Pregnancy and childbirth should be, and often are, joyous and uniquely significant experiences. Unfortunately, many female workers find that a pregnancy in the workplace extremely stressful, due to conflicts between their work requirements and the health of their pregnancy and their newborn. Fortunately, there are a number of laws in California that protect women (as well as men whose wives have given birth and want to spend time with their newborn) during pregnancy and after the birth of their child.
Health insurance while on leave
If an employer provides health benefits under any group health plan, the employer is obligated to maintain and continue to pay for health insurance coverage for up to four months while a woman is out on pregnancy disability leave.
Use of sick leave, vacation leave, or other paid leave while on pregnancy disability leave
An employer may require an employee to use any of her accrued sick leave during the otherwise unpaid portion of her pregnancy leave. Also, a woman may request the use of her sick leave, vacation leave, and/or any other leave credits she has in order to receive compensation during the otherwise unpaid portion of her pregnancy disability leave.
Adding sick leave, vacation leave, or other paid leave to the four-month pregnancy disability leave.
Extending the four-month pregnancy disability leave by adding sick leave, vacation leave, and/or any other leave credits to the pregnancy disability leave is at the discretion of the employer. Such requests should be answered in the same manner as similar requests for non-pregnant employees. An employee may, however, be entitled to additional leave under CFRA to bond with the baby, bond with an adopted child, or care for a parent, spouse, or child with a serious health condition.
Pregnancy Disability Leave
An employer must provide up to four months disability leave for a woman who is disabled due to pregnancy, childbirth, or a related medical condition. However, if an employer provides more than four months of leave for other types of temporary disabilities, the same leave must be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition.
Eligibility for pregnancy leave
A woman who works for a covered employer is eligible for pregnancy disability leave regardless of the length of time she has worked for the employer. Further, an employee does not have to work full-time in order to be eligible.
Conditions for which a leave may be taken
Pregnancy leave is required only when a woman is actually disabled by her pregnancy, childbirth, or a related medical condition. This includes time off needed for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, and any related medical condition. A woman does not have to be completely incapacitated or confined to her bed to qualify as being disabled by pregnancy. However, as a general rule, a woman must be unable to perform one or more essential functions of her job without undue risk to herself or to other persons or without undue risk to successful completion of her pregnancy. It is the medical opinion of the woman’s physician or health care provider that determines whether she is disabled by pregnancy or a related medical condition.
Leave does not have to be taken at one time
Leave taken for pregnancy disability does not have to be taken at one time. Leave can be taken before or after birth or at any period of time the woman is physically unable to work because of the pregnancy or pregnancy-related condition. Periods of leave may be totaled in computing the four months of leave.
Periodic absences for pregnancy-related illnesses
Periodic absences for pregnancy-related illness of limited duration taken prior to an actual leave may be subtracted from the four months of disability leave for pregnancy. However, if the employer does not subtract intermittent leave from other types of disability leave, the employer may not subtract from pregnancy disability leave.
Pregnancy disability leave and California Family Rights Act (CFRA) leave
A woman who takes a pregnancy disability leave is also entitled to take a CFRA leave if she meets the eligibility requirements for a CFRA leave. That means that a woman who is eligible for CFRA leave could take up to four months of pregnancy disability leave for her pregnancy disability and could also be entitled to up to 12 weeks of CFRA leave to bond with the baby, or for another CFRA qualifying event such as to bond with an adopted child, or to care for a parent, spouse or child with a serious health condition.
Intermittent leave or reduced work schedule
If a woman’s health care provider indicates that intermittent leave or a reduced work schedule is medically advisable and foreseeable based on planned medical treatment, an employer may require the employee to transfer to an alternative position. The alternative position must better accommodate recurring periods of leave than does the employee’s regular job. Although the alternative position need not have equivalent duties, it must have an equivalent rate of pay and benefits and the employee must be qualified for the position. Transfer to an alternative position may include altering an existing position to accommodate the employee’s need for intermittent leave or a reduced work schedule.
Employers are required to provide reasonable accommodation to a pregnant employee when requested, with the advice of her health care provider, related to her pregnancy, childbirth, or related medical condition.
An employee must give advance notice prior to taking a pregnancy disability leave or for requesting to transfer to a less strenuous or hazardous position
If possible, a woman who is taking a pregnancy disability leave must provide her employer at least 30 days advance notice before pregnancy disability or transfer begins. This notice should include the date the leave will commence and the estimated duration of the leave. If 30 days advance notice is not possible due to lack of knowledge of when leave or transfer will begin, because of a change in circumstance or because of a medical emergency, notice must be given as soon as practical. Terms of the leave may be modified as a woman’s changing medical condition dictates. If a woman desires to return earlier than agreed, an employer must reinstate her within two business days of her notice.
An employer is required to advise employees of their rights under the pregnancy laws
All employers are required to provide notice to their employees of the right to request pregnancy disability leave or transfer to a less strenuous or hazardous position. This notice should be posted in a conspicuous place where employees tend to congregate. Employers who have employee handbooks are required to include information about pregnancy leave rights in their handbooks. For those employers who are subject to CFRA, they may include both pregnancy disability leave and CFRA leave requirements in a single notice.
Medical verification of inability to work
An employer may require an employee to obtain medical verification of her inability to work because of pregnancy only if the employer requires such verification from other temporarily disabled employees. However, an employer may not require verification from other than the pregnant employee’s own doctor or health care provider.
An employer may require medical verification that continuing work will not be hazardous to the pregnant woman as long as it is done in the same manner as verification that might be required for other types of disabilities.
Medical verification for reasonable accommodation requests
Employers may require an employee to obtain medical verification of the need for reasonable accommodation from the employee’s own health care provider, related to her pregnancy, childbirth, or related medical condition.
Return Rights After a Pregnancy Leave
A woman who takes a pregnancy disability leave and returns within the four-month period is guaranteed the right to return to her same position. An employer can reinstate a woman who takes a leave to a comparable position only if her same position is no longer available, such as in a layoff due to plant closure. If that is the case, the employer should offer a position that is comparable in terms of pay, location, job content, and promotional opportunities unless the employer can prove that no comparable position exists. An employer cannot refuse to return a woman who has taken a pregnancy leave to her original position if they like her temporary replacement better or if while she was out on leave her employer identified performance deficiencies that existed prior to her leave.
Leaves that extend beyond the four months
If the woman takes a CFRA leave for bonding with the baby, for bonding with an adopted child, or to care for a parent, child or spouse with a serious health condition, in addition to her pregnancy disability leave, she has a right to return to either her original job or to a comparable job. However, if the pregnancy disability extends beyond the four months or the woman takes an elective leave that is not a CFRA leave, a woman is entitled to the same rights given to other employees who have taken leaves for reasons not related to pregnancy.
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