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  • Ryan Cadry

California Pregnancy Discrimination: Knowing My Rights and 2021 Updates to the CFRA

Pregnancy Discrimination occurs where an adverse employment action (e.g. hiring, firing, demotion, harassment) is taken against a expectant mother or a woman who intends to become pregnant. Pregnancy discrimination includes, but is certainly not limited to, termination from employment after informing an employer of one's pregnancy, being fired after seeking maternity leave, and receiving a pay reduction due to pregnancy.

There are a variety of reasons why an employer might discriminate against a pregnant women. Generally, employers fear that expectant mothers might lose productivity or otherwise require too many accommodations after their return. An employer might also fear a loss in profits by paying a pregnant employee who seeks paid leave.


Regardless of the reason, the fact remains that Federal law and California state law prohibit employment discrimination based upon sex as regards to the terms, conditions, and privileges of employment. In other words, the law requires that a pregnant job applicant or employee be treated the same as a nonpregnant applicant or employee. This prohibition extends to the allocation of fringe benefits and includes policies regarding conditions unique to women, such as pregnancy and childbirth. Employers must treat pregnancy and childbirth like other causes of disability under benefit plans such as health or disability programs.


Pregnancy Disability Leave Law (PDLL)


In California, women are protected under Pregnancy Disability Leave Law (PDLL) - requiring employers to provide up to four months of leave for employees actually "disabled" by pregnancy or pregnancy-related conditions. The PDLL provides pregnancy leave even when the employer's policies do not grant leave for other short-term disabilities the law applies to all employees no matter how long they worked for the company as long as the company has 5 or more employees. However, employees of non-profit and religious organizations are exempt.


The California Code of Regulations (CCR) allows expectant mothers, or those who are disabled by childbirth or a related medical condition to take up to four months of protected pregnancy disability. A four-month leave, as defined in §7291.2l, means the number of days the employee would normally work within four calendar months (one third of a year equaling 17 1/3 weeks), if the leave is taken continuously, following the date the pregnancy disability leave begins. If an employee's schedule alternates from month to month, the monthly average of the hours worked over the four-month period prior to the beginning of the leave must be used to determine the employee's normal work month. Thus, the total amount of leave available will be based on a one-third year measurement of an employee's normal work schedule.


For example, a full-time employee who works 40 hours per week would be entitled to 693 hours of PDL based on 40 hours per week times 17 1/3 weeks. Similarly, an employee who normally works 20 hours per week would be entitled to 346.5 hours of PDL, whereas as an employee who normally works 48 hours per week would be entitled to 832 hours of PDL.


The CCR, in §7291.2g provides guidance on when a woman is deemed to be disabled by a pregnancy: "A woman is disabled by pregnancy if, in the opinion of her health care provider, she is unable because of pregnancy to work at all or is unable to perform any one or more of the essential functions of her job or to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to other persons."


Is "Stacking" Allowed?


Yes. Employees may stack the leaves provided by the PDL and the California Family Rights Act (CFRA) in order take up to 7 months' leave. Further An employee who is covered by the federal Family and Medical Leave Act (FMLA) qualifies for the benefits of FMLA and the CFRA as well as the benefits of the PDL. Thus, such an employee may, after completing her PDL leave of up to 4 months for disability during pregnancy and the birth of her child, take an unpaid CFRA leave for up to 12 additional weeks for the purpose of bonding with her child.


Are There an Eligibility Requirements for PDLL Protection?


There is no eligibility requirement (such as minimum hours worked or length of service requirement) before an employee affected or disabled by pregnancy becomes eligible for reasonable accommodation, transfer or disabi lity leave. 2 CCR § 7291.4. This means that an employer cannot impose a minimum length of service or hours requirement on an employee before she becomes entitled to her PDL rights under FEHA. This is in contrast to the California Family Rights Act (CFRA), which does impose both a length of service (12 months) and hours worked (1,250 hours of service during the previous 12-month period) requirement before an employee can request CFRA leave.


What if My Employer Wants to Transfer Me to Another Position?


An employer may not transfer an employee affected by pregnancy over her objections to another position, except if the employee’s health care provider provides medical certification that the employee has a medical need for intermittent leave or reduced work schedule because of pregnancy. Then the employer may require the employee to transfer temporarily to an available alternative position that meets the needs of the employee. The alternative position must have the equivalent rate of pay and benefits and must better accommodate the employee’s leave requirements than her regular job, but it does not have to have equivalent duties. 2 CCR § 7291.6(a)(1)(G) and 2 CCR § 7291.8(c).


Family Medical Leave Act (FMLA)


In addition to the PDLL, expectant mothers also have rights under California's Family Medical Leave Act (FMLA). FMLA is applicable to employers with at least 50 employees who work within 75 miles of each other. The employee is required work a minimum 1250 hours before they are entitled to FMLA leave. However, employees covered under FMLA have the right to 90 days of leave if they have a medical condition requiring leave. Pregnancy-related medical conditions normally qualify under the FMLA. A company can require that your FMLA and PDL leave run concurrently if the employer informs you of this. If the employer fails to inform you, the leave can run consecutively such that the employee can take 4 months of PDL leave and then 3 months of leave under the FMLA.


California Family Rights Act (CFRA)


Another avenue for leave is the California Family Rights Act (CFRA) - California's equivalent of FMLA. CFRA authorizes eligible employees to take up a total of 12 weeks of paid or unpaid job-protected leave during a 12-month period. While on leave, employees keep the same employer-paid health benefits they had while working. Eligible employees can take the leave for (1) the birth, adoption, or foster care placement of a child, (2) to care for an immediate family member with a health condition, and/or (3) if the employee is unable to work because of serious health condition. It should be noted that a pregnancy itself is no covered as a "serious health condition" . However, an new mother seeking CFRA leave can do so under a 12-week baby bonding leave.


With the passage on Senate Bill 1383, the California greatly expanded CFRA beginning January 1, 2021. Signed by Governor Newsom on September 17, 2020, SB 1983 expanded the CFRA to make it an unlawful employment practice for any employer with five or more employees to refuse a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period so that the employee can bond with his or her to bond with a new child, or to care for themselves, a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner. The new law also requires an employer who employs both parents of a child to grant leave to each employee. The law defines "employee" for these purposes as an individual who has at least 1250 hours of service with the employer during the previous 12-month period. The bill expands CFRA's scope to cover all employers with at least five (5) employees (as opposed to the 50-employee threshold previously required). SB 1383 also expanded the definition of "family members" beyond what is required under FMLA.

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