Brad Nakase, Employment Attorney
Everyone can agree that every woman should have the right to be absent from work during and after the pregnancy, without having to face the fear and risk of losing their job. A woman who is bringing a life into the world should not have to worry about a consequence such as being terminated.
Every woman deserves maternity leave, and in California, women have the legal right to take that time off from their job for the birth, adoption, and /or the foster care placement of their new child. In instances, some women even also have their right to be paid during that time.
Types of Maternity Leave
In the state of California, there are three types of maternity leave that employees have the right to during and after the birth of their child. Each type of maternity varies in requirements and length.
- Family Leave. When working for an employer that employs 20 or more people, employees have the right to take 12 weeks at most of family leave to bond with their new child.
- Pregnancy Disability Leave. An employee can take 4 months at most of maternity leave when they have a disability relating to their pregnancy or the birth of their child. This is only while that disability continues, and other requirements are met.
- Reasonable Accommodation Leave. An employee could exhaust other types of leave, but employers may still be required to give more time off work or accommodate for their employees’ disabilities relating to pregnancy.
These types of leaves can allow employees to take up to 7 months of maternity leave, if taken consecutively. Some employees will at times even be entitled to benefits and/or pay during their leave.
Maternity leave is generally unpaid unless an employee has a separate agreement regarding the legal right to pay during leave.
Pregnancy Disability Leave
Pregnancy disability leave is the time that an employee can take off from work if they are physically or mentally disabled due to their pregnancy, medical condition relating to pregnancy, and/or childbirth.
Under California law, to take pregnancy disability leave, an employee must:
- Be disabled by the pregnancy, medical condition, or the childbirth.
- Work for an employer (Most businesses with 5 or more employees) that is covered by pregnancy disability law in California.
It is important to note that the leave can be taken while the employee continues to be disabled, but the leave cannot exceed 4 months. The pregnancy disability leave can be spread over the course of the pregnancy, it does not necessarily have to be taken all at once.
How Is “Disability” Defined?
How does an employee know whether they are disabled by their pregnancy, childbirth, or pregnancy related medical condition? It is important for an employee to ask this question before considering taking their pregnancy disability leave.
Pregnancy is not considered a disability. A woman is officially disabled by their pregnancy if their doctor thinks that they are unable to perform essential functions of their job due to the pregnancy.
This usually occurs at approximately the 36th week of pregnancy, when most women will experience physical difficulty performing the essential functions of their job due to the pregnancy. Even sitting at a desk for long periods of time can physically strenuous and painful for pregnant women.
Disabling conditions that can entitle an employee to begin their pregnancy disability leave are:
- Strong and severe morning sickness.
- Need for bed rest.
- Prenatal and/pr postnatal care.
- Gestational diabetes.
- Port-partum depression.
- Loss or end of a pregnancy.
- Recovery from the loss or end of a pregnancy.
Although every woman is different in regard to their pregnancy and childbirth experience, the typical post-birth recovery time for vaginal birth with no complications is 6 weeks. For c-section or other form of birth with surgery necessary, the recovery time is 8 weeks or more. A woman is considered “disabled” by their pregnancy during this recovery time, by California law.
Employers that are required to provide pregnancy disability leave in California must fall into one of the following categories:
- A person or business that employs 5 or more people.
- A person or business that act as an agent of a covered employer.
- Is a state or local government entity.
It is important to note that there are religious nonprofits corporations and businesses that are not considered employers and thus not subject to the pregnancy disability leave law in California.
No Eligibility Restrictions
The pregnancy disability leave applies to ALL female employees of covered employers without any additional eligibility requirements, as long as they have a qualifying disability.
Part-time employees are entitled to the pregnancy disability leave just as full-time employees are. There no minimum length of service requirement to qualify for the leave, recently hired employees have the right to take the pregnancy disability leave as well.
