More than 3 million babies are born per year. That means a lot of pregnant mothers in and out of the workforce. Luckily, California has a law in place to protect women who are disabled due to pregnancy, childbirth, or a related illness. Not all states provide job protection for women in these circumstances, so it’s important to know if and when you are eligible for Pregnancy Disability Leave (PDL). On this webpage, the following topics will be covered:
- What to Expect (at work) When You’re Expecting
- What are the Qualifying Events?
- Is Maternity Leave Paid or Unpaid?
- When Does FMLA and CFRA Come in?
- What Limitations are There?
- Updates to the FEHA California Pregnancy Regulations as of 2013
- Pregnancy Discrimination is Prohibited
- Why You Would Need an Experienced Pregnancy Disability Lawyer
We should note that nothing on this page should serve as a substitute for speaking with an experienced leave of absence lawyer.
What to Expect (at work) When You’re Expecting
The moment you find out you’re pregnant, it’s going to be a roller coaster of emotions and thoughts. The excitement will soon start to include anxiety about the pregnancy and preparing for life after the child is born. Included in this are the possible impact that your pregnancy can have on your job. Below, the possible happenings at work are broken into the three trimesters of your pregnancy:
1st Trimester – This is an exciting time, but can also be scary when dealing with your job. Employers’ reactions to pregnancies may be a problem if you’re new to a job. Typically, employers don’t want to hire new employees that are pregnant, because they know they’ll have to train someone else while you’re out on leave in a few months. During this time, you may also experience extreme morning sickness that causes you to need some time off of work. Garibay v. US Law Center, Cal
2nd Trimester – During this second trimester, your figure may start to change. Your co-workers may start to comment on your pregnancy or even uninvitedly touch your belly. Unfortunately, these comments won’t always be appropriate and may even border on harassment. Some people also experience fatigue at this time, causing her to leave work early or take days off.
3rd Trimester – This last part of the pregnancy is when you’ll be taking your maternity leave. This period may worry you, regarding maintaining your hard-earned standing at work, including health insurance and other benefits.
About Pregnancy Disability Leave
Not all employees are eligible for Pregnancy Disability Leave and not all pregnant women need to take pregnancy disability leave. Like FMLA and CFRA, an employee must qualify for the leave by meeting several conditions:
- The employee is working for an employer who has 5 or more employees
- The employee may take more than 4 month of leave if the employer’s policy allows for more than 4 months off, due to a pregnancy
A pregnant employee is not required to take all of her pregnancy disability leave (PDL) at once. She is allowed to take time off intermittently, as needed, in hours, days, weeks, or months. The leave can be for any disability related to pregnancy, such as in the first trimester because of morning sickness, or the last semester due to inability to perform routine work. The days that you need to leave work or take time off to visit the doctor is also covered under PDL.
A medical certificate from your medical provider isn’t always required, just if your employer asks you for it in order to approve your PDL request. In this case, you’ll need to provide a certificate from your medical provider with the following information:
- A statement that the employee is temporarily disabled because of a pregnancy, childbirth, or a related medical condition. This disability needs to be significant enough that the doctor deems her unable to successfully perform her regular duties without putting herself or the fetus/child at risk.
- The date that the disability started or when it will start
- An estimated duration of the disability and if the employee will need to take intermittent leave
Pregnancy disability leave is a different law than disability leave. To learn more about disability leave, as opposed to PDL, visit our disability leave page.
Is Pregnancy Disability Leave Paid or Unpaid?
The law does not force an employer to pay an employee while she is on a pregnancy-related leave. Before PDL kicks in, your employer may require you to use up your sick days first though. After that, you can choose to use up your vacation days if you want to be compensated on your days off of work.
While on PDL, the employer is required to provide the eligible employee with continued health care benefits for the entire duration of the leave. They are also required to keep your job open for you while you take PDL, and allow you to resume your position when you come back to work. If during that time, your job is no longer available, the employer must offer a position that is equal to your old job, in terms of pay, responsibilities, opportunity for promotions, as well as location of work.
When Does FMLA and CFRA Come in?
