Pregnancy Discrimination

The Pregnant Employee and Her Rights

Employment Pregnancy Discrimination in California

It is illegal for an employer to discriminate against employees or job applicants on the basis of pregnancy, childbirth, or related medical conditions. Employers may not treat pregnant women differently or unfairly with respect to hiring, firing, compensation, or virtually any other aspect of employment. It is also unlawful for an employer to deny women employment opportunities, which include promotions and training opportunities, because the employer believes they might become pregnant at some time in the future.

Which Employers do Pregnancy Discrimination Laws Apply to?

Generally, the number of employees in your workplace will determine what laws apply to you and your legal rights with respect to disability leaves, returning to work, and benefits relating to pregnancy, childbirth and related conditions.

In California, The California Fair Employment and Housing Act (FEHA) applies to workplaces with 5 or more employees, as well as all employment agencies, labor organizations, state licensing boards, and state and local governments. California law also prohibits all employers with at least 1 employee from harassing an employee or an applicant seeking employment because of that woman’s pregnancy, or perceived pregnancy. Additionally, employers with 5 or more employees also must provide reasonable accommodations and job-protected disability leave for up to 4 months for pregnancy, childbirth, and other related conditions. The Family Medical Leave Act (FMLA ) and the California Family Rights Act (CFRA) give certain employees additional leave-and-return and child bonding rights as well. It is important to note that an employer is not permitted to force a pregnant employee to take a leave of absence or pregnancy disability leave when she has not requested it.

An employee who is disabled by pregnancy, childbirth or a medical condition related to pregnancy is entitled to take a pregnancy leave of absence of up to four months. When the employee is released to return to work following her pregnancy leave of absence, she is entitled to be reinstated to the same position she held before taking her leave of absence, or, if that position is not available, then to a comparable position. If the leave of absence is foreseeable, the employee must give reasonable notice to her employer of the date she expects to begin her leave and the duration of time she will be away from work on her leave. For example, if the employee knows her expected due date, she should provide notice to her employer of her expected due date and the amount of time she will be on her leave of absence.

What Protections Does a Pregnant Employee Have if She is Sick While Pregnant?

A pregnant woman may, at times experience pregnancy-related illnesses, such as severe morning sickness, back pain, pregnancy-related diabetes or hypertension, etc. These illnesses may not necessarily require that the employee be placed on a leave of absence but they may obligate the employer to provide reasonable accommodation to the employee. Reasonable accommodation is a change or modification to the work environment that can make it easier for the pregnant employee to perform the essential functions of her job. Examples of reasonable accommodation include:

• Modifying the employee’s work schedule and/or work hours,;
• Providing the employee with a stool or chair;
• Allowing the employee to take frequent breaks;
• Transferring the employee to a less strenuous position;
• Permitting the employee to take time off for medical appointments;
• Providing the employee with relief from lifting heavy objects;
• Providing the employee with flexible scheduling to accommodate morning sickness and prenatal doctor visits;
• Transferring the employee to a less hazardous or strenuous position upon request if the transfer can be reasonably accommodated.

What Constitutes Pregnancy Discrimination in the Workplace?

An employer violates California law and may be held responsible for pregnancy discrimination if the employer treats the pregnant employee differently than other employees because she is pregnant. Pregnancy discrimination also occurs when the employer refuses to provide the pregnant employee with reasonable accommodation. The following are examples of pregnancy discrimination:

• Refusing to hire an employee because she is pregnant or may become pregnant;
• Refusing to promote a pregnant employee because she is pregnant;
• Refusing to provide a pregnant employee with time off for doctor’s appointments related to her pregnancy;
• Refusing to transfer a pregnant woman to a less strenuous position;
• Ignoring medical restrictions pertaining to an employee’s pregnancy-related illness;
• Firing an employee when she gives notice to her employer of her pregnancy;
• Firing an employee while the employee is on a pregnancy leave of absence;
• Refusing to allow an employee to return to work following her leave of absence;
• Arbitrarily reducing a pregnant employee’s work hours;
• Arbitrarily demoting a pregnant employee;
• Giving a pregnant employee an unfair performance evaluation;
• Transferring a pregnant employee to a more strenuous position;
• Denying an employee the right to take time to use a breast pump to express milk.

IMPORTANT TO NOTE:
Although your employer is required to provide you with reasonable accommodation while you are pregnant, it is not required to create additional employment, discharge another employee, transfer another employee with more seniority, or promote you to a job for which you are not qualified due to pregnancy.

What is Pregnancy Disability Leave?

Under California law, an employee is entitled to job-protected, unpaid leave for up to four months while she is disabled by pregnancy, childbirth, or related conditions. “Disabled” simply means that the employee is unable to perform the essential functions of her. While an employee need not file a claim with a California agency to obtain pregnancy disability leave, an employee must request the time off from her employer directly and she may be asked to support this request with medical documentation. The employee’s physician or other licensed care provider will certify when the employee’s pregnancy disability begins and ends. Certification given to an employer must show the date of disability, time needed off work, and an explanation of why the employee cannot work. This certification is confidential.

Employers must inform all employees of their right to take PDL and include this information in company handbooks.

IMPORTANT:
For a normal pregnancy, health care providers typically certify that a woman is disabled beginning 4 weeks before her due date through 6 weeks following a vaginal delivery, or 8 weeks following a C-section birth.

Pregnant women in California who contribute to the State Disability Insurance (SDI) program are entitled to receive partial wage replacement benefits during their pregnancy disability leave. Contact the Employment Development Department at www.edd.ca.gov for more information or to apply for SDI.

Pregnancy Disability Leave Limitations

Limitations on pregnancy disability leave in California include an employer’s right to demand medical certification of your disability and an employer’s right to discontinue health insurance if this is its policy for other types of disability leave. Accordingly, companies that provide benefits for temporary disabilities and extend leave beyond 4 months must do the same for pregnancy-related disabilities. An employee may have the option of using her paid vacation leave for part of her pregnancy disability leave.

What is a Pregnant Woman Required to do Before Taking Disability Leave?

Pregnancy disability leave may be triggered by “qualifying events” concerning the pregnancy, childbirth or other related conditions.

Examples of “qualifying events” are:

• Bed rest ordered by a physician;
• Childbirth and recovery from childbirth;
• Prenatal care; and
• Severe morning sickness.

An employer should be given 30 days notice before taking a pregnancy disability leave, or before a transfer or accommodation is to begin, if the need for the leave, transfer, or accommodation is foreseeable. If the approximate date or duration for the leave is not known, the employee must give notice as soon as she is able. Examples of this situation are the timing for an adoption or no knowledge of an actual due date. If the need for leave, transfer, or accommodation is not foreseeable, like in an emergency birth, an employer must be given notice as soon as possible.

Returning to Work

An employer is required to guarantee the same or a directly comparable position upon the employee’s return from pregnancy disability leave. The only circumstance in which an employer can deny the employee the same position is if it had to be eliminated due to layoffs or location closures. An employer is also required to provide the employee with a less hazardous or strenuous position if needed where such a position exists. The employer must also accommodate reasonable recommendations from a doctor.

No one should be discriminated against because of pregnancy or because of a pregnancy-related disability. If you believe that you have been discriminated against because you are pregnant or disabled because of your pregnancy, or if your employer has failed to provide you with reasonable accommodation, contact us for a free consultation and let Hicks & Hicks fight for your workplace rights.