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Pregnancy and childbirth at work (not literally) — it’s different in California

July 16, 2011

The first in what I hope to be an occasional series, regarding how things — specifically employment law-related things — are different in California.

So since pregnancy and childbirth are the beginnings of life, their impact in the workplace seemed like an appropriate place to begin this series.  Here are a few ways it’s different out here.

  • No length of service for pregnancy disability leave.  California’s Pregnancy Disability Leave law (PDL)  is extremely protective of pregnant women who need time away from work due to pregnancy-related disabilities.  The best example of this is the very short amount of time an employee must work to become entitled to such leave.  Short, as in blink and you’ll miss it.  There is no length of service.  That employee you hired yesterday is entitled to leave today (or even yesterday afternoon, or even right after you said, “welcome aboard”).
  • Disability is broadly defined.  It includes serious prenatal issues requiring bed rest.  It can also include morning sickness, or even just additional time needed for normal doctor visits.
  • Even small employers are subject to PDL.  An employer regularly employing five or more employees must provide leave when required.  So the California law obviously impacts far more employers than FMLA (which doesn’t kick in until you have 50 employees in the area).
  • PDL leave potentially lasts a long time.  Again unlike the federal FMLA, pregnant employees in California are entitled to up to four months of leave.  That’s not to say that every pregnant employee gets all four months — the leave lasts as long as the pregnancy-related disability.  For a normal pregnancy, that’s approximately 10 weeks (four pre-partum, six post-partum).  But for difficult pregnancies, these leaves can be lengthy.
  • And I mean a really long time.  Under California law post-partum bonding leave and PDL do not run concurrently.  So pregnant employees who qualify for bonding leave under California’s Family Rights Act (CFRA, similar to FMLA — more than 50 employees within 75 miles; one year’s service of at least 1250 hours) can get up to seven months of leave.  That’s four months of disability leave, followed by three months of bonding leave.
  • The employee’s doctor is in charge.  When it comes to pregnancy disability, if the employee’s doctor says she is disabled, she is disabled.  Employers can require an employee to submit medical certification of the need for leave.  However, no second or third opinions are permitted.  And even with the first opinion, the employer can only ask for (1) date of disability, (2) its probable duration, and (3) a general statement that the employee can’t work at all or can’t do some of the job functions without risk to mother or child.
  • Strict reinstatement rights.  An employee returning from CFRA bonding leave must be reinstated to a comparable job, similar to FMLA.  But an employee coming directly back to work from pregnancy disability leave must be put back into her old job unless the employer can show why she can’t get it.  (Usually, that the job doesn’t exist anymore, for reasons other than the employee’s leave.)
  • Reasonable accommodations must be given.  A pregnant employee who can work, but cannot perform some of her job functions, must be accommodated if possible, for instance by being placed in a light duty assignment.
  • Lactating mothers must be given time and a place to express milk.  OK, since the recent federal Affordable Care Act, this is no longer so different than anywhere else in the country.  But we’ve been doing it for much longer here.  California pride, baby!
  • Paid family leave is available.  Under California’s Paid Family Leave (PFL) program, employees who take time off to bond with new children can obtain six weeks of unemployment insurance benefits.  But PFL does NOT require employers to provide any additional leave, and does NOT provide reinstatement rights.   It just provides some money for a portion of a leave that would otherwise go unpaid (as are both PDL leave and bonding leave).

Employers, welcome to California.  We’re happy to have you, and we could sure use your tax revenues right about now.  Just be aware — it’s different out here.  Forewarned is forearmed.

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