Reinstatement Post- Pregnancy Disability Leave
California law has reinstatement protections for employees returning from pregnancy disability leave. Employees’ return to the same position and job is guaranteed, and they may request this guarantee from their employer in writing.
A common exception to this right is when an employee cannot return to the same or a comparable position at their workplace due to business reasons. These business reasons must be legitimate and be so even if the employee had not taken the pregnancy disability leave. An example of a legitimate business reason is a mass layoff.
California does not permit employers to deny employees their reinstatement with excuse of preserving the job for the employee being inconvenient.
Family & Child-Bonding Leave
Both male and female employees in California have the right to take 12 weeks at most of family leave per year. The leave is used by employees so they can bond with their new child after birth.
An employee can use their Family Leave after the use of any pregnancy disability leave to maximize their total of maternity leave to 7 months and depending on the continuation and duration of their pregnancy related disabilities.
As of January 2018, an employee is entitled to take child-bonding leave if:
- Their employer employs a minimum of 20 people withing 75 mi. of the employee’s worksite.
- In the last 12 months, the employee worked a minimum of 1,250 hours for employer.
- Employee worked for employer more than 12 months prior to the date that the period of leave is taken.
Employer is required to provide family leave for child-bonding purposes to employees that are eligible and meet the three requirements above.
Family leave must be completed within 1 year of the child’s birth, adoption, or foster care placement. And, although family leave does not need to be taken all at once by employee, the employer can require that the employee take the leave in a minimum duration of two weeks at a time.
Now, even if an employee’s position has been replaced or changed to accommodate for their absence, the employee has a guaranteed right to be reinstated after they return from their family leave. The employer can reinstate the employee in a different position that must be equivalent to the employee’s previous position, pay, benefits, schedule, shift, duties, responsibilities, and location. This includes status and privileges. If a returning employee is missing training or required events needed to qualify for their job position, employer must provide them a reasonable opportunity to fulfill the requirements.
Under California law, employers can under no circumstance discriminate against their employees due to their physical and/or mental disabilities. This includes women disabled because of their pregnancy.
California law requires that employers make reasonable accommodations for employees with disabilities. These reasonable accommodations are defined as adjustments to the employee’s work environment so they can be able to perform their job’s essential functions.
To be eligible for reasonable accommodations, the requirements are:
- Employers (with 5 or more employees) must be covered by anti-discrimination laws in California.
- Employee must be able to perform the essential functions of their job if they are given reasonable accommodation(s).
- The employee must have a physical or mental disability that impairs their ability to perform their essential job duties and functions.
- The reasonable accommodation would not cause the employer a hardship that is undue.
Disabilities and Conditions That Are Covered
Physical disabilities are defined as any bodily condition, disfigurement that is cosmetic, and/or anatomical loss that affects a person’s body system and limits their activity. An employee can prove that they suffer a physical disability by showing:
- Physical Impairment: Anatomical loss, physiological diseases, disorders, conditions, and/or cosmetic disfigurement.
- Major Bodily System: Physical impairments affection one of the major systems including neurological, immunological, musculoskeletal, special sense organs, respiratory, speech organs, cardiovascular, reproductive, digestive, hemic and lymphatic, skin, and endocrine.
- Life Activity: The physical condition is limiting one’s major life activity or making it difficult to achieve the activity. The activity includes normal social activity such as walking, eating, or sleeping.
The physical disability can be proved by a worker if they:
- Have health impairments that require special education or such related services.
- Employer has a mistaken belief that the worker has or had a physical disability.
- The worker has a history or medical record showing disease, a condition, anatomical loss, health impairment, or cosmetic disfigurement.
California law recognizes certain conditions are physical disabilities: Deafness, blindness, cerebral palsy, mobile impairments, requiring use of a wheelchair, missing limbs, and or chronic/ episodic conditions (HIV/AIDS, hepatitis, epilepsy, diabetes, etc..).
An employee’s disability does not qualify if their condition is mild and/or temporary. Such mild conditions include: common cold, sprain, muscle ache, bruising, soreness, headaches, cuts, seasonal flu, and minor/ non-chronic gastrointestinal disorders.
