In California, employees who are “disabled” because of pregnancy or childbirth are entitled to up to 4 months PDL (pregnancy disability leave). The leave is applicable provided an employee remains “disabled”.
Define “disabled” as per pregnancy leave regulations
In case you don’t know what it means to be disabled as per pregnancy leave regulations in California, a woman is considered “disabled” by her pregnancy when her physician deems her incapable of doing any essential job function/s because of her pregnancy. This is common during/around the last weeks of pregnancy (around week 36 for most women).
The leave is meant to give an employee time off work to protect their health/wellbeing as well as that of their unborn baby. The leave is generally unpaid and isn’t considered as part of maternity leave.
Pregnancy disability leave (PDL) applies in addition to other leave eligible under (FEHA) Fair Employment & Housing Act and the CFRA (California Family Rights Act), among other state laws, local ordinances, or employer-specific leave policies. The CFRA offers 12 weeks in addition to the four months offered by PDL if an employee remains disabled for a prolonged time (more than 4 months).
California employees can also qualify for post-childbirth leave under the (NPLA) New Parent Leave Act. The law allows fathers to enjoy leave alongside their partners after childbirth.
Eligibility criteria for a California pregnancy disability leave
There are two main eligibility requirements for pregnancy disability leave in California. You (the employee) must be:
- Working for a covered employer
- Disabled by pregnancy/childbirth/related medical condition
1. Working for a covered employer
You must be working for a state/government entity, an employer with 5 or more employees, or an agent of a covered employer (person or business) to qualify for pregnancy disability leave.
2. Disabled by pregnancy/childbirth/related medical conditions
You must be medically incapable of working effectively (performing one or more essential job functions) because of pregnancy, childbirth, or related medical conditions. The incapability must be confirmed by a doctor. Incapability includes but isn’t limited to; extreme morning sickness, post-partum depression, miscarriage, emotional recovery because of a miscarriage/pregnancy-induced hypertension, preeclampsia, doctor-ordered bed rest, diabetes, etc.
Who doesn’t qualify for pregnancy disability leave in California?
If you work for some corporations and religious nonprofit associations, you may not qualify for pregnancy disability leave in California since such organizations aren’t considered employers on matters regarding pregnancy disability law.
Important: Prior to a leave being given, the employer must make all reasonable efforts to accommodate the employee. However, the efforts should be made if they don’t unduly strain or burden an employer.
Accommodations covered under pregnancy disability law in California
The law stipulates accommodations that should be made in your work environment to help you do your job when you are pregnant. Your employer should:
- Modify your work duties to make them less strenuous
- Allow you to use aids such as a special chair or stool that helps you work better
- Transfer you temporarily to a less hazardous or less strenuous job, if need be
- Allow you more frequent and/or longer breaks
- Offer private lactation accommodations
- Allow pregnancy disability leave and additional leave, where necessary as part of reasonable accommodation.
Taking pregnancy disability leave
Requesting for pregnancy disability leave is easy. If you meet the eligibility criteria above, inform your employer immediately. Employers should be given a 30-day notice, which they must respond to in writing.
Besides offering a written guarantee, employers should include an assurance that you will get your job back after your leave if you choose to go back to work.
Your employer has the right to ask for written medical certification from your doctor as proof that you need the leave.
Can I take my leave all at once?
You are not compelled to take your leave intermittently or all at once. You can take your leave as per your doctor’s recommendations, which can be months, weeks, days, or hours at a time. For instance, you can take a couple of hours off daily or a few days a week.
Can my employer force me to take PDL?
You are at liberty to take or forgo PDL. Your employer is compeled to make reasonable accommodations as per pregnancy disability laws in California whether or not you choose to take PDL. However, your doctor can compel you to take PDL for your own good or that of your baby.
If your doctor compels you to work 30-hour weeks, but you can’t complete your assignments at work within that time, you can request for accommodation i.e., teleworking if you can complete your work from home. Your employer is required by law to offer such accommodation. However, they can’t require you to take leave instead of teleworking.
