Question

I am pregnant and my doctor has advised that I take time off each week for some preventative treatment. My employer’s policy only allows employees to take pregnancy leave in one block of time. I have been told that I will have to use all of my vacation time for any time I take off before I go out on pregnancy leave and that if I do not have enough vacation time, I will not be permitted to take the time off. I am willing to take the time unpaid. Is it legal for an employer to require that an employee take her entire pregnancy disability leave in one block of time? What should I do?

Answer:

No, that is not legal. California law provides that all employers with 5 or more employees must provide a leave of up to four months as needed for the period of time a woman is actually disabled by pregnancy. This is true even if an employer has a policy or practice, which provides less than four months of leave for other, similarly situated temporarily disabled employees. Notably, if an employer has a more generous leave policy for other temporarily disabilities, the employer must provide that more generous leave to an employee temporarily disabled by pregnancy.

Pursuant to the regulations issued by the Fair Employment Housing Commission, four-months of leave means the number of days the employee would normally work during four months. The example given is a full time employee who works five eight hours days per week. In that case four months means eighty-eight 8-hour days of leave entitlement. This is based on an average of twenty-two working days per month for four months. For employees working more or less than five days a week or who work an alternative workweek schedule, the number of working days, which constitutes four months of leave, is calculated on a pro-rata or proportional basis.

Contrary to your employer’s policy, employers are required to provide leave on an intermittent or reduced work schedule basis when medically advisable as determined by the healthcare provider of the employee. An employer may limit leave increments to the shortest period of time that that employer’s payroll system uses to account for absences or use of leave.

If an employee takes leave on an intermittent basis or through a reduced work schedule, only the amount of leave actually taken may be counted towards the four months of leave to which the employee is entitled. For example, if an employee misses two hours of work in the morning, for medical treatment related to her pregnancy, only two hours can be charged against her pregnancy disability leave entitlement.

I suggest you discuss the above with your employer and work out a schedule that meets both of your needs.
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