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Pregnancy Laws California

November 18, 2022

California's pregnancy disability leave law protects employees against discrimination or harassment because of an employee’s pregnancy, childbirth, or any related medical condition. Employees also have federal rights to leave for a pregnancy-related disability or to bond with a child, which are provided for by the Family and Medical Leave Act (FMLA). FMLA is a federal law that gives eligible employees 12 weeks of unpaid, job-protected leave in a 12-month period to bond with a new child, to care for an ill family member, or to participate in a qualifying military event.

The employee benefits from the more protective law when both state and federal laws apply. California law also prohibits employers from denying or interfering with an employee’s pregnancy-related employment rights. Employers subject to the California Family Rights Act (CFRA) have an obligation to:

  1. Reasonably accommodate your medical needs related to pregnancy, childbirth, or related conditions (such as temporarily modifying your work duties, providing you with a stool or chair, or allowing more frequent breaks);
  2. Transfer you to a less strenuous or hazardous position (where one is available) or duties if medically needed because of your pregnancy;
  3. Provide you with Pregnancy Disability Leave (PDL) of up to four months (the working days you typically would work in one-third of a year or 17 1/3 weeks) and return you to your exact job when you are no longer disabled by your pregnancy or, in certain instances, to a comparable job. Taking PDL, however, does not protect you from non-leave-related employment actions, such as a layoff.
  4. Provide a reasonable break time and use of a room or other location close to the employee’s work area to express breast milk in private as outlined in the Labor Code.

California provides some of the strongest protections for pregnant workers in the country, which fall into five general categories: reasonable accommodation, pregnancy disability leave, bonding leave, reinstatement, and lactation accommodation.

Reasonable Accommodation

The California Fair Employment and Housing Act (FEHA) explicitly requires qualifying employers to provide reasonable accommodations for pregnant women who are unable to perform specific tasks or job duties due to pregnancy or a pregnancy-related medical condition (including, for example, severe morning sickness, post-partum depression, gestational diabetes, pregnancy-induced hypertension, preeclampsia, childbirth, recovery from childbirth, or the loss or end of a pregnancy). FEHA does not only apply to female employees; all pregnant employees are entitled to protection.

Suppose you have medical conditions related to pregnancy. In that case, your boss cannot refuse to give you small changes to stay healthy, like breaks to take medication, temporary relief from heavy lifting, or a stool to sit on during your shift. These changes are called “reasonable accommodations” and are available as long as you can still complete basic job duties with those changes and do not present an undue hardship. Your boss does not have to give you accommodation that would be very difficult or expensive (for a legitimate business reason), like building a whole new office.

Lactation Accommodation

Finally, once a pregnant employee who has given birth returns to work, she is entitled to lactation accommodation. California employers must provide pregnant workers who wish to express breast milk for nursing infants with a reasonable opportunity to take breaks to do so, as well as access to a private location (other than a public restroom) near the employee’s regular work area.

Family, Medical, and Pregnancy Disability Leave Law

Pregnancy discrimination is against the law. The EEOC enforces two federal laws protecting job applicants and pregnant employees.

The first law is Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which is called “Title VII.” It prohibits sex discrimination, including pregnancy discrimination.

The second law is the Americans with Disabilities Act, which is called the ADA. The ADA prohibits discrimination against an applicant or employee based on a disability, including disability related to pregnancy, such as diabetes, that develops during pregnancy. While pregnancy itself is not a disability under the ADA, some pregnant workers may have one or more impairments related to their pregnancy that qualify as a “disability” under the ADA. An employer may have to provide that worker with a reasonable accommodation for the pregnancy-connected disability.

The California Family Rights Act (CFRA) provides eligible employees with up to 12 weeks of unpaid but job-protected leave to care for their serious health condition, a family member with a related condition, or to bond with a new child. Recent legislation, effective January 1, 2021, expands CFRA in several significant respects. 

In addition, California law requires covered employers to provide employees disabled by pregnancy, childbirth, or a related medical condition with unpaid, job-protected leave (PDL) or accommodations. Learn more about these rights in the resources below.

Pregnancy Disability Leave (PDL)

PDL is not for an automatic period but for the time you are disabled by pregnancy. Your healthcare provider determines how much time you will need.

Once your employer has been informed that you need to take PDL, your employer must guarantee in writing that you can return to work in your exact position if you request a written guarantee. Your employer may require you to submit written medical certification from your healthcare provider substantiating the need for your leave.

PDL may include but is not limited to, additional or more frequent breaks, time for prenatal or postnatal care, doctor's appointments, doctor-ordered bed rest, severe morning sickness, gestational diabetes, pregnancy-induced hypertension, preeclampsia, recovery from childbirth or loss or end of pregnancy, and/or postpartum depression.

PDL does not need to be taken all at once. It can be taken on an as-needed basis as required by your health care provider. This includes intermittent leave or a reduced work schedule, which counts against your up to four months of leave.

Your leave will be paid or unpaid, depending on your employer’s policy for other medical leaves. You may also be eligible for state disability insurance or Paid Family Leave (PFL), administered by the California Employment Development Department.

At your discretion, you can use any vacation or other paid time off during your PDL.

Your employer must continue your group health coverage during your PDL at the same level and under the same conditions that would have been provided if you had continued in employment continuously for the duration of your leave. You may still have to pay your employer your portion of any insurance premiums.

Taking PDL may impact certain of your benefits and seniority date; please get in touch with your employer for details.

If possible, you must provide at least 30 days' advance notice for foreseeable events (such as the expected birth of a child or a planned medical treatment for yourself). Please notify your employer verbally for unforeseeable events as soon as you learn of the need for the leave. Failure to comply with these notice rules is grounds for, and may result in, deferral of the requested leave until you comply with your employer's policy.

