This year marks the thirtieth anniversary of the bestselling pregnancy manual What to Expect When You’re Expecting. The most recent edition of What to Expect includes some general information about the legal rights of pregnant employees under federal law alongside practical advice about how to tell your boss you are pregnant and tips for staying safe and healthy on the job. In homage to What to Expect, this post provides a guide to the legal rights of pregnant employees in California organized by (what else?) trimester.
The First Trimester
What You May Be Concerned About
- In your first months of pregnancy, you may be concerned about when and how to tell your employer that you are pregnant, and about how your employer will react when you do.
- If you are looking for a new job, you may wonder whether you should tell prospective employers that about your pregnancy.
- If you have been missing work or coming in late due to morning sickness or other pregnancy-related health complications, you may be worried that your employer will fire or discipline you.
- If your job is strenuous or hazardous, you may be concerned about your ability to safely continue working during your pregnancy.
- If your doctor has placed restrictions on what you can do because of your pregnancy, you may be wondering about a possible workplace accommodation.
What it is Important to Know
Pregnancy-based discrimination is illegal. It is illegal for your employer to discriminate against you because you are pregnant. California law prohibits employers from discriminating against pregnant employees with respect to training, compensation, or virtually any other aspect of employment. Your employer may not fire or demote you because you are pregnant. Your employer also may not take away your job responsibilities or deny you a promotion because you are pregnant.
It is also illegal for an employer not to offer you employment because you are pregnant. However, it may be difficult to prove that your pregnancy was a factor in a potential employer’s decision not to hire you. If you are not showing, you might consider waiting until you have an offer before disclosing your pregnancy to a potential employer.
Family and Medical Care Leave/California Family Rights Act Leave (FMLA/CFRA)
The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) guarantee eligible employees an unpaid, job-protected family or medical leave of absence for a maximum of twelve weeks within a rolling twelve-month period generally measured backward from the date you use any FMLA/CFRA leave.
To be eligible for this leave, you must (1) have been employed for at least twelve months within the past five years; (2) have worked at least 1,250 hours in the year preceding your request for leave, and (3) work within 75 miles of at least 49 employees in your Company.
This job-protected leave means you will be able to return to the same or a comparable position after your leave, except where your position is eliminated for business reasons unrelated to your leave. Your employer may not refuse to permit you to return to your original position because your boss likes your temporary replacement better or because during your leave, it identified performance deficiencies that existed prior to your leave.
Pregnancy Disability Leave (PDL)
Employees are eligible for Pregnancy Disability Leave even if they do not qualify for leave under the FMLA and the CFRA, i.e. if an employee has worked less than 1,250 hours in the preceding year, or works for an employer with less than 50 employees. The Pregnancy Disability Leave (PDL) law requires California employers with five or more employees to provide up to four months of job-protected disability leave to women who are disabled due to pregnancy, childbirth, or related medical conditions. This leave can be taken intermittently, meaning you can use it for appointments with your doctor or midwife, or for a particularly awful bout of morning sickness. This leave entitlement is independent of any leave for which you may qualify under the FMLA and CFRA and does not run concurrently with FMLA/CFRA leave.
To take PDL, companies can require that you obtain a medical certification from a health care provider. Generally, for normal pregnancies, providers will certify a leave of up to four weeks before birth, and six weeks after birth, or eight weeks after a C-section. The maximum possible leave is four months for pregnancy disability under the PDL, if medically required (which includes any period of disability certified by a physician before or after the birth of the child).
No Requirement That Maternity Leave Be Paid
There is no requirement that an employer pay you during your pregnancy-related leave. Your employer may require you to use up your sick leave during your PDL, and you may elect to use vacation during your PDL in order to receive compensation. However, you may be eligible for State Disability Insurance (“SDI”) while you take PDL and medical leave under the FMLA/CFRA. Additionally, as discussed below, you may be eligible for Paid Family Leave for bonding with your child.
If you take PDL, your employer must hold your job open for you so that you can return to it at the end of your leave. If your employer eliminates your position, it must offer you a position that is comparable in terms of pay, job content, opportunity for promotion, and location unless no such position exists.
Your employer must provide you reasonable accommodations, including temporary transfer. If you have work restrictions related to your pregnancy, you may request a reasonable accommodation and your employer is required to make the requested accommodation unless it poses an undue hardship on the employer. Reasonable accommodations may include temporarily modifying your work duties, providing you with a stool or chair, or allowing you to take more frequent breaks. Your employer may require verification of your limitations, but only from your own medical provider.
