Question:

One of my employees recently announced that she was pregnant and would need to take pregnancy leave. Although I am a very small employer, I don’t object to providing leave, I am just not sure of my legal obligations. Could you summarize my obligations?

Answer:

Under the California Fair Employment and Housing Act, employers with five (5) or more employees must provide each female employee a leave of absence of up to four (4) months if the employee becomes disabled by pregnancy, child birth, or related medical conditions. The leave is provided only for the period of time the woman is actually disabled by pregnancy. Therefore, a woman who is able to return to work before the expiration of four (4) months is not entitled to a full four (4) month leave of absence.

Unlike family medical leave, there is no length of service requirement before an employee is eligible for pregnancy disability leave. Pregnancy disability leave may be taken intermittently or on a reduced work schedule when medically advisable.

An employee is disabled by pregnancy if, in the opinion of her health care provider, she is unable to work, unable to perform an essential function of her job, or unable to perform those functions without undue risk to herself or the successful completion of her pregnancy. A woman suffering from severe morning sickness may be considered to be disabled by pregnancy. Also, an employee is entitled to reasonable accommodation for pregnancy, childbirth, or related medical conditions. Reasonable accommodations may include a temporary transfer to a less strenuous or hazardous position if medically necessary.

An employee who plans to take a pregnancy disability leave must provide her employer with thirty (30) days advance notice of the date the leave will begin, if the need for leave is foreseeable. If such advance notice is not possible, the employee must provide notice as soon as possible.

The employer may request the employee to provide a physician’s certification if the employer requires such certification from other temporarily disabled employees. The following information may be requested from the employee’s health care provider:

  • The date on which the employee became disabled due to pregnancy;
  • The likely duration of the period of disability; and
  • An explanatory statement that due to the disability the employee is unable to work or perform one (1) or more of the essential functions of her job.

All employers are required to provide a notice to their employees informing them of their right to request pregnancy disability leave or transfer. The notice shall be placed in a conspicuous place where employees tend to congregate. Employers who have employee handbooks are required to include information about pregnancy leave rights in their handbooks.

An employer may require that the employee use, or the employee may choose to use, sick leave during her pregnancy disability leave. The employee may elect to use accrued vacation time. During disability leave, the employee is entitled to the same benefits granted to other temporarily disabled employees. Thus, health and life insurance premium payments, pension accrual and profit sharing plans must be maintained for women on pregnancy disability leave to the same extent those benefits are made available for employees on other types of leaves.

Upon expiration of a pregnancy disability leave, the employer must reinstate the employee to the same position or a comparable position. An employer may refuse to reinstate the employee (1) if the employee’s job has ceased to exist because of legitimate business reasons unrelated to the employee’s pregnancy disability leave, or (2) if each means of preserving the job (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the employer’s ability to operate its business safely and efficiently.

If the employer cannot provide the employee the same job, the employer must provide her with a comparable job if such a job exists. A job is “comparable” when it is the same as the employee’s previously held position in terms of pay, benefits, working conditions, privileges, prerequisites, and status.

Further information regarding employers’ obligations to their pregnant employees under the California Fair Employment Housing Act can be obtained at http://www.dfeh.ca.gov/.
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