Pregnancy Leave Rights, Pregnancy Discrimination and Wrong Termination
Discrimination on the basis of pregnancy, childbirth, or related medical condition is equivalent to sex discrimination under California FEHA (Fair Employment and Housing Act). The most common type of discrimination against pregnant employees is termination. Of course, an employee must be able to show, among other things, that the employer knew that she was pregnant before making the decision to terminate her employment, and that pregnancy was the reason or at least one of the reasons for termination. Like with age discrimination cases, one of the more common reasons that an employer will try to get rid of a pregnant employee is their concern about that employee's unavailability due to medical reason or childcare and all the potential personal time she would need off because of being pregnant and having a newborn, that she otherwise wouldn't need.
Pregnancy Leave Rights (FMLA, CFRA & PDLL)
One of the most important laws that protect employees disabled by pregnancy is PDLL (Pregnancy Disability Leave Law. This is because in order to qualify for PDLL leave, an employer needs only to have five or more employees, and unlike with FMLA, there is no length of service requirement in order to be eligible for this type of pregnancy leave. To be entitled to PDLL leave by reason of pregnancy disability, the worker needs to show that she is unable to work or perform her essential job functions or she is unable to do so without undue risk to herself or the successful completion of her pregnancy.
One of the most common questions that pregnant workers have is about the interplay of FMLA, CFRA and PDLL. In reality, however, the interaction between these laws is fairly simple. PDLL and FMLA run concurrently and you can't take advantage of both. A qualifying employee is potentially eligible for up to 4 months of PDLL leave which run concurrently with the 12 week FMLA leave. However, CFRA bonding leave does not run concurrently and also does not need to be taken immediately upon the birth of the child, but may be taken within 12 months of birth. CFRA leave also applies to an employee who adopts or take in a foster child. PDLL leave can also apply after the baby is born if the mother is disabled or has given birth by Caesarean section. Physicians routinely authorize four weeks of disability leave before birth, and six weeks post-partum for regular birth and eight weeks for Caesarean.
After FMLA, PDLL and CFRA leave are exhausted, an employee may still be eligible for additional leave due to pregnancy related disability, unless the employer can show that it creates an "undue hardship" for it to continue to keep the employee's position open.
Health Coverage and Pregnancy Leave
Under the FMLA, CFRA and PDLL, the employer must continue the employee's health benefit coverage under any group plan under the same conditions as if the employee had continued to work. That obligation stops if the employee notified the employer that she will not be returning to work after her leave. This obligation requires the employer to continue paying the same portion of health insurance premiums it paid while the employee was working.
One of the common tactics that employers use in an attempt to get rid of a pregnant worker who goes on leave is claiming that it discovered that the employee had performance issues while they are on leave. The other common scenario is replacing a pregnant employee who is on leave due to "business necessity" even if hiring a temporary employee would meet the employer's needs as opposed to permanent replacement. Employers also often change stories about the reasons for a pregnant employee's termination. First, they might claim that the employee actually abandoned her job, but once they are sued and they retain counsel, they will start claiming that the reason for termination was poor job performance. Luckily for claimant, if the employee can show that the employer changed its story about the reasons for firing a pregnant employee, these shifting reasons can be used as one type of evidence of unlawful pregnancy discrimination. EEOC v Ethan Allen, Inc. (1994). Although this alone might not be enough to prove a pregnancy discrimination case, it can be quite helpful in establishing discrimination if used in conjunction with other evidence of discrimination. Additionally, if an employer relies on poor work performance as a basis for termination, but never discussed any of these performance issues with the employee prior to termination, that may also provide indirect evidence of discrimination. Logan v Denny's Inc. (2001).
Transfer to Alternative Position
An employer may require the employee taking intermittent or reduced schedule leave to transfer temporarily to an available alternative position that meets the needs of the employee. Of course, the employee must meet the qualifications for the alternative position. The alternative position must better accommodate the employee's leave requirements and must have equivalent pay and benefits (though not necessarily equivalent duties).
Benefits and Seniority During Leaves
The PDLL requires that the employer maintain and pay for health coverage for a female employee taking eligible PDL leave to the same extent and under the same conditions as coverage would have been provided had the employee not taken leave. In general, employers may not discriminate between employees taking pregnancy disability leaves and employees taking unpaid leaves for other temporary disabilities with respect to “health plans, employee benefit plans, including life, short-term and long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans.