Notice Obligations for Pregnant Employees

Give your employer reasonable notice. To receive a reasonable accommodation, obtain a transfer, or take PDL, you must give your employer sufficient notice for your employer to make appropriate plans. Sufficient notice means at least 30 days advance notice if the need for reasonable accommodation, transfer, or PDL is foreseeable. Otherwise, as soon as practicable if the need is an emergency or unforeseeable.

Be prepared to provide a written medical certification from your healthcare provider. Except in a medical emergency where there is no time to obtain it, your employer may require you to supply a written medical certification from your healthcare provider of the medical need for your reasonable accommodation, transfer, or PDL. 

Suppose the need is an emergency or unforeseeable. In that case, you must provide this certification within the time frame your employer requests unless it is impossible to do so under the circumstances despite your diligent, reasonable faith efforts. Your employer must provide at least 15 calendar days for you to submit the certification. See your employer for a copy of a medical certification form to give to your healthcare provider to complete.

Please note that if you fail to give your employer reasonable advance notice or, if your employer requires it, written medical certification of your medical need, your employer may be justified in delaying your reasonable accommodation, transfer, or PDL.

California Family Rights Act Leave

You also may be entitled to additional rights under the California Family Rights Act of 1993 (CFRA) if you have more than 12 months of service with your employer and have worked at least 1,250 hours in the 12-month period before the date you want to begin your leave. This leave may be up to 12 workweeks in 12 months for the birth, adoption, or foster care placement of your child or for your significant health-related condition (not related to pregnancy) or that of your child, parent, or spouse. 

While the law provides only unpaid leave, employees may choose, or employers may require using accrued paid leave while taking CFRA leave under certain circumstances. Leaves taken under CFRA are job-protected, and you are entitled to return to your job or a similar position.

How long is maternity leave under California law for pregnant employees?

Family leave (also called baby bonding leave) is time away from work for employees to bond with a new child. Under the CFRA, male, female, trans, and nonbinary workers in California may take up to 12 weeks of unpaid family leave a year if:

  1. The employer employs at least 5 people, and
  2. The employee has worked for the employer for more than 12 months prior to the family leave date, and
  3. The employee worked at least 1,250 hours for the employer in the last 12-month period, and
  4. The employee has a new child by birth, adoption, or foster care placement.

Employees who give birth may take these family leave benefits following PDL. This way, they get up to seven months off for each pregnancy.⁠ 

Family leave can be taken in increments throughout one year. But employers can require that only two of these increments last less than two weeks. Once family leave ends, employees must get their exact – or similar – job back. Employers must also allow them to catch up on any training.

What is reasonable accommodations leave?

Reasonable accommodations leave is time off for impaired workers to receive treatment and recover. Pregnant employees or new parents may be eligible for this time off if:

  1. California’s anti-discrimination laws cover the employer; and
  2. The employee cannot perform essential job functions due to a physical or mental disability, and
  3. The employee can perform essential job functions if given leave; and
  4. The leave will not cause the employer undue hardship.

Eligible employees can take reasonable accommodations leave in addition to PDL and family leave. This time off may be paid or unpaid, depending on the company. Courts have held that these leave benefits should be a last resort under state law.

Is maternity leave paid in California?

Employers do not have to give paid maternity leave. They just have to leave their workers’ jobs open for when they return. But there are ways for employees to continue receiving money.

  • Accrued Paid Time Off. Employees may use their vacation or sick days towards maternity leave. Employers may even require workers to use their accrued paid leave.
  • Health insurance. Companies must keep workers on PDL or family leave on their group health insurance at the same contribution rates.
  • Paid Family Leave Act (PFL). Eligible California employees can get partial pay for six weeks during a one-year period to bond with a child. The maximum weekly salary is $1,300.
  • State Disability Insurance (SDI). California Employees eligible for SDI must have paid $300 or more into the program for five to 18 months before the claim’s start date. And the employee must have a pregnancy- or birth-related short-term disability. Currently, SDI pays out $194.91 to $1,299.43 per week.

Some companies do provide paid maternity leave as a matter of policy. Employees are advised to consult with their human resources department to discuss all of their options and what they are entitled to.

Pregnancy Discrimination Act (PDA)

Employees who have faced discrimination for pregnancy are legally entitled to sue their employers under the PDA or FEHA, which prohibits discrimination based on pregnancy, childbirth, or related medical conditions. The pregnant employee must submit a complaint to California Civil Rights Department (CRD). Employees have three years to file this complaint after the date of the alleged violation.

If the DFEH cannot resolve the dispute, it will issue the employee a right-to-sue letter. Only then can the employee file a lawsuit against their employer. ⁠The employee would need to show four things:

  1. California’s discrimination laws cover the employer;
  2. The employer fired, demoted, or refused to promote the employee (or took another adverse action);
  3. The employer’s reason was the employee’s pregnancy, possible future pregnancy, or pregnancy-related disability, and
  4. The employer’s adverse action caused the employee harm⁠

Employees have one year to sue after receiving the right-to-sue letter. The employee may seek such remedies as:

  • Compensatory damages (such as lost wages);
  • Punitive damages (to punish the employer); and/or
  • Job reinstatement

Employers may not fire or otherwise retaliate against employees for filing a claim or lawsuit.

Legal Counsel

Suppose an employer discriminated against you because of your pregnancy; you may be entitled to recover past and future wage and benefit loss, past and future emotional distress, punitive damages, costs of suit, and attorney fees. Contact Freeburg & Granier, APC, today for the benefits of an attorney-client relationship in your discrimination case.

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