California Expanding Pregnant Women’s Rights in the Workplace

California Expanding Pregnant Women’s Rights in the Workplace

California Pregnancy Leave Laws and Regulations:

Expanding the Rights of Pregnant Women in the Workplace

Pregnancy is an exciting, joyful time for any woman. However, for pregnant women in the workforce, pregnancy leave rights can be confusing, complex, and at times, incredibly stressful. Fortunately, California provides significant protection for pregnant employees. There are various state and federal laws protecting pregnant women, including the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA) and California’s Fair Employment and Housing Act (FEHA). The various laws provide protections that seem to overlap and cause many employers and pregnant women to question which law applies and what pregnancy discrimination protections are offered.

California’s Pregnancy Disability Leave Law (PDLL) is one of the statutes that protect pregnant employees. The PDLL, which is part of the FEHA, provides eligible female employees four months of Pregnancy Disability Leave (PDL). This type of job-protected leave does not have to be taken all at once and can be taken over a 12-month period. PDL runs concurrently with FMLA leave, but not with CFRA leave, which can be taken after PDLL time has been used.

Your Rights Under the PDLL and FEHA

Under the PDLL, an employer must allow up to four months’ time off for an employee with a pregnancy-related disability, regardless of any hardship to the employer. The express language of the PDLL states that it must not be interpreted as affecting any other legislation regarding sex discrimination or to be construed as diminishing the coverage offered by any other regulation.

Under FEHA, discrimination based on pregnancy or a pregnancy-related medical condition is a form of sex discrimination. Under its provisions, an employer must provide reasonable accommodations for a disabled employee so long as such accommodations do not cause undue hardship to the employer. Further, additional time off is a form of reasonable accommodation as long as it is foreseeable that at the end of the extended leave the employee will be able to return to performing her duties.

On December 30, 2012, the Fair Employment and Housing Commission (FEHC) passed Section 7291.14 of California’s Code of Regulations which states that the entitlement of up to four months of leave under the PDLL is “separate and distinct” from the provisions of FEHA allowing for reasonable accommodations for a disability. Furthermore, stating that once the four months allowed under PDLL have expired, one may still be eligible for reasonable accommodation under the FEHA for one’s disability, which may or may not is due to pregnancy. In short, entitlement to reasonable accommodations under FEHA is not diminished by the employee’s exercise of her right to pregnancy leave under PDLL.

Recently, the California Court of Appeals clarified that the provisions of the PDLL are in addition to those of the FEHA, and do not replace it; therefore, even after exhausting the four-month leave allowed under PDLL, an employee who remains disabled may be granted additional time off.

While an employee is out on pregnancy disability leave, state law requires her employer to continue and maintain group health plan coverage. This means the employer must pay the same amount of premiums that were paid while the employee was working. The employer’s responsibility ends if/when the employee provides notice that she will not be returning to her job.

Upon returning to work, a protected employee is entitled to her job or reinstatement to a similar position if the original position is no longer available due to business necessity.

Who is Eligible PDLL Protection?

In order for pregnant women in California to be eligible for PDLL protections, certain requirements must be met:

– The employer must have more than five employees.

– The pregnant employee must be considered a qualified employee. Unlike other statutory safeguards for pregnant women, there is no length of service requirement for PDLL protections. The pregnant employee can either be full-time or part-time work in order to be eligible for protection.

– The pregnant employee must be considered disabled by her pregnancy. In order to be deemed disabled, a pregnant female must be able to provide proof to her employer from her health care provider that due to the condition of her pregnancy she is not able to work, perform one or more of her necessary job functions or perform job functions without putting her health or the health of her unborn child at risk. Significantly, conditions like morning sickness and time away from work for prenatal health care are considered eligible for protection under PDLL.

The Pregnant Employee’s Responsibilities under PDLL

The PDLL sets out several conditions that the employee must comply with in order to maintain eligibility under PDLL.

Notice Requirement. An employee applying for pregnancy leave under California’s PDLL must provide her employer 30 days’ notice of the need for pregnancy leave or a position transfer due to a pregnancy-related condition, if the leave is foreseeable. An employer has 10 calendar days to respond to an employee’s leave or transfer notice. Medical emergencies do not require 30 days’ notice and employees cannot be denied leave due to an unforeseen absence.

Certification of Need for Leave. Additionally, employers may require an employee to provide certification of the need for leave, including:

– Date of the disability, or future date of pregnancy-related disability

– Duration of required time away from work

– Explanation of why the employee is unable to perform her job function(s)

It is important to remember, that although employers can request medical documentation from the employee’s health care provider, the employer cannot require employees to provide them with additional medical opinions.

Examples of Employer Pregnancy Disability Leave Violations

Although the PDLL provides pregnant employees with significant legal protections, it is common that employers will violate these comprehensive statutory provisions. Some common ways that employers violate PDLL include:

– Terminating an employee while on pregnancy disability leave

– Forcing an employee to use accrued vacation time instead of PDL

– Failing to accommodate an employee disabled by pregnancy-related conditions

– Creating a business necessity to replace an employee’s position

– Offering an employee a similar position at less pay

If an employee suffers any employer tactics in violation of California’s PDLL, including being terminated or unfairly discriminated against due to her pregnancy, she may have legal recourse against her employee. It is important to seek the help of legal counsel and obtain a consultation regarding her rights and remedies. The employee may be entitled to monetary damages, job reinstatement and other legal remedies, depending on the specific circumstances of the case.

Our firm will offer you a free consultation to help you determine whether your rights have in fact been violated and obtain the appropriate legal remedies.

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