Pregnancy Disability Leave
The Fair Employment and Housing Act (FEHA), enforced by the California Department of Fair Employment and Housing (DFEH), contains provisions guaranteeing leave for employees disabled by pregnancy, childbirth, or a related medical condition (Pregnancy Disability Leave or PDL). All employers must provide information about PDL to their employees and post information about pregnancy leave rights in a conspicuous place where employees tend to gather. A poster that meets this requirement is available on DFEH’s “Posters, Brochures and Fact Sheets” webpage (www.dfeh.ca.gov/Posters/). Employers who provide employee handbooks must include information about PDL in the handbook.
An employee disabled by pregnancy, childbirth, or a related medical condition is entitled to up to four months of disability leave per pregnancy. If the employer provides more than four months of leave for other types of temporary disabilities, the same leave must be made available to employees who are disabled due to pregnancy, childbirth, or a related medical condition.
Leave can be taken before and after birth during any period of time the employee is physically unable to work because of pregnancy or a pregnancy-related condition. All leave taken in connection with a specific pregnancy counts toward computing the four-month period.
PDL is available when an employee is actually disabled. This includes time off needed for prenatal or postnatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, loss or end of pregnancy, or any other related medical condition. PDL may be modified as an employee’s changing medical condition dictates.
PDL applies to all employers with five or more full or part-time employees. Other than having a qualifying pregnancy-related disability, there are no tenure, hours, other eligibility requirements, and full- and part-time employees are treated the same.
If possible, an employee must provide their employer with at least 30 days’ advance notice of the date for which the pregnancy disability leave is sought and the estimated duration of the leave. If 30 days’ advance notice is not possible due to a change in circumstances or a medical emergency, notice must be given as soon as practicable.
The employer may require written certification from the health-care provider of the employee seeking PDL stating the reasons for the leave and the probable duration of the condition. However, the health-care provider may not disclose the underlying diagnosis without the consent of the patient.
An employer may require an employee to use accrued sick leave during any unpaid portion of their pregnancy disability leave. The employee may also choose to use vacation leave or other accrued paid leave to receive compensation for which the employee is eligible, but an employer may not require an employee to use vacation leave or other accrued time off during PDL.
Employers must pay for the continuation of the employee's group health benefits if the employer normally pays for those benefits.
An employee who is disabled by pregnancy may qualify for State Disability Insurance wage replacement while the employee is unable to work. In a normal pregnancy, a worker will typically be disabled 4 weeks before the expected due date, and 6 weeks after for a vaginal birth or 8 weeks after for a cesarean section.
It is illegal for an employer to fire an employee because that employee is pregnant or taking pregnancy disability leave. Employers are required by law to reinstate an employee returning from PDL to the same position the employee had before taking leave, and an employee may request this guarantee in writing. In some situations, an employee may be reinstated to a position that is comparable (same tasks, skills, benefits, and pay) to the job they had before taking PDL.
If the reinstatement date differs from the original agreement, or if no agreement was made, an employer must reinstate the employee within two business days of being given notice that the employee intends to return. When two business days are not feasible, reinstatement must be made as soon as possible to expedite the employee’s return. However, pregnancy disability leave does not protect employees from employment actions not related to their pregnancy, such as layoffs.
In addition to PDL, the California Family Rights Act (CFRA) requires employers of five or more employees to provide up to 12 workweeks in a 12-month period of job-protected leave to employees for the birth, adoption, or foster care placement of their child, or for their own serious health condition or that of their child, parent, spouse, domestic partner, grandparent, grandchild, or sibling.
To be entitled to take leave under the CFRA, the employee must have more than 12 months of service with the employer, and have worked at least 1,250 hours in the 12-month period before the date they want to begin their leave. CFRA leave is not for pregnancy-related conditions, which are covered by PDL.
Employers may pay their employees while taking CFRA leave, but employers are not required to do so, unless the employee is taking accrued paid time-off while on CFRA leave. Employees taking CFRA leave may be eligible for California’s Paid Family Leave (PFL) program which provides benefits to individuals who need to take time off work to care for a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or domestic partner. Benefits are also available to parents who need time to bond with a new child entering their life either by birth, adoption, or foster care placement.
Sometimes employees affected by pregnancy, childbirth, or related medical condition are able to keep working with a reasonable accommodation. If such an employee requests a reasonable accommodation upon the advice of the employee’s health-care provider so that the employee can keep working, an employer must provide reasonable accommodation. For example, on the advice of a physician, an employee can request to transfer to a less strenuous or hazardous position or modified duties because of the employee’s pregnancy-related condition,
Q: What are the employer's obligation to accommodate the employee?
