Legal Question in Employment Law in California

The California Fair Employment and Housing Act, Cal. Government Code, Section 12940, et seq.

Here are the general guidelines:

If and when you are denied legally protected leave, or are illegally discriminated or retaliated against because of requesting or taking the leave, or you are refused accommodation, then you can consider legal claims.

An employer is not allowed to 'discriminate' against a legally defined "disability", including pregnancy, by any adverse employment action like termination, demotion, harassment, hostile environment, etc. An employer is obligated to provide 'reasonable' accommodation of a disability/pregnancy upon proper notice of valid medical requirements, if accommodation can be done without substantial burden to the company, and accommodation will allow you to still perform all the essential functions of your job. Violation is grounds for a lawsuit. Every case is determined upon its merits and all the facts.

If your CA employer has at least 5 employees, they can not fire you because you are pregnant, must allow you to continue working as long as you are able, must 'reasonably' accommodate your disability, must allow up to 4 months of unpaid pregnancy leave under FEHA, and return you to the same or an equivalent job upon return to work, with accrued benefits.

If your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA / CFRA maternity / medical leave when you are unable to work [or must care for an immediate family member] because of a �SERIOUS health condition� [that is properly confirmed and documented by your doctor], continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The leave may be taken on reasonable intermittent basis if that need is properly documented by your medical provider. Being out sick with the minor illness or injury does not fall within the protections.

If you qualify for both, you get both. If you are out longer than those guarantees, they can fire you.

If your employer has a policy requiring they hold your job for you for a specific period of time while on disability, longer than the FMLA / CFRA rules provide, that is enforceable.

Overriding those stated protections, just because you are on leave does not mean you can�t be terminated. You have no special exemption against lay offs or termination due to business reasons. A company in downsizing can lay off a FMLA / CFRA leave person, as long as they can show they aren�t targeting �because of the leave�. They are simply risking claims if they do.

Upon termination from employment, you are entitled to COBRA conversion of your medical benefits [if any], allowing you to pay for and retain your insurance coverage.

Now, if they violated those rules, contact me for the legal help you'll need. I'll be happy to do so. I've been doing these cases for over 20 years.

There are several statutes that pertain to pregnant California employees including California's Pregnancy Disability Leave Law (PDL), The Federal Family and Medical Leave Act (FMLA), The California Fair Employment and Housing Act (FEHA), State Disability Insurance (SDI), and Paid Family Leave (PFL).

Under the PDL, a pregnant employee is entitled to up to 4 months of leave if she works for an employer with 5 or more employees. The time is unpaid and can be taken whenever a woman�s doctor certifies that she is disabled during pregnancy or after delivery. Being �disabled� by pregnancy means the employee is unable to work for a pregnancy related-reason. Simply being pregnant does not qualify as being disabled by pregnancy. �Disabled� by pregnancy includes (but is not limited to) pregnancy-related issues that make you unable to work such as severe morning sickness, prenatal visits, pregnancy complications, physician ordered bed rest, recovery from childbirth, etc. Employers must provide reasonable accommodations to pregnant employees upon the advice of the employee�s health care provider. An employer must also grant the request of a pregnant employee to transfer to a less strenuous job, if such a job exists. AFTER the leave, the employer must place the woman returning from PDL leave in the same job she held before the leave, or in some cases, a comparable position. An employee who is unable to return to work after taking 4 months of PDL, generally can be terminated. HOWEVER, the employer may NOT be able to terminate the employee who is unable to return to work after the 4 month PDL leave, depending on the employee�s rights under other employment statutes such as the FEHA (see below).

If the employer has 50 or more employees and you have worked for the employer for at least 12 months, and have you worked at least 1,250 hours during the last 12 months before the leave commences, your employer must comply with the FMLA. Under the FMLA, an employee can take up to 12 weeks of leave for a pregnancy-related serious health condition or prenatal care. Again, the person must be unable to work because of a pregnancy-related condition�pregnancy alone without incapacity or complications does not qualify. The mother can use FMLA leave for prenatal care and any incapacity relating to pregnancy, as well as for childbirth and any serious health condition following childbirth. The father can use FMLA leave for birth of the child and to care for his pregnant spouse if she is incapacitated. Under FMLA and CFRA, both the mother and father can take up to 12 weeks of �bonding leave� following the birth of a child. For �bonding� leave, neither the parents nor the child need have a serious health condition in order to qualify for the leave. If an employee is indisputably unable to return to work after the expiration of 12 weeks' leave, it does not violate CFRA or FMLA to terminate the employee. However, doing so may violate the PDL and FEHA (see above and below).

If the employer has 5 or more employees, it must comply with the FEHA (and it�s federal counterpart Title VII). The FEHA prohibits discrimination against employees based on sex. �Sex� is defined to include pregnancy, childbirth or medical conditions related to pregnancy or childbirth. Thus, employers with 5 or more employees may not terminate an employee because of pregnancy, because of pregnancy related medical conditions, or because she takes time off or intends to take time off due to pregnancy.

The FEHA also protects employees �disabled� by pregnancy. Employers must reasonably accommodate disabled employees, and they must engage in a conversation with the employee about what reasonable accommodation is appropriate. A �reasonable accommodation� can include a finite leave of absence for an amount of time that does not impose an undue hardship (significant difficulty or expense) on the employer. This can be more than FMLA�s 12 weeks or PDL�s 4 months if such a leave does not pose an undue hardship on the employer.

If the employer fewer than 5 employees, the only recourse is to sue the for wrongful termination in violation of public policy based on Article I, Section 8 of the California Constitution�s ban on sex discrimination.

SDI and PFL do not have to do with termination, but rather, extend disability compensation to individuals who take time off of work to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child. For California workers covered by State Disability Insurance (SDI), PFL insurance provides up to six weeks of benefits for individuals who must take time off to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child.

As you can see, the laws pertaining to pregnant employees are complicated, overlapping, and depend heavily on each individual�s factual circumstances. If you believe you may be been terminated because of your pregnancy, you should contact an attorney who specializes in employment law. Please feel free to call our office at (213) 536-4236.