The announcement that you’re about to have a baby should be an exciting and joyful one. However, for some employees in California, it can result in workplace discrimination, demotion, denial of a promotion, failure to be hired, and possibly even termination.
Sometimes it is difficult to prove that your employer is terminating you because you are pregnant or have pregnancy related issues, but that doesn’t mean it isn’t happening.
Stephen Danz & Associates have over 30 years of experience defending California employees from the illegal and discriminatory acts of their employers.
California employees, under the California Pregnancy Disability Leave Law ( PDLL), have the right to take up to four months of pregnancy disability leave, where it is warranted by either the pregnancy or issues related to the pregnancy of the employee. Employers are prohibited from discriminating against pregnant employees based on their pregnancy or related issues.
In addition, employees are entitled to take an additional 12 weeks of leave in order to bond with the baby once it is born, under the California Family Rights Act ( CFRA).
Much of the pregnancy related legislation simply addresses the misconception brought about by the Supreme Court’s erroneous ruling in General Electric Company v. Gilbert that pregnancy discrimination was not discrimination based on sex, but was rather discrimination between pregnant people and non-pregnant people (as men fit into that latter category), and was therefore permissible.
This, and several previous rulings by the Supreme Court, led the legislature to pass the Pregnancy Discrimination Act, as an amendment sex discrimination section of the Civil Rights Act of 1964.
Since then, the States have passed their own Acts pointed towards stemming the effects of discrimination against pregnant women, California in particular, as mentioned above.
An employee is eligible to take a Pregnancy Disability Leave if she works for an employer with more than 5 employees. Additional leaves under the Family Medical Leave Act (which run concurrent) cover fewer employees in California as they have additional requirements that must be met in order to qualify as ‘covered.’ For instance, under the FMLA an employee is eligible to take a pregnancy related leave if she has worked for her employer for at least a year, and has been on the job for at least 1250 hours over the course of that year, and has not taken more than the total 12 weeks of leave in the year including the requested leave.
While this covers many employees, it does not cover as many employees as the California requirements to provide a Pregnancy Disability Leave.
In addition, the California Family Rights Act, while not providing for a specific pregnancy leave, does provide for a leave of up to 12 weeks in order to bond with the baby after the child is born.
INTERMITTENT PREGNANCY LEAVE
An employee who is pregnant and/or experiencing pregnancy related issues is not required to take all of her leave at one time. Intermittent leave is available, i.e. taking leave in shorter time periods, just as it is available for any other type of disability. In fact, employees who take intermittent leave for pregnancy or pregnancy related issues, must be treated exactly the same as any other employee taking a leave for any other type of disability. Employees may take incremental leaves in time periods of weeks, days, or hours where necessary.
While an employer may require a doctor’s note for each requested intermittent leave, they may not do so unless it is their standard practice for every other employee taking intermittent leaves for non-pregnancy related issues.
MEDICAL CERTIFICATIONS FOR PREGNANCY LEAVES
If a doctor’s note (also known as a medical certification) is required for other types of disability leaves, the employer may require one for pregnancy leaves, as well. The certification should contain the following information:
- A statement that the employee has a disability due to pregnancy, childbirth, or a related medical condition and because of the disability she cannot perform an essential function of her position without undue risk to herself, the successful completion of her pregnancy, or to others;
- The date on which the employee became/will become disabled; and
- The probable duration of the disability, and whether or not the employee needs to take intermittent leave.
CONTINUED HEALTH CARE AND WAGE REPLACEMENT
Employees taking advantage of a Pregnancy Disability Leave are also entitled to continued health and dental coverage as if they were still reporting to work each day. While the employer may be able to require the employee to pay for her share of the coverage, she cannot be denied access to her same health plan simply because of the leave. In addition, where an employee has paid into the State Disability Insurance (SDI) system, she may be entitled to receive wage replacement while out on leave.
USE OF SICK OR VACATION PAY WHILE ON PREGNANCY LEAVE
Generally, either an employer or employee can choose to apply the employee’s paid sick leave during pregnancy disability leave. However, only an employee can decide to use her vacation or personal time off during her pregnancy disability leave; an employer cannot require her to do so.
NOTICE REQUIREMENTS FOR PREGNANCY LEAVE
Where possible, an employee must give her employer 30 days notice of her intent to take a pregnancy disability leave. In many instances however, emergencies may arise or issues may not allow 30 days before the leave must be taken. In those cases, an employee is required to give whatever notice is practicable. The notice given should outline the reasons for the leave and the amount of time it is estimated that the employee will be out of work.
PROTECTIONS FOR PREGNANT EMPLOYEES TAKING LEAVES
When an employee returns to work after having taken a Pregnancy Disability Leave, she is entitled to return to her same position. If the employer cannot reasonably return her to her original position, the employer must put her in a position that is the same or substantially similar. A comparable position is one that has the same pay rate, job responsibilities, schedule, physical and mental requirements, etc.
For instance, you cannot be required to go from a position as an accountant to a position as a longshoreman. You could be required to go from a position as a secretary for one executive to a position as a secretary for a different executive, providing all of the other factors relating to the job remained the same.
JOB ACCOMMODATIONS FOR PREGNANCY RELATED CONDITIONS
Where an employee is able to remain on the job and perform the essential functions of the position but may need some sort of job accommodation, just as with any other disability, the employer is required to provide those accommodations, even if that means they must allow additional leave time beyond the original 12 weeks. (See case in point: below).
