The amount of leave or accommodation employers must provide to pregnant employees is rapidly expanding as legislatures and courts at the federal, state and local level wrestle with how to accommodate working families. For example, the United States Supreme Court will hear Peggy Young v. United Parcel Service this session; a case involving theissue of whether an employer must provide a less strenuous job to a pregnant employee, when other workers with disabilities receive accommodations, instead of unpaid leave under the Pregnancy Discrimination Act. This article provides a sampling of some of the laws in this arena.
California is leading the way in expanding laws surrounding employees expecting children. The state provides two types of pregnancy related leave both of which may be added together and used cumulatively. Under California’s Pregnancy Disability Leave Law (“PDLL”), which is part of the Fair Employment and Housing Act (“FEHA”), an employee has unpaid pregnancy disability leave up to four months at any time during pregnancy, or after the child is born if the employee cannot work due to pregnancy, childbirth, or a related medical condition. This leave includes time needed for prenatal care, morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, or a related medical condition. Pregnancy disability leave may be taken intermittently or on a reduced work schedule basis.
The employer must also provide a reasonable accommodation where an employee is disabled as the result of a condition related to the pregnancy, childbirth, or associated medical condition and requests a reasonable accommodation on the advice of her health care provider. If possible, the employee must provide 30 days advance notice to her employer regarding the date the disability leave is sought or a transfer begins, and the estimated amount of leave. Employees are guaranteed a return to their same position after their pregnancy disability leave or transfer, and if the same position is no longer available, an employer must offer a position that is comparable in pay, location, job content and promotional opportunities unless the employer can prove no comparable opportunity exists. FEHA applies to employers with 5 or more employees. The PDLL applies regardless of the length of time the employee has been in his or her position or the numbers of hours he or she has worked for the employer.
The second type of pregnancy related leave in California is provided under the California Family Rights Act (“CFRA”). The CFRA allows an employee to take up to 12 weeks of leave to bond with the newborn child in addition to the four months allowed for under the PDLL. CFRA applies to employees who have worked for the employer for at least 12 months; had at least 1,250 hours during the 12 months before the leave begins; the employer has at least 50 employees within a 75-mile radius of the employee’s worksite; and the employee takes the leave within one year after the child is born. An employer is not required to provide paid leave to the employee under the CFRA unless the eligible employee elects or the employer requires the employee to use vacation time accrued or other accumulated paid leave except sick leave. Sick time may be used for leave requested for serious illness.
An employee may also be entitled to six weeks of paid leave under California Paid Family Leave (PFL) while on unpaid leave to bond with the new child. California’s Paid Family Leave Act was passed in 2002 and eligible employees could collect benefits beginning on July 1, 2004. This Act is part of the State Disability Insurance Program, which used to limit compensation to wage loss from disability due to sickness or injury, but now includes wage loss because of the need to care for a seriously ill family member or to bond with a child. PFL applies to all California employers regardless of the number of employees or hours worked by those employees. There is no job reinstatement provision. Domestic partners are covered by this provision. Eligible employees must wait one week during which no benefits are paid. The PFL is fully funded through employee contributions to disability insurance. California Paid Family Leave must be taken concurrently with leave an employee is entitled to under California’s Family Rights Act (or the similar Federal Family Medical Leave Act (“FMLA”)).
Temporary disabilities during pregnancy may require a reasonable accommodation by the employer under the federal Americans with Disability Act (“ADA”) and state or local law. Notably, California has a much broader definition of disability than the ADA, which may require accommodations for a pregnant employee that would not be required under federal law. Under the ADA, employers may need to provide for modified tasks, alternative work assignments, and/or disability leave or leave without pay for temporary disability related to pregnancy or face the possibility of suit under the Federal Pregnancy Discrimination Act. Applying automatic time limits for medical leaves for employees with disabilities is no longer lawful. If an employee with a disability wants to extend his or her leave beyond FMLA or the company’s policy regarding time limits, the employer is required under the ADA to use the interactive process and grant extended leave to the employee if it is a reasonable accommodation for the disability and does not create an undue hardship for the employer. Employers should communicate with employees identifying potential accommodations and determine if those accommodations will allow the employee equal opportunity to perform the essential functions of the job or equivalent benefits and privileges of employment compared to an employee who is not disabled. Employers must consider the employee preference; however, an employer can still choose another effective accommodation. Whether an employer engaged in a sufficient interactive process provided reasonable accommodation or had an undue hardship are areas of frequent litigation. The ADA applies to employers with 15 or more employees on each working day in each of 20 or more calendar weeks in the current or preceding year.
Because of the varying laws and the expanding nature of regulation in this area, employers should not navigate pregnancy related leave issues alone and should consult with an employment law attorney.
By: Susan DeNardo
The information presented in this article is intended for general educational purposes. It is not intended to be legal advice. Every company or person’s situation is different and requires individual analysis by competent counsel before legal advice can be rendered. If you are confronted by a legal issue retain competent legal counsel to advise you immediately. This article is not a substitute for legal advice from an attorney licensed to practice in your jurisdiction.