The Right to Pregnancy Leave and Return

A worker who is pregnant does not suddenly forget how to successfully do her job or become unqualified for her position. Yet employees can dread taking a leave during their pregnancy. A pregnant employee might wonder whether she can be demoted, transferred, or fired by the employer after revealing news that she is pregnant and will be taking leave. The simple answer: “No!” In this post, I will discuss an employee’s rights to leave when pregnant and when suffering a pregnancy-related disability.

A Pregnant Worker in California is Entitled to Leave Even When Her Length of Employment is Less Than 12 Months

State and federal laws guarantee employees leave when pregnant or when suffering from pregnant-related conditions, whether before, during, or after pregnancy. Some laws, such as the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA), have eligibility requirements, provide job-protected leave, and require the employer to keep the same employer-paid health benefits the employee had while working. Job-protected leave means that the employee is protected against not only losing her job but also being demoted or transferred to an inferior position due to the leave.

Employees do not always have to meet eligibility requirements to take leave. An employee who has a qualifying pregnancy-related disability, such as severe morning sickness, preeclampsia, or post-partum distress, can take leave under the California Pregnancy Disability Leave Law (PDL or PDLL), regardless of how long she has worked for the company, how many hours she logged in the past 12 months, or full- or part-time status with the company. Similarly, an employee who is suffering from a pregnancy disability is entitled to an accommodation under the California Fair Employment and Housing Act (FEHA). Accommodations that are commonly granted under these circumstances include modifications to a job schedule, longer meal or rest breaks, granting absences or leaving work early for a doctor’s appointment, working from home, and leave. An employer may have the right to deny an accommodation if it would impose an undue burden or hardship.

Not all leave is paid. However, an employee can use—and be required to use—accrued vacation or sick time available under company policy. The employee can also obtain California state disability benefits as a wage replacement while on leave if the pregnancy renders the employee unable to work or otherwise disabled.

What Can I Do If My Leave is Denied?

An employer may require an employee to provide a medical certification form regarding her pregnancy and require the employee to give reasonable notice before taking leave. The employer cannot, however, illegally deny or interfere with the leave. For example, a professional employee working in Santa Ana, California who is on leave cannot be forced to work while on leave, even if it is remote work, or be requested to respond to emails or text messages from her supervisor regarding job assignments.

Employees in California have many options when a supervisor, HR, or a leave administrator wrongfully violates the right to pregnancy leave or disability leave. The employee can report the violation to the proper personnel with the employer. The employer should then take prompt, remedial action in response to the complaint. If it does not and, instead, retaliates against the employee, the employer could be subject to a civil lawsuit or complaint with the California Department of Fair Employment and Housing (DFEH). Denial or interfering with disability leave can also lead to an employee suing the employer in court, arbitration, or before the DFEH and assert claims for back wages, punitive damages, and emotional distress.

If you were denied employment, lost your job, or demoted because of your pregnancy or disability, please contact Southern California wrongful termination attorney Yashdeep “Jesse” Singh to schedule a free consultation.