FMLA and CFRA are similar leave acts, at the federal and state level, respectively. However, CFRA specifically excludes coverage for the time off for incapacity, related to pregnancy, childbirth, or a related serious medical condition.
FMLA – Pregnancy disability leave and FMLA run concurrently. That means that an employee who takes 12 weeks off because of a pregnancy, childbirth or related medical condition will have used up the max of 12 weeks of FMLA leave as well as 12 weeks of the four months allowed for PDL. Visit the FMLA page for more detailed information on eligibility for FMLA leave.
CFRA – Pregnancy disability leave and CFRA do not run concurrently. As mentioned above, CFRA does not cover disabilities that are a result of pregnancies or child birth. CFRA can be taken after a child is born, for bonding or caring for the child, if he/she was born by a certain date. A pregnant employee can take up to 4 months of PDL and then 12 work weeks of CFRA leave for reasons of child birth. Visit the CFRA California Family Rights Act page for more information regarding this leave law.
What Limitations Are There?
There are some limitations that a pregnant employee should be aware of. Not every woman qualifies for the full 4 months of PDL. If a doctor releases you to go back to work after 6 weeks after giving birth, you will be allowed 6 weeks of leave under Pregnancy Disability Leave. After the 6 weeks of PDL, you are entitled to 12 weeks of CFRA baby bonding time. It is at the discretion of the woman’s health care provider or physician to determine if she is, in fact, disabled by the pregnancy, childbirth, or related-medical condition. Basically, you can qualify for PDL if your doctor says you’re unable to perform your job duties.
Updates to the FEHA California Pregnancy Regulations as of 2013
As of December 30, 2012, Amendments to California’s pregnancy regulations have become effective. Below are some of the significant changes that were made by FEHA:
- Employees can take up to four months of pregnancy disability leave per pregnancy; not per year
- The definition of disability by pregnancy has expanded to include: severe morning sickness, time off for prenatal or postnatal care, bed rest, post-partum depression, gestational diabetes, pregnancy-induced hypertension, preeclampsia, childbirth, miscarriage or end of a pregnancy, and recovery time after childbirth
- The employer is excused from giving the employee back her exact job position, ONLY IF the employer can prove that the employee would not have been employed after she returns, for reasons that are not related to the PDL. For instance, a mass layoff (while she was on PDL) would have included letter that pregnant employee go. Spaziano v. Lucky Stores, Inc
- The employer must provide reasonable accommodations for the pregnant employee, if it is medically advisable by her healthcare provider. The employee doesn’t need to create a new position or fire another employee just to get provide a workable environment. However, reasonable accommodations mean: modifying work schedules, providing stools or chairs, allowing more restroom breaks, etc.
- Employers are required to give all employees advanced written notice of their rights regarding pregnancy disability leave law. The employer must put the notice in a noticeable place; employees who give notice of pregnancy must also be notified; the PDL statute must be published in the company handbook or distributed each year.
- Employees who are “perceived” to be pregnant are protected from discrimination
Pregnancy Discrimination is Prohibited
In addition to the provisions protecting pregnant women in the workplace, it is also against the law to discriminate against pregnant women. To read the statute in whole, visit the Government Code § 12945 page. To sum it up, this section of the Government Code says that these are unlawful employment practices, under usual circumstances:
- For an employer to refuse a qualified employee to take leave due to pregnancy, childbirth, or related medical condition. The reasonable period of time is no more than four months.
- For an employer to refuse the employee on PDL to continue her health care benefits for the duration of her leave, up to four months
- For an employer to not provide reasonable accommodations for an employee who cannot perform her regular duties due to pregnancy, childbirth, or related medical condition (if she requests it, with the advice of her doctor)
- For an employer to deny the pregnant employee a temporary transfer to a less dangerous or strenuous job for the duration of her pregnancy
Why You Would Need an Experienced Pregnancy Disability Lawyer
Through this delightful time of pregnancy and expecting an addition to your family, you may also experience the ugly side of it. You might be discriminated against by your employer, wrongfully denied pregnancy leave or not be given proper accommodations to work during maternity. An experienced pregnancy discrimination lawyer can help you realize what should rightfully be protected under pregnancy disability leave. We always provide a free over-the-phone consultation, so give us a call about your situation.