Pregnant Workers’ Rights Attorney

If You’re a Pregnant Worker, You May Be Eligible to Take up to Four Months of Protected Leave Under PDL

California’s Pregnancy Disability Leave Law (“PDL”) requires employers that have five or more employees to provide up to four months of leave for employees “disabled” by pregnancy or pregnancy-related conditions. The PDL law provides pregnancy leave even when the employer’s policies do not grant leave for other short-term disabilities. California state government, counties, cities and any other political or civil subdivision of the state must make PDL disability leave available, regardless of the number of employees.

Covered employers must:

• Provide up to four months of job-protected leave with continuation of health coverage for disability due to an employee’s pregnancy, childbirth, or related medical conditions;
• Reasonably accommodate employees with conditions related to pregnancy, childbirth, or related medical conditions; and
• Under certain circumstances, transfer covered employees
  to a different job/task.

An employee disabled by pregnancy doesn’t need to meet any length of service requirement before becoming entitled to PDL. PDL eligibility begins on the employee’s first day on the job. In addition, although the law discusses coverage of “eligible female employees,” an eligible employee also includes a transgender employee who is disabled by pregnancy. In other words, if you are a transgender employee that identifies as a male and is pregnant, you are still covered by California’s PDL law.

As a practical matter, even if you employ fewer than five employees, you should consult legal counsel before terminating a pregnant employee. You may be found in violation of public policy, even if you are not technically covered by the law. California courts increasingly hold small employers responsible for violations of “public policy,” meaning that small employers may be as responsible as large ones for following this law.

What does “disabled” by pregnancy mean”?

The employee is disabled due to her pregnancy if the employee is unable to perform any one or more of her essential job functions; or unable to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to other persons.

“Disabled by pregnancy” includes, but is not limited to, time when the employee needs time off for:

• Severe morning sickness;
• Time off for prenatal and postnatal care;
• Gestational diabetes;
• Pregnancy-induced hypertension;
• Preeclampsia;
• Bedrest;
• Childbirth;
• Postpartum depression;
• Loss or end of pregnancy; and
• Recovery from childbirth, loss or end of pregnancy (stillbirth, miscarriage or abortion).

The employee’s health care provider ultimately decides if the employee is disabled by pregnancy.

What does “affected” by pregnancy mean”?

An employee is “affected by pregnancy” if — because of pregnancy, childbirth or related medical condition (or a condition related to pregnancy, childbirth or a related medical condition) — it is medically advisable for an employee to transfer or otherwise be reasonably accommodated by the employer.

It is unlawful for an employer to refuse to provide reasonable accommodation or transfer for an employee “affected by pregnancy.” This is a different definition than “disabled by pregnancy” for purposes of the PDL requirement and is a lower threshold for the employee to meet.

How much leave time is available under Pregnancy Disability Leave?

A full time pregnant employee can take up to four months (17 1/3 weeks) of leave, when disabled by pregnancy. This applies for each pregnancy. For example, a full time employee who took time off in February and March early in a high-risk pregnancy and then miscarried would be entitled to a new leave of up to four months if the employee became pregnant again later that same calendar year.

Four months means the number of days an employee normally would work within four calendar months. If an employee’s schedule varies from month to month, a monthly average of the hours worked over the four months prior to the beginning of the leave must be used for calculating the employee’s normal work month.  Typically, the hours of leave is not calculated unless the employee is taking leave intermittently.

This is because PDL does not need to be taken in one continuous period of time. Employees can take leave as needed, intermittently or on a reduced work schedule when medically advisable, as determined by the employee’s health care provider. Employers can limit leave increments to the shortest period of time that the payroll system uses to account for absences or use of other leave, provided that the increment is not greater than one hour. For example, if employees must use vacation in 30-minute increments or more, an employer can require an employee who comes in 20 minutes late due to severe morning sickness to use 30 minutes of the employee’s PDL entitlement.

An employer must provide up to four months of leave even if the employer maintains a policy or practice that provides less than four months of leave for other temporarily disabled employees. However, if an employer offers a more generous leave policy for other temporary disabilities, the employer must provide the more generous leave to employees temporarily disabled by pregnancy.

In addition, an employee may remain disabled at the end of four months and request additional time off. In this situation, an employer must engage in the interactive reasonable accommodation process, under the California’s Fair Employment and Housing Act (FEHA).

Using vacation and sick leave when on Pregnancy Disability Leave

An employer cannot require concurrent use of vacation time or PTO, but an employee may elect to use vacation time and PTO concurrently to receive pay during the leave. Note, an employer may require an employee to use sick leave if PDL leave is running concurrently with FMLA leave.

PDL Notice Requirements

Employers of five or more employees must post the PDL notice “Your Rights and Obligations As A Pregnant Employee” from the California Department of Fair Employment and Housing (DFEH).  The notice includes information about:

• An employee’s right to request reasonable accommodation, transfer, or a pregnancy disability leave.
• Employees’ notice obligations to provide advance notice to the employer if the employee needs reasonable accommodation, transfer, or a pregnancy disability leave.
• Any employer requirement that the employee provide medical certification of the need for pregnancy disability leave, reasonable accommodation, or transfer.

The poster must be posted in conspicuous places on the employer’s premises and must contain fully legible text that is large enough to be easily read. An electronic posting may be used to meet the posting requirement, as long as it is posted electronically in a conspicuous place or places where employees would tend to view it in the workplace. It must be translated into any language that is the primary language of 10% or more of workers. Employers with five or more employees are also covered by CFRA, which has its own separate posting requirements.

An employer must also give an employee a copy of the relevant PDL notice as soon as practicable after the employee tells the employer of the employee’s pregnancy, or sooner if the employee inquires about reasonable accommodation, transfer or pregnancy disability leave.  This is in addition to the posting requirements.

An employer must respond to a request for pregnancy leave, reasonable accommodation or transfer request as soon as possible, but no later than 10 calendar days after receiving the request. If the pregnancy leave would also qualify as a leave under the CFRA, the employer must respond no later than the shorter five (5) business days after the request, unless “extenuating circumstances” exist.

Retaliation and Avoiding Leave Responsibilities is Prohibited.

The employer cannot retaliate against an employee for exercising the right to take protected leave or participating in an inquiry or proceeding regarding their own or someone else’s leave rights. Such employment decisions could result in a retaliation and a sex discrimination claim.

An employer is also prohibited from avoiding their leave responsibilities by:

• Transferring employees for the purpose of remaining under the eligibility.
• Changing essential functions of the job to preclude the taking of leave.
• Reducing an employee’s work hours to avoid eligibility.
• Terminating an employee anticipated to take leave.

Employees cannot waive their rights to leave. Employers cannot use the taking of leave as a negative factor in any employment action, nor can it be used against an employee under any attendance policy. All individuals, not just those qualified to take leave, are protected from retaliation for opposing (complaining about) any practice prohibited by the leave law.