['Discrimination']
['Pregnancy Discrimination']
04/26/2024
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Summary of differences between federal and state regulations
Employer defined
Any employer regularly employing five or more persons is covered. Employers include the state, other government bodies, and private employers. Also subject are labor organizations, employment agencies, and apprenticeship programs.
An exception to the five-employee minimum occurs when harassment is at issue. Every employer employing one or more persons or receiving the services of one or more independent contractor(s) is covered by the prohibition of harassment. Additionally, an employee is personally liable for any unlawful employment harassment of another employee.
Religious associations or religious corporations not organized for private profit may be exempt under certain circumstances. Employees of the federal government are protected from discrimination under federal laws.
Unlawful employment practices
The Fair Employment and Housing Act contains provisions relating to pregnancy discrimination similar to those under the federal Pregnancy Discrimination Act, including the employee’s right to return to the same or equivalent position. In addition to the pregnancy disability leave requirements, employers of fifty or more employees may have additional obligations under the California Family Rights Act (CFRA) or the federal Family Medical Leave Act (FMLA).
If a case is litigated before the Fair Employment and Housing Commission, employees may recover back pay, out-of-pocket losses, and up to $150,000 in combined emotional distress damages per respondent. If the case is litigated in civil court, the employee may recover unlimited monetary damages, including back pay, emotional distress damages, punitive damages, any other out-of-pocket losses, and attorney's fees and costs, including expert witness fees.
Leave for pregnancy
An employer must provide up to four months disability leave for pregnant women. If more than four months of leave is provided 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.
Pregnancy leave is required only when a woman is actually disabled. 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 need not be completely incapacitated or confined to her bed to qualify as disabled. As a general rule, a woman must be unable to perform one or more essential functions of her job without undue risk to herself, successful completion of her pregnancy, or to other persons. The medical opinion of the woman’s physician or her health-care provider will determine whether she is disabled by pregnancy or a related medical condition.
The four months of disability leave do 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 pregnancy or a pregnancy related condition. Periods of leave may be totaled in computing the four months required.
Periodic absences for a pregnancy-related illness of limited duration taken prior to an actual leave can be subtracted from the four months of pregnancy disability leave to which a woman is entitled. However, if the employer does not subtract intermittent leave from other types of disability leave, it may not subtract from pregnancy leave.
Pregnancy disability leave can be combined with other forms of leave. Employees are entitled to take pregnancy disability leave in addition to any entitlement they might have to leave under CFRA. An employee could take four months pregnancy disability leave for her disability and be entitled to 12 weeks CFRA leave to bond with the baby, to bond with an adopted child, or care for a parent, spouse, or child with a serious health condition.
Probationary employees are entitled to pregnancy leave even when other temporarily disabled probationary employees receive none. However, the employer is not required to pay her benefits while she is on leave if other temporarily disabled probationary employees receive no benefits. An employer may, however, be required to pay benefits if the pregnancy leave is taken concurrently with leave taken under FMLA.
A pregnant woman can not be terminated for excessive absenteeism, as long as the absenteeism, intermittent leave, or leave on a reduced work schedule is related to her pregnancy, and time of absence is counted against but does not exceed the four-month leave requirement.
Reasonable accommodations
If an employee requests reasonable accommodation upon the advice of her health-care provider, an employer must provide reasonable accommodation for an employee for conditions related to pregnancy, childbirth or related medical conditions.
Employers are required to transfer employees to less hazardous or strenuous assignments if an employee’s health-care provider certifies the transfer is medically advisable and the request can be reasonably accommodated by the employer. An employer is not, however, required to create a position or displace another employee.
If the employee’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 temporarily transfer to an available alternative position. However, that position must better accommodate recurring periods of leave than 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.
Insurance
An employer is not obligated to continue health insurance coverage under California pregnancy disability provisions unless the employer provides health insurance for employees on other forms of disability leave. If an employee is entitled to a disability leave under FMLA, an employer might be required to pay for health insurance benefits up to 12 weeks of leave.
Employers with fewer than 15 employees are not required to provide specialized insurance coverage for pregnancy even if insurance is provided for other types of conditions or disabilities. However, employers with 15 or more employees are required to provide health insurance coverage for pregnancy on the same terms as it is provided for other types of conditions or disabilities. Failure to do so may be considered sex discrimination pursuant to section 12940(a) of the Fair Employment and Housing Act.
Sick leave
An employer may require an employee to use her accrued sick leave during the otherwise unpaid portion of her pregnancy disability leave. A woman can elect to use her sick leave and/or vacation leave during the disability period. She may use whatever leave credits she has to receive compensation during an otherwise unpaid portion of her pregnancy disability leave.
Sick leave and/or vacation credits can be added to the four months disability leave, thereby extending the time away from work, at the discretion of the employer. Such requests should be answered in the same manner as similar requests by 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.
Medical verification
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 can 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 required for other types of disabilities.
Notice to employer
If possible, an employee must provide her employer at least 30 days advance notice before pregnancy disability leave or transfer begins, the date the leave will commence, and the estimated duration of the leave. If 30 days advance notice is not possible, notice must be given as soon as practical. Terms of 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.
Posting
All employers must provide notice to their employees of the right to request pregnancy disability leave or transfer and post an appropriate notice 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 each time the handbooks are printed or updated. Those employers subject to CFRA may include both pregnancy disability leave and CFRA leave requirements in a single notice.
State
Contact
Department of Fair Employment and Housing, which prosecutes cases before the Fair Employment Housing Commission
Regulations
California Government Code Section 12940-12951
Federal
Contact
Equal Employment Opportunity Commission (EEOC)
Regulations
Pregnancy Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978)
29 CFR Parts 1604.10, Employment policies relating to pregnancy and childbirth.
Appendix A to Part 1604, Questions and Answers on the Pregnancy Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978)
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.