Reinstatement Rights After Pregnancy Leave
The PDLL provides reinstatement rights to returning employees. Following a pregnancy disability leave, an employee generally has the right to be reinstated to the same position she held before the leave. An employee has no greater rights than she would have had if continuously employed, even if the employer has given a written guarantee of reinstatement to the employee. If an employee returning from a pregnancy disability leave cannot be reinstated in the same position (discussed above), an employee generally has a right to be reinstated to an available comparable position. A comparable position (for which the employee is qualified) is deemed “available” if it is open on the employee's scheduled return date or within 60 calendar days thereafter or it is one to which the employee is entitled by the employer's policy, contract or CBA. [2 Cal.C.Regs. § 11043(c)(2)(B)]
If the employee is reinstated under the 60-day provision (above), the period between her scheduled return date and the date of her actual reinstatement is not counted for purposes of any pay or benefits. The employer must inform the employee of available comparable positions by means “reasonably calculated” to give her notice of the job openings.
Pregnancy Leave and Disability Rights
Workers disabled by pregnancy or pregnancy related condition are generally entitled to the same rights to an "interactive process" and "reasonable accommodations" as other disabled employees under ADA & FEHA. For instance, a discrimination based on the fact that a person suffers from pregnancy-related depression is a form of disability discrimination, which is prohibited by government code section 12940(a).
Government Code section 12945 addresses two distinct protections available to employees with medical conditions relating to pregnancy. First, an employee disabled by such a condition is entitled to pregnancy-disability leave. Specifically, it is unlawful for an employer to refuse to allow an employee disabled by a condition related to pregnancy to take a leave of absence for a reasonable period, not to exceed four months. And during that leave period, it is unlawful for the employer to refuse to maintain medical insurance coverage for the employee. Secondly, it is unlawful to refuse to reasonably accommodate the same employee or refuse to temporarily transfer a pregnant employee to a less strenuous position, if the employer has a policy of making such transfers for temporarily disabled workers, or if the temporary transfer is requested with the advice of the employee's physician and such a transfer can be reasonably accommodated. (section 12945(a)(3)(B)-(C)).
Pregnancy Discrimination and Sex Discrimination
Discrimination based on the fact that a person is pregnant, has given birth, is breastfeeding, or has a related medical condition is a form of sex discrimination, prohibited by California law, government code section 12940(a). Therefore, many lawsuits (should) include both, a claim for disability and sex discrimination.
Being Terminated While on Pregnancy Leave
In many pregnancy leave and pregnancy discrimination cases, the employee is terminated wile she is still on protected leave. That employee then might have claims for both - a violation of their right to protected leave (usually under PDLL) and wrongful termination based on pregnancy, sex and possibly disability. If successful in proving her case, that employee will be entitled to lost wages and benefits, emotional distress, attorneys fees, and potentially punitive damages.
Pregnancy Leave Rights (FMLA, CFRA & PDLL)
One of the most important laws that protect employees disabled by pregnancy is PDLL (Pregnancy Disability Leave Law. This is because in order to qualify for PDLL leave, an employer needs only to have five or more employees, and unlike with FMLA, there is no length of service requirement in order to be eligible for this type of pregnancy leave. To be entitled to PDLL leave by reason of pregnancy disability, the worker needs to show that she is unable to work or perform her essential job functions or she is unable to do so without undue risk to herself or the successful completion of her pregnancy.
One of the most common questions that pregnant workers have is about the interplay of FMLA, CFRA and PDLL. In reality, however, the interaction between these laws is fairly simple. PDLL and FMLA run concurrently and you can't take advantage of both. A qualifying employee is potentially eligible for up to 4 months of PDLL leave which run concurrently with the 12 week FMLA leave. However, CFRA bonding leave does not run concurrently and also does not need to be taken immediately upon the birth of the child, but may be taken within 12 months of birth. CFRA leave also applies to an employee who adopts or take in a foster child. PDLL leave can also apply after the baby is born if the mother is disabled or has given birth by Caesarean section. Physicians routinely authorize four weeks of disability leave before birth, and six weeks post-partum for regular birth and eight weeks for Caesarean.
After FMLA, PDLL and CFRA leave are exhausted, an employee may still be eligible for additional leave due to pregnancy related disability, unless the employer can show that it creates an "undue hardship" for it to continue to keep the employee's position open.
Health Coverage and Pregnancy Leave
Under the FMLA, CFRA and PDLL, the employer must continue the employee's health benefit coverage under any group plan under the same conditions as if the employee had continued to work. That obligation stops if the employee notified the employer that she will not be returning to work after her leave. This obligation requires the employer to continue paying the same portion of health insurance premiums it paid while the employee was working.
