective
unless consistent and not in conflict with the
statute and reasonably necessary to
effectuate the purpose of the statute.” Cal.
Gov. Code § 11342.2
Should we follow the new Regulation?
• It is a strategic decision that takes into account
several factors.
• We think ignoring the new regulation is a
legally defensible position to take.
• Other law firms have recognized this same

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