Pregnancy

If an employee is “disabled” by pregnancy, childbirth, or related medical conditions, the employee is entitled under the California Pregnancy Disability Leave Law ("PDLL") to take a leave for a reasonable period of time not to exceed four months and thereafter return to work.  Cal. Gov. Code § 12945(a). A "related medical condition" is defined as "any medically recognized physical or mental condition that is related to pregnancy or childbirth..." 2 Cal. Code Reg. 7291.2.

If an employer grants an employee pregnancy disability leave or transfer, "the employer shall guarantee to reinstate the employee to the same position, or to a comparable position." If the employee requests the guarantee in writing, the employer must provide the writing to the employee. It is unlawful for an employer to refuse to reinstate the employee, unless an exception applies. 2 Cal. Code Reg. 7291.9.

The employee does need to take the four months leave all at one or in one block, the employee's "leave may be taken intermittently or on a reduced work schedule when medically advisable, as determined by the health care provider of the employee." 2 Cal. Code Reg. 7291.7.  For example the employee can use the leave to work only three or four days a week and the days the employee does not work will be subtracted from the overall four month maximum allowed.

An employer must also provide "reasonable accommodation for an employee for conditions related to pregnancy, childbirth, or related medical conditions, if she so requests, with the advice of her health care provider." 2 Cal. Code Reg. 7291.6.

If an employee wishes to request PDLL leave or transfer from her employer, the employee must give either written or verbal notice “sufficient to make the employer aware that the employee needs a pregnancy disability leave or transfer, and the anticipated timing and duration of the leave or transfer.”  2 Cal. Code Reg. 7291.10(a).

CA Family Rights Act ("CFRA")/Family And Medical Leave Act ("FMLA")

Under the CFRA/FMLA, an employee is entitled to "a total of 12 workweeks of leave during any 12-month period" for one or more of the following reasons:

• Birth of a son or daughter of the employee, in order to care for the son or daughter.
• To care for a spouse, son, daughter, or parent of the employee if the spouse, son, daughter, or parent has a serious health condition. 29 USCS § 2612.
  • "To care for" includes physical and psychological care. 29 Code Fed. Reg. 825.124(a). Examples include situations where the family member is:
    • and when employee needs to be a "substitute for others who normally care for the family member or covered service member, or to make arrangements for changes in care, such as transfer to a nursing home." 29 Code Fed. Reg. 825.124.
    • "providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care,"
    • "unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor,"
• The employee is unable to perform the functions of their job because of a serious health condition. 29 USCS § 2612(a)(1)(A)-(D).
  • Serious health condition under FMLA is defined as "an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, (staying overnight or longer at a hospital, hospice or residential medical care facility) or continuing treatment by a health care provider." 29 USCS § 2611(11). Examples include:
    • A mother is entitled to leave for incapacity (being unable to work, attend school or perform other regular daily activity) because of her pregnancy, for prenatal care, or for a serious health condition after the birth of the child; 29 Code Fed. Reg. 825.120.
    • A husband is entitled to leave to care for his pregnant spouse if she is incapacitated or if the leave is needed to care for her during her prenatal care, or if it is needed to care for his pregnant spouse after the birth of the child if the spouse has a serious health condition; 29 Code Fed. Reg.  825.120.

Under FMLA an employee is not required to take their leave of absence all at one time.  The employee is allowed to take the leave intermittently or on a reduced leave schedule. Intermittent leave is leave taken “in separate blocks of time due to a single qualifying reason.”  A reduced leave schedule is “a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.”  29 Code Fed. Reg. 825.202(a).

For an employee to receive leave covered under FMLA from his or her employer, the employee must give the employer notice, either verbal or written. 29 Code Fed. Reg. 825.302. The employee's notice must let the employee know the reason for the leave that is covered by FMLA.  29 Code Fed. Reg. 825.302.  The notice must also contain the timing and duration the employee anticipates the leave to take up.  29 Code Fed. Reg. 825.302.

When an employee comes back from FMLA leave they are entitled to be reinstated by the employer to their same position or an equivalent position. 29 USCS § 2614. The equivalent position is to have “equivalent employment benefits, pay, and other terms and conditions of employment.” 29 USCS § 2614.

Pregnancy Discrimination Act (Title VII) ("PDA")

The PDA prohibits wrongful termination on the basis of “pregnancy, childbirth, or related medical conditions.” 42 U.S.C.S. § 2000(e)(k). “[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”  42 U.S.C.S. § 2000(e)(k).  Written or unwritten employment policies and practices involving matters “such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or disability insurance or sick leave plan, formal or informal” shall be applied on the same terms and condition to employees with disabilities due to pregnancy, childbirth or related medical conditions as are applied to employees with other disabilities.  29 Code Fed. Reg. 1604.10.

“As a general matter, a woman’s medical condition rendering her unable to become pregnant naturally is a medical condition related to pregnancy and childbirth for purposes of the Pregnancy Discrimination Act.”  Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1403 (1994).

Examples

Harassment and Write-Ups by Employer:  An employee discovers that she is pregnant and she informs her boss a day or two thereafter.  The company’s management does not object or complain about the pregnancy and the employee is simply asked to keep the company informed regarding when she would need to take a leave of absence.  Soon thereafter, however, the employee’s manager:

1. Tells the employee that her pregnancy will cause her to be unable to do the job.
2. Deliberately find ways to make the employee feel uncomfortable by asking personal and intrusive questions about what is happening to the employee’s body due to the pregnancy.
3. Becomes more critical of the employee’s work performance than before.
4. Sets the employee up with more difficult assignments and challenges that none of the employee’s coworkers have to face and thereafter the manager writes-up the employee when she is unable to perform according to the new standard.
5. Require the employee to work overtime or on one of her days off, fully knowing that one of the days off is when the employee is scheduled to have a prenatal doctor’s visit.

Failure Or Refusal To Acknowledge Pregnancy by Employer:  An employee discovers that she is pregnant and she informs her boss a day or two thereafter.  The company’s management brushes-off the employee’s statement, to make it seem as though they are not interested or do not want to hear about the employee’s pregnancy.  The employee’s manager may even ignore the information or pretend to forget about it.

In this type of a situation, the company may be attempting to hide the fact that it received notification of the employee’s pregnancy and the company could be preparing to terminate the employee right away before the company receives any further information about the pregnancy.  The employer may then terminate the employee shortly thereafter and point to an old write-up as the purported reason for the termination.  This type of pregnancy-related termination likely will occur quickly after the company is informed about the pregnancy because an employer may believe that it has to terminate the employee quickly to hide that it in fact terminated the employee to avoid having to "deal with" the requirements that come with having a pregnant employee.  The company may believe that it can claim it lacked knowledge of the employee’s condition if the information was provided by the employee through a verbal statement or a single email that can be deleted. 

Contact Sani Law Today

If you believe your employer has treated you adversely, including wrongfully terminated you, discriminated against you, retaliated against you, or harassed you, you should Contact Sani Law today to schedule a free initial consultation.