In the context of pregnancy and childbirth, there can be a physiological effect on a woman’s hormones. A mental disability can be limiting to major life activity and an employer cannot discriminate against the employee’s mental disability.
California law qualifies metal disabilities that include emotional and mental illnesses, intellectual. Cognitive disabilities, schizophrenia, clinical depression, bipolar disorder, autism spectrum disorders, PTSD, and OCD.
General Reasonable Accommodations
As a requirement, employers must consider “any and all” reasonable accommodations, unless they create an undue hardship. They must also consider an employee’s preference in their decision of which kind of accommodation to receive, even if employers have discretion in the choosing reasonable and effective accommodations.
Accommodations will vary from job to job depending on how to make the existing environment accessible to disabled individuals. The accommodation can vary from job restructuring, reassignment to a vacant position, changes to when tasks are to be completed and how the functions are performed.
Yet, an employer is NOT required to consider accommodations if it would present the employee from performing the job’s essential functions, or to accommodate disabilities that could or would endanger the health of the employee and their coworkers.
Employers may permit employees to take a leave for treatment and recovery instead.
What Makes Job Functions “Essential”?
In the state of California, an employer is permitted to terminate an employee if they are not able to perform their job’s essential functions, even with a reasonable accommodation in place. California considers a job function to be essential if:
- The employee’s position exists solely to perform that certain function.
- The employee was specifically hired by employer due to their skill or expert ability to perform the specialized function.
- Employer has a limited number of workers, and the job function cannot be distributed among them.
Some essential functions of the job are considered as marginal functions, by the courts. Marginal functions are those jobs that can be performed by another different employee or performed in a different way. If it is not necessary to hire another person to perform a job function that the employee cannot perform, then it is a marginal function.
In the eyes of the court, the burden is on the employee and they must prove that they can perform their job’s essential functions if reasonable accommodation is provided by employer.
What Is An “Undue” Hardship?
When providing the reasonable accommodations for an employee’s disability, the hardship suffered by employer must be undue.
An employer’s undue hardship is any action that requires significant difficulty and expense on the employer’s part. The types of factors and difficulties that the courts consider to determine if an employee’s accommodation will cause an undue hardship are:
- The employer’s financial resources and position.
- Overall size of the business.
- The nature and the cost of the accommodation needed by employee.
- The impact of said accommodation on the employer’s business operations.
The employer is required by law to engage in interactive process with the employees, an informal process to determine what reasonable accommodations are available. This process is done with the employee or with the employee’s employment attorney.
An employer violates the law if they do not engage in the process in a timely manner nor in good faith. In the process, the employer can request medical information to confirm the employee’s existing disability and keep said information confidential. Employees are required to submit medical documents stating the need for continued accommodations on a yearly basis if their disability lasts longer than a year.
The Right to Pay and Benefits During Maternity Leave
Employees have the right to take maternity leave, and in some cases in California, the employee may have the right to paid maternity leave.
By law, employers must maintain an employee’s medical benefits during both pregnancy disability leave and family leaves. An employer take away an employee’s medical benefits for taking maternity leave, and in fact, California makes it unlawful to impose new requirements for a woman to receive benefits during or when returning from pregnancy disability leave.
California’s State Disability Insurance (SDI)
An employee can receive state disability insurance (SDI) during the time of disability due to pregnancy, to pay a portion of their usual wages while they are temporarily disabled. The SDI benefit in 2020 ranged from $194.91 to $1,299.43 per week.
To be eligible, an employee must have paid $300 into the SDI fund 5-18 months before their claim started. The SDI benefit program is only applicable if the employee has a short-term type of disability due to pregnancy and/or childbirth.