A: The employer has an obligation to provide the following:
reasonably accommodate the employee's medical needs related to pregnancy, childbirth, or related conditions (such as temporarily modifying the employee's work duties, providing the employee with a stool or chair, or allowing more frequent breaks);
Transfer the employee to a less strenuous or hazardous position (if one is available) or duties if medically needed because of the employee's pregnancy;
Provide the employee with pregnancy disability leave (PDL) of up to four months (the working days you normally would work in one-third of a year or 17 1/3 weeks) and return the employee to their same job when they are no longer disabled by their pregnancy or, in certain instances, to a comparable job. Taking PDL, however, does not protect the employee from non-leave related employment actions, such as a layoff;
Provide a reasonable amount of break time and use of a room or other location in close proximity to the employee’s work area to express breast milk in private; and
Never discriminate, harass, or retaliate on the basis of pregnancy.
Q: What are the employee's obligations to use PDL?
A: The following obligations are required of the employee regarding taking PDL:
Give the employer reasonable notice. To receive reasonable accommodation, obtain a transfer, or take PDL, the employee must give the employer sufficient notice for the employer to make appropriate plans. Sufficient notice means 30 days advance notice if the need for the reasonable accommodation, transfer, or PDL is foreseeable, or as soon as practicable if the need is an emergency or unforeseeable.
Provide a written medical certification from the employee's health care provider. Except in a medical emergency where there is no time to obtain it, the employer may require the employee to supply a written medical certification from their health care provider of the medical need for the employee's reasonable accommodation, transfer or PDL. If the need is an emergency or unforeseeable, the must provide this certification within the time frame the employer requests, unless it is not practicable for the employee to do so under the circumstances despite their diligent, good faith efforts. The employer must provide at least 15 calendar days for the employee to submit the certification. See if the employer has a copy of a medical certification form to give to the employee's health care provider to complete.
Please note that if the employee fails to give the employer reasonable advance notice or, if the employer requires it, written medical certification of the employee's medical need, the employer may be justified in delaying the employee's reasonable accommodation, transfer, or PDL.
Q: How much time off can an employee take under PDL?
A: PDL is not for an automatic period of time, but for the period of time that the employee is disabled by pregnancy, childbirth, or related medical condition. The health care provider determines how much time the employee will need.
Once the employer has been informed that the employee needs to take PDL, the employer must guarantee in writing that the employee can return to work in their same or a comparable position if the employee requests a written guarantee. The employer may require the employee to submit written medical certification from their health care provider substantiating the need for the leave.
PDL may include, but is not limited to, additional or more frequent breaks, time for prenatal or postnatal medical appointments, and doctor-ordered bed rest, and covers conditions such as severe morning sickness, gestational diabetes, pregnancy-induced hyper-tension, preeclampsia, recovery from childbirth or loss or end of pregnancy, and/or post-partum depression.
PDL does not need to be taken all at once but can be taken on an as-needed basis as required by the employee's health care provider, including intermittent leave or a reduced work schedule.
The leave will be paid or unpaid depending on the employer’s policy for other medical leaves. The employee may also be eligible for state disability insurance or Paid Family Leave (PFL), administered by the California Employment Development Department.
The employee can use, at their discretion, any vacation or other paid time off during their PDL. The employer may require or the employee may choose to use any available sick leave during the PDL.
The employer is required to continue the employee's group health coverage during the PDL at the same level and under the same conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Taking PDL may impact certain of the employee's benefits and their seniority date; please contact the employer for details.
Q: What if the employee qualifies for PDL, CFRA, NPLA, and FMLA?
A: California employees may be entitled to take leave under each law—PDL, CFRA, NPLA, and FMLA—if they qualify. PDL and FMLA may run at the same time. CFRA will be counted separately from PDL. CFRA will also be counted separately from FMLA taken for pregnancy disability, childbirth, or related medical conditions. PDL and FMLA run at the same time because both cover pregnancy-related medical conditions. NPLA is not available to employees who qualify for FMLA and CFRA. Employees will receive an additional 12 weeks of bonding leave under CFRA or NPLA depending on which leave they qualify for.
Q: Are transgender employees who have a pregnancy disability eligible for PDL and other reasonable accommodations?
A: Yes. Transgender employees who have pregnancy disabilities are entitled to all the same rights and accommodations afforded any other employee with pregnancy-related conditions.
Q: Can California employees be fired or otherwise punished for taking PDL or needing reasonable accommodation?
A: No. employers are not prohibited to terminate, punish, refuse to hire, harass, or discriminate against an employee for taking PDL or reasonable accommodation for the pregnancy-related condition.
If the employee has been subjected to discrimination, harassment, or retaliation at work, or have been improperly denied PDL or CFRA leave, they can file a complaint with DFEH.
Q: Can a California Employer require its employees to take PDL?
A: No. California employers may not force employees to take PDL. Even if an employee chooses to not take PDL, the employee is still entitled to reasonable accommodations for her pregnancy-related condition. For example, the employee’s physician may recommend that the employee spend less time than her normal 40 hours per week at work during her pregnancy. If the employee is able to complete essential functions of the job from home, she may request telework for one day per week as a reasonable accommodation to save her PDL for after childbirth. The employer is required to grant this reasonable accommodation and may not require her to use PDL instead of teleworking.
If you have any further questions about California’s Pregnancy Disability Leave, or need additional information, please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.
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