Maternity Leave

Cheryl Cloes

I work in California. We recently hired an employee (March 2001) who one month after her hire announced she was pregnant. We of course are happy for her, and happy with her work product. I am uncertain however what the California law states as far as maternity leave rights for this employee. Does anyone know what the California law states? Can you tell me where to find it? I tried to log onto leginfo.ca.gov/calaw.html but it is so voluminous I was lost. Any help would be appreciated.

Thanks!

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 06-14-01 AT 02:26PM (CST)[/font][p]The applicable law for this new employee is the California Pregnancy Disability Leave Act. It applies to California employers of five or more employees. It has no minimum employment service requirment like FMLA and CFRA. Thus, if you employ five or more in California, the "pregnant" employee qualifies even though she may not have worked for you for a year or even 1,250 hours (again, there is NO minimum service or hours requirement). You can require a doctor's certification and leave is up to four months (though it doesn't have to be take at one time, depending on doctor's certification).

You can get more information at the California Fair Employment and Housing Agency website. "www.dfeh.ca.gov" Click on "Table of Contents" and scroll down to Pregnancy Discrimination.

Gillian

Further, our Pregnancy Disability Leave regs. require reinstatement to the same job unless the employee would not otherwise be hired in the same position for business reasons (layoff for example)or if the position cannot be left open or filled by a temporary employee for safety or other business efficiency reasons. You might as well operated under the assumption that reinstatement to the same job is required - that's what everyone else does. Also, we are required to accomodate to the persons disability if the health care provider certifies to its necessity, including transferring the person to a less strenuous job, if that can be reasonably accomodated by the employer.

This is not a sales pitch for the California Chamber of Commerce (Sacramento) but they publish excellent material on workplace regulations and the material is written in laypersons language. The 2001 California Labor Law Digest can be very helpful.

System

California law requires that employers with five or more employees provide up to four months of leave for the period of time that the employee is "actually disabled" by pregnancy. There is no eligibility requirement for this type of leave (e.g., length of service, etc.). You may require medical certification before granting such leave (so long as you request such certification from other similarly situated employees). You are not required to provide this as paid leave unless you pay other workers on temporary disability leaves. You may require the workers to use any accrued sick time during unpaid portions of pregnancy disability leave.

Employers with 50 or more employees should note that workers employed for 12 months who have worked at least 1,250 hours may be eligible for an additional 12 weeks of leave under the California Family Rights Act (CFRA). The CFRA provided that each spouse is entitled to 12 weeks of leave after the birth of a child for bonding purposes. Therefore, a covered employee may be eligible for up to seven months of leave due to pregnancy by "stacking" pregnancy disability leave with bonding leave. Pregnancy disability leave may run concurrently with leave taken under the federal Family and Medical Leave Act (FMLA).

Generally, a worker must be reinstated to her original position. If this is not possible, employers should consult with counsel. Employers are also prohibited under the Fair Employment and Housing Act (FEHA) for refusing to temporarily transfer a pregnant employee to a less strenuous or hazardous position if so requested (with the advice of her physician) where that transfer can be reasonably accommodated. Employers should also be aware that new definition of disability under the FEHA (an impairment that merely "limits" a major life activity -- instead of "subtantially limits" as required under the Americans with Disabilities Act (ADA))may create additional liability for disability bias claims. To minimize your exposure to liability, it is prudent to work closely with counsel when making decisions that affect a pregnant worker.