Question:

I run a small business and have an employee who is about 6 months pregnant. I’m pretty sure that I am required to provide her with pregnancy leave when she has her baby, but I’m not sure exactly what I am supposed to do. This is my first pregnant employee and I want to make sure I don’t do anything wrong!

Answer:

California law is quite detailed when it comes to pregnant employees and pregnancy leave, so it’s wise to make sure that you’re doing what’s necessary to be in compliance. Employers with at least five full or part-time employees are subject to the Pregnancy Disability Leave (or “PDL”) laws in California. PDL provides that a female employee may take up to four months of unpaid leave for the period during which she is disabled due to pregnancy, childbirth, or a related medical condition.

Assuming you have more than five employees, the PDL provisions will apply to any pregnant employee who works for you. You should note that there is no length of service requirement before an employee becomes entitled to PDL, and that an employee is thus entitled to PDL beginning on the first day of her employment. Pregnant employees may use PDL intermittently or on a reduced work schedule, and may also use PDL for time away from work to attend prenatal medical appointments.

You may require a pregnant employee to provide medical verification from her doctor of her need for PDL. This verification should contain the date the employee became disabled due to her pregnancy, the expected duration of the leave, and an explanation of why the employee is unable to perform the essential functions of her job. A pregnant employee must provide at least 30 days’ notice of her need to take PDL if the need for the leave is foreseeable. If 30 days’ notice is not possible (for example, because of a medical emergency), the employee is required to notify her employer as soon as possible of her need for immediate PDL.

When your employee’s PDL ends, you must return her to the same position as when her leave began. This is true unless you have a compelling business need that precludes reinstatement, such as company-wide layoffs or business closure. If you cannot reinstate the employee to her exact same position (i.e., because it was eliminated or because you had to fill the position during the employee’s absence in order to avoid a substantial business hardship), the employee must be returned to a “substantially similar” position.

California employers are also required to provide female employees who wish to express breast milk for nursing infants with a reasonable opportunity to take breaks in order to do so, as well as access to a private location (other than a public restroom) that is in close proximity to the employee’s regular work area. An employee may be required to use her paid rest periods for purposes of expressing breast milk, but she is entitled to additional (unpaid) time if needed. This aspect of the law is taken very seriously by the California Department of Fair Employment and Housing (DFEH), which recently ruled in favor of an employee who was terminated for breastfeeding her infant in her car during her break. The DFEH found that the employer, a Southern California restaurant chain called Acosta Tacos, had engaged in sex discrimination for terminating the employee for breastfeeding, and for not providing her with the time and appropriate private facilities to do so. Acosta Tacos was also found liable for pregnancy disability discrimination because the employee was not returned to her same position when she returned from leave, but was instead assigned to fill in for another absent employee.

The Acosta Tacos case is a good example of why it’s just as important to have post-PDL policies in place as it is to have a PDL policy itself. Even an employer with good intentions that provides its pregnant employees with leave must ensure that those employees are treated fairly and in compliance with the law when that leave expires. To that end, employers should have policies addressing the duration of an employee’s PDL, post-leave reinstatement, and lactation accommodation following the employee’s return to work. Employers are also required to post workplace notices regarding PDL rights and California’s anti-discrimination laws. Workplace posters can be downloaded at the following website:
http://www.dfeh.ca.gov/DFEH/Publications/publications.aspx.
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