Exceptions to the pregnancy disability law
If there is a mass layoff while you are on leave, you can be laid off legally. If an employer had plans underway to eliminate your position and those plans are unrelated to your condition or you being on leave, the law doesn’t prohibit such actions.
If there’s no comparable job position to your old one, your employer can place you elsewhere. However, there are strong protections in such instances. Generally, there are limited and strict exceptions to the pregnancy disability law in California.
How do you ask for pregnancy disability leave?
If you want to take PDL, there are three main steps to follow, namely:
- Issuing a notice
- Providing supporting documents
- Requesting for reasonable accommodation
If you want to take PDL, you must provide your employer with a notice. The notice should contain the time you expect to take the leave, the expected duration, and sufficient facts to allow your employer to grant the leave. Such facts can include the need for pregnancy disability leave or family leave under applicable laws.
Although employees have a right to take leave, and employers can’t deny PDL or any other applicable leave, the notice should be drafted as a request. However, there are exceptions. For instance, the notice should be timely, allowing the employer to make the necessary arrangements/accommodations.
Can you make a verbal PDL request?
Yes. However, it is wise to put your request in writing for obvious reasons. You should also keep a copy of your request in case of a dispute in the future. The written request should also contain as much information as possible about your situation to help your employer act accordingly. The request should include typical information like expected due dates as well as modes of communication if need be when you are on leave.
When should you request for PDL?
You should give your employer at least a 30 days’ notice. Some employers have specific timelines for granting PDL or related leave, so it’s important to check in advance. In case you have a sudden or unexpected need for a PDL (i.e., because of a medical emergency), you should give your notice as soon as possible. As discussed above, covered employees have the right to PDL resulting from sudden or unforeseen issues related to pregnancy or related medical emergencies.
What medical documents do you need to get a pregnancy disability leave?
As discussed above, you may need written medical certification from your doctor to be granted PDL. The documentation is important for proving that you have been “disabled” by pregnancy, childbirth, or related conditions. The documentation should include a written certification from your doctor, among other supporting medical documents, if needed. Your employer may also require you/your doctor to answer some questions aimed at finding out if the absence warrants leave.
Requesting for reasonable accommodation
Although employees who have been “disabled” by pregnancy are entitled to reasonable accommodation, employers need to know about such “disabilities” before they can accommodate the employees in question.
As a result, an employee must tell their employer about their condition. A third party can also convey the need for reasonable accommodation. Employers can also become aware of such needs through observation.
Important: Employers aren’t required to understand the legal consequences of the condition. However, they must know the facts “behind” the condition’s existence and its impact on an employee’s work.
Employees are also required to provide a notice highlighting the need for accommodation unless this is obvious. Employees are required to initiate the process of requesting reasonable accommodation unless the disability and resulting limitations are obvious. Employees can initiate an interactive process with their employer to discuss appropriate accommodation.
Although there are several avenues for requesting for accommodation, a clear and direct path informing an employer is highly recommendable since it is explicit enough and ensures employers understand all there is to know about an employee’s needs.
Violation of pregnancy disability leave: Taking action against your employer
If your rights to PDL or reasonable accommodation are violated, you can take action immediately. Despite the existence of clear guidelines as per California labor laws, there are employers who will still violate their employee’s rights to PDL. As an employee, you have four main options:
- Resolve dispute informally with your employer
- File a complaint via the Department of Fair Employment & Housing (DFEH)
- File charge of discrimination with the EEOC
- File a lawsuit
1. Resolve dispute informally with your employer
In some cases, you can be denied leave by a manager who may not be 100% knowledgeable about pregnancy disability leave. In such an instance, you can go directly to your employer and attempt to resolve such disputes informally. There are obvious pros and cons of informal dispute resolution mechanisms such as retaliation or employment discrimination, but having an informal chat with your employer can resolve a PDL dispute in most cases.
However, the importance of formal dispute resolution channels can’t be overlooked. It may also be advisable to seek legal advice before attending an informal dispute resolution session with your employer.
