Pregnancy leave can be confusing and complex. 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 different 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 protects pregnant employees. The PDLL is part of the FEHA and provides eligible women 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.
Eligibility and PDLL Protections?
In order for pregnant women in California to be eligible for PDLL protections, certain requirements must be met. First, the employer must have more than five employees. Second, the pregnant worker 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 a full-time or part-time worker in order to be eligible for protections if she is employed by a covered employer.
An employee is qualified for PDLL protections if she is 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. It is important to note that conditions like morning sickness and time away from work for prenatal health care are considered eligible for protection under PDLL.
Protections PDLL Affords Disabled Employees
Under California’s Pregnancy Disability Leave Law, employers are required to allow eligible employees up to four months leave if considered disabled by pregnancy, childbirth or conditions related to pregnancy. While an employee is unable to work, employers cannot force employees to use up any of their accrued vacation time, though employees may choose to use such time as paid leave. However, employers may require employees to use sick leave, workers can choose to use this time as well.
Under PDLL, employers must also provide equal treatment for disabled pregnant workers and workers with non-pregnancy related disabilities such as providing reasonable accommodations for employees suffering from pregnancy-related disabilities, including transferring employees to alternative positions with equal benefits and wages. 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 a business necessity.
While an employee is out on pregnancy disability leave, state law requires her employer to continue and maintain group health plan coverage. As of January1, 2012, California’s Government Code Section 12945 requires employer paid health care coverage for eligible female employees taking pregnancy disability leave. This means up to four months of PDL during a 12-month period. The paid health care group plan coverage is to be the same as if the employee continuing working during her leave. 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.
PDLL and Notice Requirements
The employer is entitled to certain notice requirements before an employee will receive PDLL protections. Namely, 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 ten 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.
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)
Though employers can request medical documentation from the employee’s health care provider, the employer cannot require employees to provide them with additional medical opinions.
Employer Pregnancy Disability Leave Violations
Although PDLL provides pregnant women legal protections, some employers still violate the rights afforded to women on PDL. 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 denied PDL or being unfairly discriminated against in the workplace due to a pregnancy, she may have recourse against her employer. An employee may be entitled to monetary damages, job reinstatement and other legal remedies depending on the circumstances of the case. Speak to a California employment law attorney knowledgeable in pregnancy discrimination matters to discuss your situation and determine how to best protect your rights.