California’s Fund for Paid Family Leave
The Paid Family Leave Act in California give eligible employee the right to receive a partial pay during their time off to bond with their new child within the first year of their arrival, even if the employee is not disabled by the pregnancy or childbirth. As of 2020, eligible employees could receive at most $1,300 a week for up to 6 weeks in the one-year period.
Using Accrued Paid Time Off & Temporary Disability Leave During Maternity Leave
Employees have the right to use any vacation, sick, paid time off pay that they have accrued with employer during maternity leave. An employer may also require the employee to use that time if an employee takes family leave.
There are exceptions and workplace policies vary when it comes to being forced to use accrued time off during maternity leave. For example, during pregnancy disability leave, an employee can be forced to use her accrued sick leave but other time off such as vacation and personal time off can be used at her discretion.
In California, the employer is not required to pay an employee during their pregnancy disability leave. But that may not be the case if the employer has voluntarily provided pay for other types of temporary disability leave. If the employer is paying employees who are on temporary disability leave unrelated to pregnancy or birth, then they would be obligated to pay employees during all/part of their maternity leave.
Requesting Maternity Leave
When an employee decides it is time and wishes to take maternity leave, they must provide a letter for their employer giving a reasonable request and notice of their leave. The letter must include the anticipated time in which the leave will be taken, the expected duration of their leave, and all sufficient facts that will make the employer aware of the employee’s need for family leave/pregnancy disability leave under the law.
Although requests for maternity leave can be made verbally, it is best to put it in writing and keep copy for the employee’s records in case of any dispute later on.
The request and notice for a foreseeable need for maternity leave must be given to employers at least 30 days before the leave is set to start.
If the need for maternity leave is unexpected or sudden, then notice must be given to employer by employee as soon as possible.
Covered employers CANNOT deny employees their leave. But employers may require from employees to provide medical documentation and certification from a health care provider verifying the employee’s disability due to pregnancy, childbirth, and medical condition that will require the leave.
When Requesting Leave as A Reasonable Accommodation
For an employee to be entitled to disability leave in the form of a reasonable accommodation, it is important an employer know about the employee’s disability by:
- The employee telling their employer of their condition.
- An employer becoming aware of the employee’s condition through a third party or by observation.
The employer must be aware of the employee’s existing condition and its impact on their employee’s work. The employer must be made ‘on notice’ of the disability by the employee and their need for accommodation. The employee may initiate the interactive process to determine an accommodation appropriate to their needs.
We can all agree that any type of discrimination in the workplace is wrong and must not be tolerated by anyone. The state of California agrees and holds laws against discrimination in the workplace, and it prohibits discrimination against a woman due to their pregnancy.
Examples of unlawful pregnancy discrimination include:
- Refusing to hire a woman for the fact that she is pregnant or may become pregnant in the future.
- A termination or demotion of a female worker due to their medical condition relating to pregnancy.
- Denying a woman time off for their pregnancy, childbirth, and/or pregnancy related medical condition.
- Denying and refusing reasonable accommodations for a woman’s pregnancy related disabilities.
- Discrimination against a woman for their need to breastfeed, pump, or for other treatment of medical conditions of breastfeeding.
Facts (elements) that must be proven to prove that an employer unlawfully discriminated against an employee are:
- The employer had t be an entity that was covered by pregnancy discrimination laws.
- The employer took a negative employment action against an employee, such as: refusing to hire, promote, or terminating them.
- The employee or job applicant’s pregnancy/ pregnancy-related disability/ability to become pregnant was a motivating reason for the employer’s negative employment action.
- The employee or job applicant suffered harm because of the employer’s negative action.
Employers Being Held Responsible
Employers should be held responsible for all unlawful practices and actions they have taken; this is including being held accountable for committing unlawful pregnancy discrimination.
Does California’s anti-discrimination law apply to them? If an employer falls under one of the categories below, then yes.
- Employer is a person or business that employs 5 or more people.
- Employer is a person or business that ats as an agent of a covered employer.
- Employer is a state or local government entity.
Religious nonprofit associations are not considered employers; therefore, they are not subject to most of California’s anti-discrimination laws.