2. File a complaint via Department of Fair Employment & Housing (DFEH)
If you suspect your rights to PDL have been violated, visit www.dfeh.ca.gov and file a complaint. Alternatively, you can call the DFEH on 800 884 1684 or email the contact center (email@example.com). To file a complaint with the DFEH, you must fill in and submit an intake form to initiate an interview to determine if a formal complaint is warranted.
Important: An alleged incident must occur within California for the department to have jurisdiction over such an incident. Also, provide a detailed complaint since the department needs adequate information to determine if a complaint can be filed.
3. File charge of discrimination with the EEOC
If you have been discriminated against because you are pregnant, you can also file a charge with the United States Equal Employment Opportunity Commission. The EEOC is responsible for safeguarding the PDA (Pregnancy Disability Act), the legislation that forbids discrimination because of pregnancy on all aspects of employment, including hiring, pay, job assignments, layoffs, and fringe benefits like leave. Under the PDA, employees temporarily disabled because of pregnancy should enjoy the same benefits enjoyed by temporarily disabled employees.
Filing a charge of discrimination involves giving a signed statement claiming that your employer has engaged in a form of employment discrimination. It also serves as a formal request for the EEOC to take action. There are time limits that must be met when filing a charge. The time limits are dependent on factors such as when pregnancy discrimination took place. Typically, you have 180 days to file. An extension can be given (up to 300 days).
You can use the EEOC’s online portal to file a charge. Charges can also be filed in person at any EEOC office near you. The EEOC allows walk-in appointments. You can also schedule an appointment. You can find the nearest EEOC office nearest to you here. When filing in person, have as much information as possible about your case, including the letter of appointment, notice, performance evaluation, witness information, etc.
You can also file a charge via telephone 1800 669 4000 or via a local/state fair employment practice agency (FEPA). FEPAs are responsible for enforcing laws that prohibit employment discrimination in the US.
Lastly, you can file a charge by mail. This option is suitable for claimants who have 60 days or less. When filing by mail, your charge must include your personal details (name, email, telephone number, and address), employer details, description of the pregnancy discrimination (i.e., if you were denied leave, demoted or fired for seeking PDL), the date and your signature. Charges that don’t include the above information (especially your signature) can’t be investigated.
4. File a lawsuit
If you don’t prefer using the above investigation processes or channels, you can file a pregnancy discrimination lawsuit in court. You need a pregnancy discrimination attorney to file a lawsuit given the different laws applicable when determining employment discrimination cases. For instance, you need a right-to-sue before you file employment discrimination related lawsuits in court.
A pregnancy discrimination lawyer will be able to assess your case, notify you of your rights, and handle the technicalities of the case, including representing you and negotiating for a settlement.
There are obvious cons to pursuing your rights as an employee. Employers have been guilty of discriminating against employees who challenge them formally or informally. If you face retaliatory action such as being wrongfully terminated, being demoted, transferred, or sacked because of seeking your right to pregnancy disability leave, you can take legal action against your employer.
You have a right to file a charge or complaint, testify, and assist in a pregnancy discrimination claim investigation against your employer. Most importantly, your employer can’t retaliate against you for doing so.
Do you need an attorney to defend you in a PDL case?
As discussed above, you can file claims against your employer directly. However, it’s a bad idea to do so in most cases. California’s labor laws are complex. Furthermore, very few pregnancy disability leave cases, among other types of employment discrimination cases are straightforward. As a result, you may think you have a strong case but still get an unfavorable outcome if you don’t involve a workplace discrimination attorney. For instance, you may get a lower settlement if you argue out a workplace discrimination case alone.
What is the role of a workplace discrimination lawyer in a PDL case?
A lawyer will:
1. Give legal advice
2. Help you collect legally relevant information
3. Apply applicable law to collected evidence and related facts
4. Avoid strategic pitfalls that the regular employee tends to overlook
5. Maximize the settlement amount/financial damages you receive
Handling legal disputes alone poses serious risks. You can harm your own case because of legal missteps that an attorney can easily avoid. In most cases, employers will contest employee claims. Legal arguments are, therefore, inevitable. You must present evidence in court or through an administrative agency in a complicated legal process. It’s always advisable to have an attorney familiar with such processes.
