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Employment Law Blog

Saturday, April 10, 2010

Pregnancy At Work: A Review Of California Employer Obligations

Q: How common is pregnancy discrimination?

Although most companies protect against pregnancy discrimination, the EEOC has recorded an increase in claims between 2001, when 4,287 charges were made, and 2009, when 6,196 charges were made. The chart below illustrates the trend.

Q: I own a California business with 20 employees. A new employee, who I hired three weeks ago, just announced that she is pregnant. Do I need to provide a leave of absence to this employee?

The answer depends on the details. Because your business employs fewer than 50 employees, the pregnant employee is not eligible for 12 weeks of FMLA or CFRA leave. However, California’s Pregnancy Disability Leave, which covers employers with five or more employees, and has no prerequisite length of employment, does cover your employee.

Unlike the FMLA and CFRA, which do not cover employees until they have worked for the company for at least 12 months, and until they have worked at least 1,250 hours during the year before the start of leave, California’s PDL has no waiting period. Employees are eligible for the leave immediately upon hire.

If your employee becomes medically disabled on account of her pregnancy (i.e. she is unable to perform her job duties) then she may take leave during that period of disability, for up to four months of PDL leave. At the end of the disability period, if she is able to return to work you must guarantee reinstatement to the same position.

If the disability ends, and the baby is born, you won’t be required to provide additional time off for baby bonding because PDL provides disability leave only. Although CFRA provides for up to 12 weeks off for baby bonding, your company is not subject to that leave law.

Your employee may use any accrued paid time off to take care of the baby. Your company can also voluntarily offer unpaid time off for the new mother. She may also qualify for state wage replacement benefits from the EDD.

Q: I am a California employer with 60 employees. I have a pregnant employee in the warehouse who states that on her doctor’s advice she should avoid lifting more than 40 pounds. In her current position in order fulfillment she must lift 50 pound boxes and she has asked to move to an open position in shipping where she wouldn’t do any lifting. Do I need to transfer her?

Although the FMLA does not require a transfer to light duty, under the California law, an employer must transfer a pregnant employee to less strenuous or hazardous position, where based on advice of a doctor, and where the transfer can be reasonably accommodated. 

Also, under the federal Pregnancy Discrimination Act (PDA) an employer should temporarily transfer a pregnant employee to light duty if the same right is available to other similarly non-occupationally disabled employees.

Here, your employee states that she cannot lift over 40 pounds. You are entitled to ask for medical confirmation of this restriction. Assuming lifting boxes is an essential part of her job, she cannot perform her duties. Since you have an open position which the employee is qualified to fill, it would be a reasonable accommodation to temporarily transfer her.

After the restriction is lifted, you should transfer her back to her original job.

Related Article: Pregnancy Discrimination Update: Sea Captain Unlawfully Terminates Pregnant Shipmate

Submitted by:
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Barker Olmsted & Barnier, APLC
San Diego Employment Law Attorneys

Posted by Christopher W. Olmsted on 04/10 at 08:05 PM
California Employment LawEmployment Law