California Pregnancy Disability Leave Law (“PDLL”)

If an employee is “disabled by pregnancy, childbirth, or related medical conditions,” the employee is entitled under PDLL “to take a leave for a reasonable period of time not to exceed four months and thereafter return to work.” Cal Gov Code § 12945(a). A “related medical condition” is defined as “any medically recognized physical or mental condition that is related to pregnancy or childbirth…” 2 CCR 7291.2.

If an employer grants an employee pregnancy disability leave or transfer, “the employer shall guarantee to reinstate the employee to the same position, or to a comparable position.” If the employee requests the guarantee in writing, the employer must provide the writing to the employee. It is unlawful for an employer to refuse to reinstate the employee, unless an exception applies. 2 CCR 7291.9.

The employee does need to take the four months leave all at one or in one block, the employee’s “leave may be taken intermittently or on a reduced work schedule when medically advisable, as determined by the health care provider of the employee.” 2 CCR 7291.7. For example the employee can use the leave to work only three or four days a week and the days the employee does not work will be subtracted from the overall four month maximum allowed.

An employer must also provide “reasonable accommodation for an employee for conditions related to pregnancy, childbirth, or related medical conditions, if she so requests, with the advice of her health care provider.” 2 CCR 7291.6.

If an employee wishes to request PDLL leave or transfer from her employer, the employee must give either written or verbal notice “sufficient to make the employer aware that the employee needs a pregnancy disability leave or transfer, and the anticipated timing and duration of the leave or transfer.” 2 CCR 7291.10(a).

California Family Rights Act (“CFRA”) / Family and Medical Leave Act (“FMLA”):

An employee under CFRA / FMLA is entitled to “a total of 12 workweeks of leave during any 12-month period” for one or more of the following reasons:

• Birth of a son or daughter of the employee, in order to care for the son or daughter.
• To care for a spouse, son, daughter, or parent of the employee if the spouse, son, daughter, or parent has a serious health condition. 29 USCS § 2612.
  “To care for” includes physical and psychological care. 29 CFR 825.124(a). Examples include situations where the family member is:
  • “unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor,”
  • “providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care,”
  • and when employee needs to be a “substitute for others who normally care for the family member or covered service member, or to make arrangements for changes in care, such as transfer to a nursing home.” 29 CFR 825.124.

• The employee is unable to perform the functions of their job because of a serious health condition. 29 USCS § 2612(a)(1)(A)-(D). Serious health condition under FMLA is defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, (staying overnight or longer at a hospital, hospice or residential medical care facility) or continuing treatment by a health care provider.” 29 USCS § 2611(11). Examples include:
• A mother is entitled to leave for incapacity (being unable to work, attend school or perform other regular daily activity) because of her pregnancy, for prenatal care, or for a serious health condition after the birth of the child; (29 CFR 825.120)
• A husband is entitled to leave to care for his pregnant spouse if she is incapacitated or if the leave is needed to care for her during her prenatal care, or if it is needed to care for his pregnant spouse after the birth of the child if the spouse has a serious health condition; (29 CFR 825.120)

Under FMLA an employee is not required to take their leave of absence all at one time. The employee is allowed to take the leave “intermittently or on a reduced leave schedule. Intermittent leave is leave taken “in separate blocks of time due to a single qualifying reason.” A reduced leave schedule is “a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.” 29 CFR 825.202(a).

For an employee to receive leave covered under FMLA from his or her employer, the employee must give the employer notice, either verbal or written. 29 CFR 825.302. The employee’s notice must let the employee know the reason for the leave that is covered by FMLA (serious health condition; birth of child or adoption or foster care of child; taking care of spouse, child, or parent with serious health condition.; or emergency because child, spouse, or parent is on active duty with Armed Forces.). 29 CFR 825.302. The notice must also contain the timing and duration the employee anticipates the leave to take up. 29 CFR 825.302.

When an employee comes back from FMLA leave they are entitled to be reinstated by the employer to their same position or an equivalent position. 29 USCS § 2614. The equivalent position is to have “equivalent employment benefits, pay, and other terms and conditions of employment.” 29 USCS § 2614.

Pregnancy Discrimination Act (Title VII) (“PDA”)

Prohibits discrimination on the basis of “pregnancy, childbirth, or related medical conditions.” 42 U.S.C.S. § 2000(e)(k). “[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C.S. § 2000(e)(k). Written or unwritten employment policies and practices involving matters “such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or disability insurance or sick leave plan, formal or informal” shall be applied on the same terms and condition to employees with disabilities due to pregnancy, childbirth or related medical conditions as are applied to employees with other disabilities. 29 CFR 1604.10.

“As a general matter, a woman's medical condition rendering her unable to become pregnant naturally is a medical condition related to pregnancy and childbirth for purposes of the Pregnancy Discrimination Act.” Pacourek v. Inland Steel Co., (1994) 858 F. Supp. 1393, 1403.

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If you have suffered discrimination at a workplace due to your pregnancy or motherhood, be sure to contact the leading pregnancy discrimination attorneys working at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.