One of the common tactics that employers use in an attempt to get rid of a pregnant worker who goes on leave is claiming that it discovered that the employee had performance issues while they are on leave. The other common scenario is replacing a pregnant employee who is on leave due to "business necessity" even if hiring a temporary employee would meet the employer's needs as opposed to permanent replacement. Employers also often change stories about the reasons for a pregnant employee's termination. First, they might claim that the employee actually abandoned her job, but once they are sued and they retain counsel, they will start claiming that the reason for termination was poor job performance. Luckily for claimant, if the employee can show that the employer changed its story about the reasons for firing a pregnant employee, these shifting reasons can be used as one type of evidence of unlawful pregnancy discrimination. EEOC v Ethan Allen, Inc. (1994). Although this alone might not be enough to prove a pregnancy discrimination case, it can be quite helpful in establishing discrimination if used in conjunction with other evidence of discrimination. Additionally, if an employer relies on poor work performance as a basis for termination, but never discussed any of these performance issues with the employee prior to termination, that may also provide indirect evidence of discrimination. Logan v Denny's Inc. (2001).
Transfer to Alternative Position
An employer may require the employee taking intermittent or reduced schedule leave to transfer temporarily to an available alternative position that meets the needs of the employee. Of course, the employee must meet the qualifications for the alternative position. The alternative position must better accommodate the employee's leave requirements and must have equivalent pay and benefits (though not necessarily equivalent duties).
Benefits and Seniority During Leaves
The PDLL requires that the employer maintain and pay for health coverage for a female employee taking eligible PDL leave to the same extent and under the same conditions as coverage would have been provided had the employee not taken leave. In general, employers may not discriminate between employees taking pregnancy disability leaves and employees taking unpaid leaves for other temporary disabilities with respect to “health plans, employee benefit plans, including life, short-term and long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans.
Reinstatement Rights After Pregnancy Leave
The PDLL provides reinstatement rights to returning employees. Following a pregnancy disability leave, an employee generally has the right to be reinstated to the same position she held before the leave. An employee has no greater rights than she would have had if continuously employed, even if the employer has given a written guarantee of reinstatement to the employee. If an employee returning from a pregnancy disability leave cannot be reinstated in the same position (discussed above), an employee generally has a right to be reinstated to an available comparable position. A comparable position (for which the employee is qualified) is deemed “available” if it is open on the employee's scheduled return date or within 60 calendar days thereafter or it is one to which the employee is entitled by the employer's policy, contract or CBA. [2 Cal.C.Regs. § 11043(c)(2)(B)]
If the employee is reinstated under the 60-day provision (above), the period between her scheduled return date and the date of her actual reinstatement is not counted for purposes of any pay or benefits. The employer must inform the employee of available comparable positions by means “reasonably calculated” to give her notice of the job openings.
Pregnancy Leave and Disability Rights
Workers disabled by pregnancy or pregnancy related condition are generally entitled to the same rights to an "interactive process" and "reasonable accommodations" as other disabled employees under ADA & FEHA. For instance, a discrimination based on the fact that a person suffers from pregnancy-related depression is a form of disability discrimination, which is prohibited by government code section 12940(a).
Government Code section 12945 addresses two distinct protections available to employees with medical conditions relating to pregnancy. First, an employee disabled by such a condition is entitled to pregnancy-disability leave. Specifically, it is unlawful for an employer to refuse to allow an employee disabled by a condition related to pregnancy to take a leave of absence for a reasonable period, not to exceed four months. And during that leave period, it is unlawful for the employer to refuse to maintain medical insurance coverage for the employee. Secondly, it is unlawful to refuse to reasonably accommodate the same employee or refuse to temporarily transfer a pregnant employee to a less strenuous position, if the employer has a policy of making such transfers for temporarily disabled workers, or if the temporary transfer is requested with the advice of the employee's physician and such a transfer can be reasonably accommodated. (section 12945(a)(3)(B)-(C)).
Pregnancy Discrimination and Sex Discrimination
Discrimination based on the fact that a person is pregnant, has given birth, is breastfeeding, or has a related medical condition is a form of sex discrimination, prohibited by California law, government code section 12940(a). Therefore, many lawsuits (should) include both, a claim for disability and sex discrimination.
Being Terminated While on Pregnancy Leave
In many pregnancy leave and pregnancy discrimination cases, the employee is terminated wile she is still on protected leave. That employee then might have claims for both - a violation of their right to protected leave (usually under PDLL) and wrongful termination based on pregnancy, sex and possibly disability. If successful in proving her case, that employee will be entitled to lost wages and benefits, emotional distress, attorneys fees, and potentially punitive damages.