FAQs about California Pregnancy Disability Leave
1. I am a part-time employee. Am I eligible for a California pregnancy disability leave?
Yes! You don’t need to work for a certain number of hours to be eligible for pregnancy disability leave. In California, both part-time employees and brand new employees qualify for leave if they qualify as disabled because of pregnancy.
2. Can I return to the same position after coming back from leave?
If you take pregnancy disability leave, you are entitled to return to work and continue working in your old position or a new position comparable to the old one i.e., the job should have similar benefits, salary/hourly rate, similar or identical duties, and similar educational/experience requirements. A comparable position should offer similar or better benefits. However, the law doesn’t allow a demotion as part of the changes an employee should be subjected to when they come back from pregnancy disability leave.
However, you can agree (on your own accord/without been pressurized) to take a new position because of your own personal reasons or because of the offerings of that new position.
3. Am I entitled to pay during my pregnancy disability leave?
The law doesn’t compel employers to pay employees who take a pregnancy disability leave. However, your employer must maintain your medical coverage in full as well as all other medical benefits.
You may be entitled to compensation from different avenues depending on some circumstances. For instance, you may be eligible for California’s SDI (short-term disability insurance) program, temporary disability pay (if you have it through your employer), and employee’s accrued leave applicable during sick days, vacation, or other paid time off.
If you use your paid time off or paid vacation during your pregnancy disability leave, you must be paid accordingly. The same applies if you are eligible to paid leave under certain laws or local ordinances like paid family leave.
4. Can I be laid off because I am pregnant or because I am on pregnancy disability leave?
It’s illegal for employers in California to refuse to hire you, fire you, bar, discharge, harass, or discriminate against you because of pregnancy, childbirth, or related conditions. As mentioned above, your employer is obligated by law to accommodate you as well as reserve your job position for you when you get back. A replacement can be hired while you are away. However, you should get your job back when you return.
5. Can I lose my benefits, promotion, or title because of taking PDL?
No! It’s illegal for an employer to demote or deny an employee their benefits because they have taken PDL. You should be entitled to the same benefits and seniority accorded/accrued while on other types of leave.
6. Can my employer count my pregnancy disability leave as sick leave or vacation leave?
Your employer may or may not require you to utilize available sick leave during your pregnancy disability leave. If they don’t require you, you can use the leave as you wish during PDL.
7. I need more than 4 months of PDL. What should I do?
If you are still “disabled” by pregnancy after four months of taking pregnancy disability leave, you can request for more/other leave under CFRA or reasonable accommodations under FEHA, which may include added time off work.
You may be entitled to other leave i.e., leave to bond with your new child. Such leave (under the CFRA) will give you 12 additional weeks that must be utilized within a year of birth, the commencement of foster care, or adoption. If you don’t qualify for leave to bond under CFRA, you may be eligible under NPLA.
8. What are the requirements for leave under the NPLA and CFRA?
To qualify for leave to bond under the NPLA or CFRA, you should have worked for 1250 hours or more in the past year for an employer with 50 or more employees under the CFRA or 20 or more employees under the NPLA.
9. What other leave can I get besides PDL and CFRA leave to bond?
The FEHA offers guidelines on how pregnancy disability leave works in regard to other provisions. You can be entitled to other leave or reasonable accommodations beyond what pregnancy disability leave requires. For instance, you may qualify for FMLA leave. However, the DFEH doesn’t enforce FMLA. You should seek legal advice to understand all your leave rights.
10. Can I qualify for FMLA, NPLA, PDL and CFRA?
You can take any leave provided you qualify. PDL can be taken alongside FMLA. CFRA is usually considered separate from PDL and CFRA (sometimes) when taken for because of childbirth, pregnancy disability, or related medical conditions. You can’t qualify for NPLA is you qualify for CFRA and FMLA. Lastly, you can qualify for an extra 12 weeks bonding leave under NPLA or CFRA depending on the leave you get.
