Legal Question in Employment Law in California

Under California law, employers must allow employees to take up to 4 months off for a disability related to pregnancy, in addition to FMLA/CFRA rights, if qualified. If your doctor has provided a medical certification stating you are unable to work because of a pregnancy related disability, it would be very foolish for your employer to terminate you based on their insurer's denial by a doctor who probably has not seen you.

If you are unsure how to handle this situation, you should meet with an experienced employment law attorney to explore your legal options.

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.

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.

If the employer has 5 or more employees, it must comply with the FEHA (and its 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, including one that is longer than FMLA and CFRA�s 12 weeks.

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. You should contact an attorney who specializes in employment law. Please feel free to call our office at (213) 536-4236.