Pregnancy: a wonderful time of changes and a time to enjoy the mystery of a new human being coming into the world. The one change you don’t want is employer discrimination or denial of statutory pregnancy leave rights. This is unacceptable and in most cases unlawful.

California has some of the most liberal pregnancy accommodation laws in the country, and these laws overlap or co-extend with other leave laws. The challenge may be to track these parallel laws to ensure you have the maximum protection.

Pregnancy Leave Rights and Accommodations Laws:

a. Family Temporary Disability Insurance [FTDI] provided through the CA EDD as a form of “disability insurance” you’ve paid to receive a deduction from payroll to allow you time to care for a disabled family member or newborn; [No leave protection provided]
b. State Disability Leave for your own disability [EDD] [no leave protection provided]
c. California Family Rights Act [CFRA] which covers you or your family for disability of any kind, and is unpaid leave [although you may use your PTO or Vacation Time, if the employer allows/requires]; [12 work weeks of protection provided] [You must have worked for at least one year for the employer, with 1250 work hours accumulated, and the employer must have 50 employees minimum within 75 miles of your workplace.]
d. Pregnancy Disability Leave and Pregnancy Accommodation [PDL], also unpaid leave. [16 weeks of work protection provided]. [CA requires only 5 or more employees to be employed by your employer – no minimum period of accrued hours.]
e. Any private employer-employee disability payments under a short term or long term disability insurance policy. [This is a contractual right and usually covers a major percentage of your usual salary payment for a period of months or even years.] [generally, no work protection provided, unless by contract].
f. The general disability accommodation laws that require an employer to provide time off that may equal or exceed any of the times provided by the medical leave laws or private disability plans. This requirement applies especially to larger employers having the funds, personnel, and logistical support to provide longer accommodations. [work protection provided on a case-by-case basis];
g. If your employer allows leave for other non-pregnancy conditions that exceed the 17 1/3 weeks required by the PDL, the extended time must also be accorded to the pregnant worker on pregnancy leave.

California accords employee disabled because of pregnancy some extra protections not available under the federal “Family Medical Leave Act” or “FMLA.” First, California matches in coverage the FMLA with the “California Family Rights Act,” or “CFRA.” But the good news for the pregnant California employee is that she receives double protection: Unlike federal protections, the California PDL and CFRA run consecutively not concurrently. That means 4 months [17 1/3 weeks or 693 hours of leave for a 40 hour per week employee] of pregnancy related disability leave followed by up to an additional 12 work-weeks of CFRA leave for the care of (and bonding with) the newborn infant. [Be sure to have your physician write a short report for your employer that protects your privacy, but also makes clear the need for leave to a date within the protections of the Pregnancy Leave Act and the CFRA.]

A high risk pregnancy requiring time off from work is not only basis for a “pregnancy related disability” triggering the PDL Act, but is also a generally qualifying “disability” under the disability discrimination and accommodation laws of the Fair Employment and Housing Act [FEHA] Government Code Section 12940, et seq. [See e.g., 29 CFR Sec. 825.115(b), 825.120(a)] This is a significant point because the employer may have a duty to accommodate a pregnancy related disability beyond the “4 months” of the PDL Act. Being unable to work during pregnancy is a disability for the purposes of section 12940. (See § 12926, subd. (l) [defining “`[p]hysical disability'” as including any physiological condition that impairs a major life activity, such as working].) See Sanchez v. Swissport, Inc. (2003) 213 Cal.App.4th 1331.

Sometimes the question arises: What about the gap between the PDL (16 weeks) and the birth of the child if the PDL of 16 weeks is exhausted before the birth? Does the CFRA kick in during that gap to protect the pregnant mother beyond 16 weeks? Government Code Section 12945.2(c) of the CFRA specifically excludes pregnancy leave from CFRA coverage. However, the pregnancy accommodation laws stated by Government Code Section 12945 state two layers of leave rights for pregnant women: a) the standard 16 weeks, and b) leave accommodation that may, in the particular circumstances, exceed 16 weeks. This statutory right is consistent with the 2003 decision in Sanchez v. Swissport, cited above.

Pregnant employees should challenge an employers refusal to accommodate their pregnancy because a requested accommodation is not “reasonable” or because it causes an “undue hardship” where the work required is light duty, and can be conducted from a sitting or even reclined position (such as bed) with the use of a laptop and access to the Company’s intranet or cloud-based data. Employers would sometimes like to simply have the pregnant employee go out on immediate leave without accommodation, thereby causing the employee to exhaust the available 16 weeks of PDL. This tactic may be illegal if the pregnant employee can work in a modified work capacity, or with reduced hours, or work from home. This approach is especially available if other non-pregnant employees in like positions are allowed to work from home or part time, or with a modified work schedule.

And a final note for dads: with the birth of the child, a father is also entitled to FMLA/CFRA time off to bond with and care for the newborn. The father may also take FMLA/CFRA leave to care for his wife following her delivery. It is not necessary that the newborn have a serious health condition. Bonding is sufficient reason for FMLA/CFRA use. 29 CFR Sec. 825.120(a)(2). See also CA Govt. C. Sec. 12945.2.

Finally, here is the primary protection of the State and Federal Pregnancy Leave laws: they guarantee that the employee is to be returned to the same position on the exactly the same terms and conditions as were enjoyed at the time the leave was first taken. See e.g., Govt. C. Sec. 129945(c)(4).

FXP © 2015.

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