11. I have taken PDL, can my husband take leave as well?
Fathers are entitled to new parent leave in California under the NPLA (New Parent Leave Act). As of 1st January 2018, fathers and mothers are eligible to leave after the birth of a biological child, adoption, or when a child is placed in foster care. NPLA applies to employers who have 20 or more workers. As an employee, you must be covered with at least a year or work or 1250 hours before taking leave.
California Pregnancy Disability Leave Cases
California has strict laws on how employers are supposed to treat employees “disabled” by pregnancy. Employers are prohibited from taking discriminatory action against pregnant employees. Instead, they should make reasonable accommodations to allow such workers to discharge their duties while at work and safeguard their right to employment after taking applicable leave.
There have been many pregnancy disability leave related cases in California in the past. Some of the most notable include;
- Pregnant Worker v. Louisanne Restaurant
- Pregnant Model v. Price is Right Productions, Inc.
- Rosario Juarez v. AutoZone
1. Pregnant Worker v. Louisanne Restaurant
In 2018, LA’s Louisanne Restaurant settled a pregnancy discrimination case for $82,500. The restaurant and night club was also ordered to pay other relief as part of the case brought forward by the EEOC. According to the lawsuit, Louisanne violated the law by failing to make reasonable accommodation after discovering one of its servers was pregnant. Instead, the restaurant reduced the working hours of the subject and eventually terminated her. Louisanne Restaurant went as far as refusing to let her get back to work after giving birth. The lawsuit also uncovered other workers who had experienced similar fate during their pregnancies.
According to the EEOC suit filed in the United States District Court (Central District of California), LA Louisanne, Inc.’s conduct violated the PDA. The verdict included a $82,500 monetary relief and establishment of a fund. LA Louisanne was also ordered to monitor and revise its discrimination and harassment policies as well as train employees on the revised policies. The EEOC also put LA Louisanne under three-year’s compliance monitoring.
2. Brandi Cochran v. Price is Right Productions, Inc.
In 2012, a jury awarded model Brandi Cochran $7.7 million for being subjected to pregnancy discrimination by her then-employer, Price Is Right Productions. According to the case details, Cochran stated that she was denied her right to get back to work after maternity leave.
Cochran alleged that the Price is Right productions’ producers refused to hire her back, claiming that they didn’t want Cochran to bring a bad baby story considering one of her twin babies had died during birth. Price is Right also stated that they had enough models already when Cochran sought to get back to work. Cochran also claimed the producers had made unflattering remarks about her body during pregnancy.
3. Rosario Juarez v. AutoZone
In 2000, AutoZone hired Rosario Juarez. Initially, Juarez worked as a customer service rep before being promoted to sales manager a year later. The aftermarket automotive parts retailer promoted Juarez further to store manager after she complained to human resources in 2004 and requested for a promotion.
In 2005, Juarez became pregnant. According to Juarez’s testimony, her boss suggested that she steps down since she couldn’t discharge her duties well while expectant. Juarez refused. According to court records, her employer continued to harass her after she gave birth.
In 2006, she was demoted to her 2001 role (parts sales manager). According to AutoZone attorneys, the demotion was based on poor performance and not because of her pregnancy or childbirth. The attorneys claimed she failed to improve in many areas.
After her demotion, Juarez was subjected to longer working hours, among other workplace discriminatory practices like orders to redo her work without a valid reason. Juarez also claimed she was yelled at and humiliated in the presence of her co-workers. In 2008, she filed a case after making numerous complaints in vain and being fired for giving her deposition.
In 2014, the jury gave a unanimous decision holding AutoZone liable of gender/pregnancy discrimination, failure to stop/prevent harassment in the workplace, and retaliatory action. On 17th November 2014, Juarez was awarded $185 million, ending the punitive phase. AutoZone v. Rosario Juarez is arguably the largest US employment law verdict ever for an individual.
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