A job accommodation must be provided where:
- the employer has 5 or more employees;
- the employee’s health care provider can provide documentation that the accommodation is needed; and
- the requested accommodation is ‘reasonable.’
An excellent source of information on job accommodations is the Job Accommodation Network website ( JAN), which also provides guidance on whether a particular accommodation is reasonable under the circumstances, or not.
Under the CFRA, as mentioned previously, an employee (either male or female) can take time off after the birth of a baby for bonding leave. The bonding leave can be taken for the birth of the person’s biological or surrogate child or after placement of an adopted child. A bonding leave may be up to 12 weeks and is in addition to any Pregnancy Disability Leave taken before the birth of the child.
Bonding Leaves are taken under the CFRA which mirrors many of the same requirements that the FMLA places on whether an employer is subject to the act. In order to be bound by the CFRA and the FMLA an employer must have 50 employees, and the employee must have worked there for a year and have worked at least 1250 hours in the year before taking the leave.
Bonding leaves follow many of the same provisions as with the Pregnancy Disability Leaves discussed above. Paid sick or vacation leave may be used where available, notice should be given, intermittent (limited) leave is allowed, and the employee must be returned to a same or similar position upon return. Medical certification is NOT required, however proof of the birth or adoption of the child can be requested.
If both parents work for the same employer, they may be limited to 12 weeks total, as opposed to 12 weeks individually. If they work for different employers and are otherwise eligible, however, they may be able to take 12 weeks each.
PREGNANCY DISCRIMINATION AND RETALIATION
If an employer interferes with an employee’s rights under any of the above listed regulations, the employer may be liable for damages as a result of that interference. In addition, there are also many cases of pregnancy discrimination filed each year.
Stephen Danz & Associates are experts on pregnancy discrimination cases. These cases arise when an employer moves a pregnant individual to a less desirable position, refuses to hire an employee because of a pregnancy or a pregnancy related condition, refuses to promote or otherwise provide some sort of benefit, or simply terminates the employee.
While often difficult to prove, pregnancy related discrimination, like other forms of discrimination can result in substantial monetary rewards and settlements when all of the evidence is gathered correctly.
In cases of retaliation, where an employee has taken a leave and then been discharged, or where an employee reports discrimination or participates in an investigation and then is penalized, rewards can be similarly quite large if proven satisfactorily.
Pregnancy discrimination is on the rise in many sectors of private employment, particularly in male dominated industries. Construction, sales, mining, manufacturing, and maintenance all shows signs of increasing negative treatment for women who are pregnant or suspected of being pregnant.
CASE IN POINT
In Sanchez v. Swissport, Inc., Ana Sanchez was a loyal employee of Swissport who became pregnant with a high risk pregnancy. The company granted her 19 weeks of leave, but terminated her when the leave expired but she was unable to return to work because she was still on bed rest. Upon her termination, Sanchez sued Swissport for failure to accommodate, essentially saying that the company had a duty to extend the leave as a reasonable accommodation. Sanchez apparently had all available doctor’s certifications and it was ultimately held that even though the company claimed that they had fully complied with all legal requirements for pregnancy leave, the Court on appeal, felt otherwise and concluded that, just like any other protected condition, a pregnant employee should be entitled to additional leave as a form of potentially reasonable accommodation. As a protected condition, this might include not only additional leave, but lighter duties, intermittent time off, assistance at the job site, transfer to a different job, or a myriad of other accommodations. All that is required is that an employee be able to do the essential functions of their job, or be transferred to one which is available and consistent with union eligibility. (A union agreement is sometimes referred to as a Collective Bargaining Agreement, or in the case of many public employees, a Memorandum of Understanding. The courts are required to treat these agreements as federal law, as they are arrived at under the authority of the National Labor Relations Board Act. Thus, the court will not lend itself to enforcement of a settlement or verdict that violates federal law).
The above case is another good example of why every effort should be made to file your pregnancy disability lawsuit in a California state court and allege violations only of California law. As of this writing, decisions under the Federal Equal Employment Opportunity law are not known to provide this protection.
If you feel you have been discriminated or retaliated against, or if you have attempted to take a pregnancy disability leave, or a bonding leave and have either been denied or penalized for doing so, contact Stephen Danz today at (877) 987-0707 or use the contact form on our website to schedule a free consultation today.
Stephen and one of his associates will sit down with you in a location that is convenient to your home, work or school. While he has offices in several cities around the state, Stephen regularly travels from San Diego to Northern California meeting with clients and attending court hearings and settlement conferences. He is happy to come to an office near you or even meet at a coffee shop if that would make things easier for you. During your free consultation we will go over the facts of your case, list any possible causes of action you might have, outline the procedures for each, and help develop a plan to gather evidence from your employer without doing anything illegal or that would result in the evidence later being inadmissible in court.
Stephen has over thirty years of practicing nothing but employment law. He has focused his practice solely on defending employees in California. He does not represent employers or big business. He regularly attends and speaks at conferences on employment law matters, teaching other attorney how to handle complicated employment law issues. He has even been called to testify by other employment attorneys as an expert in the field of employment law and the complicated issues that arise therein.
Call our offices today. Do not let your employer violate your rights as an employee in California.
We look forward to defending your rights.