Private practice: Pregnancy and the workplace … what are your rights?
Do you believe that you have been a victim of pregnancy to discrimination? Do you believe that your employer is treating you unfairly due to pregnancy and childbirth related to medical complications? Are you aware that if your employer has treated you unfairly due to you being pregnant the employer may be in violation of California law? As an attorney with nearly 20 years experience I am often asked various questions regarding employee rights in the workplace. An individual who runs a small business recently asked me about her rights regarding the hiring of a pregnant employee. She knew that she was required to provide the employee with pregnancy leave when the baby arrived, but she was uncertain as to what else was required of her and her company. This was her first pregnant employee and she wanted to make sure she did everything correctly.
It is illegal for an employer to discriminate against a female employee because she is pregnant. State and Federal laws protect women against this form of discrimination in all aspects of employment, including interviewing, hiring, discharge and promoting. Discrimination based on pregnancy, childbirth, and related medical conditions, is also prohibited by California law. Employers must grant pregnant employees unpaid disability leave of up to four months for the time they are disabled due to pregnancy, childbirth, or related medical conditions. It is also unlawful to refuse a pregnant employees request for reasonable accommodation(s).
California Pregnancy Disability Leave Law
California subjects employers who have at least five full or part-time employees to the Pregnancy Disability Leave Laws (or “PDLL”). The PDLL is part of the California Fair Employment and Housing Act, and requires employers who employ five or more employees to provide employees who are disabled by their pregnancy a reasonable period of leave, not to exceed four months. The PDLL 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. Therefore, employers should make sure that they are doing everything necessary to assure that they are in compliance with California law. An employer is not required to pay wages to an employee taking PDLL leave, unless it has a policy of continuing the payment of wages for other types of temporary disability leaves. Generally, employees who are on pregnancy disability leave must be treated the same as employees on other types of disability leave in terms of pay, benefits, and other conditions of employment.
Eligibility For Pregnancy Leave
Unpaid maternity leave in California is a right. California’s law requiring employers to give maternity leave applies to all female employees no matter how long they have worked for the employer. That is, employers cannot require employees to earn maternity leave in any way before they become eligible for it. California requires an employer to provide all female employees with maternity leave immediately upon hiring. Indeed, the employer cannot place a length-of-service requirement on female employees before granting them time off for maternity leave. Also, an employee does not have to work full-time in order to be eligible.
Right to Reinstatement
When an employee’s pregnancy disability leave ends, the employer must return the employee to the same position as when her leave began. This is true unless (1) the job no longer exists due to legitimate business reasons unrelated to the employee taking a pregnancy disability leave; or (2) the means of preserving the job or duties for the employee (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the employer’s ability to operate the business safely and efficiently. If an employer cannot reinstate the employee to her exact same position, the employee must be returned to a “substantially similar” position.
Employers must maintain health benefits for an eligible female employee for the duration of the maternity leave, not to exceed four months over the course of a 12-month period. The coverage must be maintained at the same level and under the same conditions that coverage would have been afforded the employee had she continued her employment continuously for the duration of the leave.
Effect on Seniority and Benefits
An employee who takes pregnancy disability leave retains the status of employee during the time period of the leave. The leave does not constitute a break in service for purposes of longevity and/or seniority under any collective bargaining agreement or under any employee benefit plan. Benefits must be resumed upon the employee’s reinstatement in the same manner and at the same levels as provided when the leave began, without any new qualification period or physical exam.
Signs of Pregnancy Discrimination in the Workplace
Some of the most common signs of pregnancy discrimination in the workplace include:
- Terminate upon discovering that the employee is pregnant
- Demotion following maternity leave
- Termination following maternity leave
- Failure to accommodate for medical appointments
- Failure to accommodate for physician–ordered rest or breaks from work
- Refusal to observe medical restrictions ordered by a physician
- Refusal to accommodate requests for family leave during pregnancy
- Refusal to accommodate requests for family leave after pregnancy
- Reducing the mother’s hours or reassigning her to a different, unfavorable position during pregnancy or after she returns to work
Reginald Dunn is a private practice attorney with The Dunn Firm. For more information call (916) 671-6488 or e-mail [email protected]
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