Also, only actual employers are liable for actions involving pregnancy discrimination, not managers or supervisors. But supervisors, managers, and coworkers can be held accountable for actions involving pregnancy harassment.
Only certain types of employees can be protected from employer’s discriminatory actions under California law. These types of employees are:
Traditional Employees: Employees who the employer has agreed to hire to work under their direction and control.
Job Applicants: Those while file a written application to work for an employer. An applicant can still express a desire to be considered for employment by employer, even if an employer has not provided a written form of application for them. But the anti-discrimination protection in California does not protect those applicants that are under qualified and which the employer rejects.
Unpaid Interns: As of 2015 in California, the law states that unpaid interns must be treated the same as regular employees when it comes to pregnancy discrimination.
Temporary Employees: “Temp” workers can be hired through an agency that assigns them to work for an employer. Both the temp agency and the employer can be held accountable for any unlawful pregnancy discrimination.
Prohibited Forms of Discrimination
When an employee experiences pregnancy discrimination in the workplace, they are being treated differently due to their pregnancy and/or childbirth regarding their:
- Employment privileges and terms.
- Work conditions.
- Job tasks and assignments.
These unlawful forms of pregnancy discrimination can occur at any time when an employer:
- Is hiring or creating recruiting materials that can be discriminatory.
- Considering promotions of employees.
- Is determining and considering raises.
- Is determining lay offs or the termination of their employees.
- Considers training opportunities.
- Is deciding whether to permit leave time for employees.
- Is determining employee benefits.
What To Do If an Employer Violates Maternity Leave Rights
California laws regarding the legal rights of employees are made very clear, but unfortunately there are still employers that choose to violate the rights of their employees.
If an employer violates the maternity leave rights of an employee, that employee can choose to:
- Try to resolve the issue informally with their employer.
- Make an administrative claim and seek damages.
- File a lawsuit in court against the employer.
By doing any of these actions, an employee could be entitled to punitive or compensatory damages, and/or the right to be reinstated to their previous job. An employee should best discuss these options with an employment attorney.
Will An Employee Need a Lawyer?
It is not a requirement for employees to have a lawyer in order to file a claim against their employer, but it is most recommended as employment attorneys are most familiar with legal procedures in these disputes.
Experienced employment lawyers can assist with:
- Collecting all necessary and legally relevant information.
- Applying the law to all the evidence and facts.
- Avoiding any downfalls or missteps that those unfamiliar with the law could cross.
- Maximizing the damages and compensation an employee could receive.
Most attorneys may be willing to do work and provide legal services with no upfront costs from the employee and on a contingency fee basis. Instead, they take a percentage of what is won at the end of the case. Although some attorneys require employees to pay any legal fees at the end of the case, there are cases when the employer is held responsible for those expenses in the end.
State Law Claims
When an employee decides that they want to sue their employer for violation of maternity leave laws in California, the first step is to file a complaint with California’s Department of Fair Employment and Housing (DFEH) before filing any lawsuit with the courts.
Once the complaint is filed with the DFEH, the employee will be provided a Right-to-Sue letter, and only then will they be able to bring a lawsuit in court.
Statute of Limitations
When it comes to bringing a claim under California state law, it is important that they file a complaint against their employer with the DFEH no later than one year from the date of the alleged violation.
Once the employee is provided a Right-to-Sue letter from the DFEH, they have one year from the date that the letter is issued to file a lawsuit against the employer in civil court.
As an employee is pursuing a claim against the employer, it is important for them to remember that their employer may not wrongfully terminate them or take any adverse action against them for opposing or take against the employer’s law violation. Any type of retaliation for bringing forward a claim is prohibited.
An employer may not retaliate against employees who file a complaint after suffering from their employer’s violation of maternity leave laws.
Employees should contact an employment attorney to assist and guide them every step of the way as they pursue claims against their employer. No employee should go through this experience alone.