Pregnancy Discrimination Guide
In California, there are several distinct laws that give a woman the right to take maternity leave. Two of the most important of these laws are California’s Fair Employment and Housing Act (called “FEHA”) and the Pregnancy Leave (“PDL” or “CFRA”).
Pregnancy Discrimination in California
These statutes are really quite different. FEHA applies only to cases where a doctor has certified that a pregnant woman or new mother suffers from a “disability” based on pregnancy, childbirth, or conditions related to pregnancy. If a doctor makes this certification, a woman may take up to four months off from work. In contrast, CFRA give employees of medium to large companies the right, if they want to, to take time off for baby bonding. The leave may be taken for a maximum of three months. It may be taken for baby bonding by new mothers and fathers.
Whether a leave is taken under CFRA, or FEHA, the employer must return the employee to the same or comparable position after the leave ends. Further, the employer may not discriminate against an employee for taking leave under FEHA for medical conditions, or for taking baby bonding leave under CFRA.
If you believe you have been subjected to such discrimination, please contact us immediately.
What Is Pregnancy Disability Leave?
There are several laws in place in California that protect the rights of pregnant women. These protections extend beyond just maternity leave. In fact, California, pregnant mothers are entitled to maternity leave for reasons beyond caring for the child.
California mothers have the right to take time off from work based on disabilities “related to” the pregnancy and childbirth. What does this mean for practical purposes? What is a disability relating to pregnancy?
The definition of “disabled” in these circumstances is very broad indeed. If a woman’s doctor certifies it, a woman is considered disabled by pregnancy or childbirth if she is unable to perform an essential function of her job. For example, if a woman can’t stand during work hours because of her pregnancy, she would not be able to perform work activities that required her to stand. Therefore, she would be considered disabled by her pregnancy and not able to work and entitled to take a legally protected medical leave.
In California, pregnant women are not required to work where they would jeopardize their health, or the health of their baby, by doing so. Thus, a woman is disabled by pregnancy or childbirth if her health care provider certifies an opinion that the woman can not perform an essential function of her job without undue risk to herself, to her baby, or to anyone else.
Morning sickness might also be the basis for a doctor’s certification of a medical leave if the woman’s sickness is severe.
California’s regulations provide a list of examples of conditions or situations where a woman could be considered, subject to the doctor’s certification, to be disabled by pregnancy. These include (but are not limited to):
- Prenatal care.
- Postnatal care.
- Bed rest.
- Gestational diabetes.
- Pregnancy-induced hypertension.
- Post-partum depression.
- Loss or end of pregnancy
- Recovery from childbirth.
If you believe your employer has failed to comply with the legal requirements for pregnancy leave, or you have been terminated or discriminated against because you requested, or took, pregnancy leave, please contact Daniel Feder, an experienced pregnancy discrimination lawyer.
Compensation During Maternity Leave
When working women in California become pregnant, a key question is whether or not they will be entitled to receive pay during the period that they are away from work to receive medical treatment for conditions relating to their pregnancy, or during their maternity leave.
So, when do pregnant women or new mothers get paid by their employer for time spent away from work?
Pregnant women who miss time off from work and new mothers are not necessarily entitled to receive compensation during the period they miss work .
However, there are many situations where pregnant women and new mothers are entitled to paid lave. Thus, if the employer has policies that give employees the right to paid leave for medical conditions unrelated to pregnancy, then an employer must pay for leave of a pregnant employee or new mother on exactly the same terms it would for leaves arising from other conditions. In other words, the employer can’t treat medical conditions related to pregnancy any differently than other medical conditions.
Many employers allow employees to accrue sick leave and vacation pay as part of their compensation structure. Where this is the case, and the mother has earned sick or vacation pay, the employee might be entitled to paid leave depending on the situation.
Employers in California are not allowed to force employees to use vacation pay during the period of pregnancy leave. Thus, if an employee has accrued vacation pay, the employer can’t require the employee to receive paid vacation pay during the leave. However, many employees want to use vacation pay during their pregnancy leave. Therefore, the law in California allows the employee to elect to use accrued vacation pay to receive compensation during the leave.
However, an employer in California may require an employee to use up sick time during a pregnancy leave, or for absences caused by pregnancy related conditions. Thus, if an employee has sick leave on the books, she might be required to use it for days missed due to pregnancy.
In California, pregnancy and childbirth-related medical conditions are considered to be disabilities entitling a pregnant or new mother to disability insurance payments. Thus, pregnant and new mothers should consider filing a claim for disability insurance benefits with the State of California to receive payments for time missed from work.
In all cases, an employer may not discriminate against you, or require you to suffer from discrimination because of your pregnancy. If you or a family member feels like you are being targeted because of pregnancy, or because you are requesting time off from work for leave due to pregnancy, or pregnancy related conditions, you should contact our offices.
Baby Bonding Leave in California
The Fair Employment and Housing Act (“FEHA”) is a law in California that gives an employee the right to take time off from work due to conditions related to pregnancy or childbirth. It is available only to women who are certified as being disabled by their doctors.
However, there are other laws that provide additional rights to families in addition to the rights that mothers and mothers-to-be have under FEHA. In addition to California’s pregnancy disability leave rights under FEHA, employees in California have separate leave rights under the California Family Rights Act (“CFRA”).
CFRA eave is called “baby bonding” leave. It is not available however, to all employees, only to those working for companies that have a threshold number of employees, and who have worked the required number of hours in the year before the leave will be taken.
To be eligible for leave under CFRA, certain tests must be met:
- Employer size. The employee must work for an employer that has at least 50 employees within a 75- mile radius of the employee’s worksite.
- Employment duration. The employee must have worked for their employer at least 1250 hours in the preceding than 12 months.
If the employee meets all of these tests, an employee is entitled to take up to 12 weeks of family leave in any given 12-month period.
Fathers benefit from this protection as do mothers. Mothers and fathers can use this leave for the purpose of child bonding. They don’t have to submit any certification from a physician attesting to the need for baby bonding leave. It’s guaranteed to all new mothers and fathers.
These leaves may be stacked. In other words, the CFRA leave may commence after the FEHA leave has ended. Thus, the CFRA bonding leave is permitted under CFRA after the employee users four months of pregnancy disability leave. An female employee may therefore take up to seven months of total maternity leave depending on the length of the employee’s pregnancy disability.
If your employer denies your request for leave, or terminates you while you are on pregnancy leave, or because you have made a request for either CFRA or FEHA leave, you may have a case for pregnancy discrimination, according to California employment law, and should contact The Law Offices of Daniel Feder immediately.