Under California law, an employer may not refuse your request, on the advice of your doctor, for a temporary transfer to a less strenuous or hazardous position, so long as the transfer request can be reasonably accommodated without an undue hardship to the employer. The key to this rule is the word “reasonably”—your employer needn’t create a new position for you, discharge any employee, transfer any employee with more seniority, or promote an employee who is not qualified to perform the job.
The Second Trimester
What You May Be Concerned About
- As your belly grows, your boss or coworker may make inappropriate comments about your figure or even touch your belly. It may seem that one glance at your pregnant belly causes people to abandon social mores and act in ways they would never consider were you not pregnant.
- With your baby’s arrival less than six months away, you may be actively planning for any leave you would like to take after your baby is born and worrying that your employer could fire or demote you if you take too much time off.
What it is Important to Know
Pregnancy doesn’t excuse harassment. Harassing or unwelcome conduct relating to pregnancy is illegal if it creates a hostile, intimidating, or offensive work environment, or if it interferes with your performance at work. If a supervisor is harassing you, your employer is responsible, even if it didn’t know about the harassment. Harassment by a co-worker who is not your supervisor is unlawful if your employer knew or should have known about the conduct, unless the employer shows it took immediate, appropriate steps to address the harassment. Notify your supervisor or Human Resources department immediately if you believe you are experiencing harassment.
Many California employees are entitled to twelve weeks of baby bonding leave, in addition to PDL. If you work for an employer that has 50 or more employees (including part-time employees) within 75 miles of your workplace, you may be entitled to baby bonding leave under the FMLA and the CFRA. To qualify, you must meet duration and time requirements: you must have been working for your employer for a year or more and worked for your employer at least 1,250 hours (the equivalent of about 25 hours per week) in the twelve months before your leave begins.
Coordinating FMLA, PDL, and CFRA Leave and Wage Replacement Benefits
If you meet the requirements under the FMLA or CFRA, you may take 12 weeks of unpaid, job protected bonding leave after the birth of your child. Alternatively, as set forth above, if you do not meet the FMLA/CFRA requirements, you can take unpaid, job protected leave under the PDL for the time you are disabled by the pregnancy, for up to four months. During the time you are disabled from working due to pregnancy, , you may be eligible for California SDI benefits. During your bonding leave, you may be eligible for California Paid Family Leave benefits.
If you are entitled to both PDL and CFRA leave, you may stack them together: CFRA baby bonding leave starts only after a woman’s healthcare provider has released her to return to work, which is typically six to eight weeks after the birth of a baby. So, for example, if your doctor releases you to return to work six weeks after you give birth, you are entitled to six weeks of PDL plus an additional twelve weeks of CFRA leave, for a total of eighteen weeks of leave after your baby’s birth.
Both parents are eligible for FMLA/CFRA baby bonding leave. A parent may take the leave at any time in the first year after his or her baby is born. (However, if both parents work for the same employer, the two parents are only entitled to a combined total of twelve weeks.)
The Third Trimester
What You May Be Concerned About
- You may be concerned about maintaining your health insurance and other employment benefits during your leave.
- You may be worrying about how you will make ends meet during your time off.
What it is Important to Know
You may be entitled to continued benefits during your leave. If you are eligible for leave under FMLA and CFRA, your employer must continue to provide you health insurance under its group plan on the same basis as it provides health insurance to active employees. During baby bonding leave, you are entitled to accrual of seniority and to participate in employee benefit plans, including life, short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as would apply to any other leave granted by your employer for any reason other than FMLA/CFRA leave.
California employees may qualify for six weeks of paid leave. Your employer is not required to pay you during your baby bonding leave, so unless your employer has a generous leave policy, your leave is unlikely to be paid in full. From an international perspective, the United States is an extreme outlier in that it does not provide for any paid family leave for baby bonding. California employees are better off than many U.S. employees because of a state program called Family Temporary Disability Insurance (FTDI) or Paid Family Leave (PFL). FTDI pays 55% of your salary, up to $1,075 per week in 2014, for the first six weeks after your baby’s birth.
Both parents may claim FTDI benefits, but not at the same time—FTDI benefits may not be claimed during a period in which another parent is available to care for the baby. Your spouse or partner may claim FTDI benefits for up to six weeks if she or he takes FMLA/CFRA leave to bond with the baby after you have returned to work.
If you have suffered discrimination because an employer refused to make adequate accommodations in the workplace, has denied you PDL or maternity leave or refused to hold your job until you’ve returned, please contact us today to speak with our experienced pregnancy discrimination attorneys.
Coming up next: What to Expect From Your California Employer in the First Years