Five Key Rights Of California’s Pregnant Employees
According to a recent report prepared by the National Women’s Law Center, pregnant workers around the country are very often refused requests for temporary, reasonable modifications to their job duties so they can continue working during pregnancy – for example, the ability to sit for certain periods, to avoid heavy lifting, and to take more frequent bathroom breaks, despite the fact that current federal Americans With Disabilities Act (ADA) and Pregnancy Discrimination Act would appear to require employers to make such reasonable accommodations absent a showing of undue hardship. The report called for the EEOC to promulgate detailed regulatory guidance outlining the rights of pregnant workers under federal law and noted that such efforts would be consistent with the EEOC’s stated priority of protecting the rights of pregnant workers to accommodations for pregnancy-related limitations under the ADA and the PDA.
Pregnant workers in California need not wait for the EEOC to act to ensure they receive legal protections both during and after pregnancy.
California provides some of the strongest protections for pregnant workers in the country, which fall into five general categories: reasonable accommodation, pregnancy disability leave, bonding leave, reinstatement, and lactation accommodation.
1. Reasonable Accommodation
The California Fair Employment and Housing Act (FEHA) explicitly requires qualifying employers to provide reasonable accommodations for women who are unable to perform certain tasks or job duties due to pregnancy or a pregnancy-related medical condition (including, for example, severe morning sickness, post-partum depression, gestational diabetes, pregnancy-induced hypertension, preeclampsia, childbirth, and recovery from childbirth, or the loss or end of a pregnancy).
2. Pregnancy Disability Leave
California law also requires employers to provide pregnant employees with up to four months of unpaid leave for any period during which she is disabled due to pregnancy, childbirth, or a related medical condition. Pregnant employees may also use PDL intermittently, for example, to attend pre-natal medical appointments. Assuming the employer has more than five employees, the PDL provisions will apply to any pregnant employee working for that employer, with a new four-month leave entitlement per pregnancy. There is no length of service requirement before an employee becomes entitled to PDL.
3. Bonding Leave
Under the California Family Rights Act (CFRA), eligible employees may take up to 12 weeks leave for the birth of a child. CFRA leave is a separate leave entitlement and does not run concurrently with PDL.
When an employee’s PDL leave ends, her employer must return her to the same position she held prior to her leave. An employer is excused from reinstating an employee to her same position only if the employer can prove by a preponderance of the evidence that the employee would not have been employed upon her return for reasons unrelated to the leave, such as a mass layoff. If an employer cannot reinstate an employee to her prior position, the employer must reinstate her to a comparable position for which she is qualified. An employee returning from CFRA bonding leave is entitled reinstatement to the same or an equivalent position unless the employer can establish that the employee would not otherwise have been employed at the time of the reinstatement.
5. Lactation Accommodation
Finally, once an employee who has given birth returns to work, she is entitled to a lactation accommodation. California employers must provide employees who wish to express breast milk for nursing infants with a reasonable opportunity to take breaks in order to do so, as well as access to a private location (other than a public restroom) that is in close proximity to the employee’s regular work area.
Companies and employees should ensure that they take care to understand the various laws protecting pregnant workers, which in many cases will enable women to remain in the workforce both during and after pregnancy, thereby benefiting both.