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The Problem: Dramatic Increases In Claims Of Workplace Discrimination And Retaliation Against Employees Needing Medical Or Pregnancy Leaves Of Absence
According to a study conducted by the National Partnership for Women & Families (http://www.nationalpartnership.org/site/PageServer?pagename=newsroom_pr_PressRelease_081029) claims of pregnancy discrimination in the workplace have skyrocketed in recent years. According to the study, there has been a 65% increase in pregnancy discrimination complaints filed with the EEOC since 1992. According to a USA Today article, the surge in pregnancy complaints makes it one of the fastest-growing types of employment discrimination charges filed with the EEOC - outpacing the rise in sexual harassment and sex discrimination claims. The charges are coming from a range of women, from those in entry-level jobs as well as those in executive suites. (http://www.usatoday.com/money/workplace/2005-02-16-pregnancy-bias-usat_x.htm).
An even higher rate of increase (400%) has been observed in claims for discrimination and retaliation against employees who take medical leaves under the Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA) and various state law versions of these statutes, all of which require employers to provide time off of varying lengths to employees suffering from serious medical conditions. (http://lawyersusaonline.com/blog/2009/05/07/caregiver-bias-claims-grow/).
 PREGNANCY
The California Fair Employment and Housing Act (FEHA) prohibits employers from harassing, demoting, terminating, or otherwise discriminating against any employee on the basis of gender, which includes pregnancy. The Act applies to all employers that regularly employed five (5) or more full-time employees in the preceding year.
If you are subjected to unlawful harassment or discrimination on the basis of pregnancy, you may be entitled to recover damages for emotional distress, lost wages, punitive damages and attorney's fees.
PREGNANCY DISABILITY LEAVES
TYPE AND DURANTION OF LEAVE FOR PREGNANCY AND PREGNANCY RELATED CONDITIONS
The California Pregnancy Disability Leave Law ("PDLL")[Government Code § 12945(a), 2 Cal Code Regs. §§7291.2-7291.16] requires California employers to provide up to four (4) months of leave [88 days] for employees actually disabled by pregnancy or pregnancy-related conditions.
The time is often taken all at once during the few weeks before and after delivery, but can be taken at any time throughout and after the pregnancy intermittently. In other words, you may take a block of time off like a week or a month, or you may take time off for several hours to accommodate morning sickness, prenatal visits, complications, recovery, etc.
It is important to note that California's PDLL requires California employers to provide up to four (4) months of leave for employees actually disabled by pregnancy or pregnancy-related conditions even if the employer's policies do not grant employees suffering from other short-term disabilities a similar amount of leave. In other words, unlike the federal Pregnancy Discrimination Law ("PDL"), California's PDLL requires that California employers give pregnant workers special, rather than simply equal treatment.
EMPLOYERS MUST ACCOMMODATE PREGNANCY RELATED DISABILITIES
The California PDLL also entitles pregnant workers to a reasonable accommodation of their pregnancy or pregnancy related problems like morning sickness. Pregnant workers may be entitled to temporarily transfer to a less strenuous position (if such a job is available) for the duration of their pregnancy, then return to their prior position when they are ready and able to do so. However, no employer shall be required to create additional employment that the employer would not otherwise have created, nor shall the employer be required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job.
EMPLOYEES MUST GIVE REASONABLE NOTICE OF NEED FOR PREGNANCY DISABILITY LEAVE
An employee who wants Pregnancy Disability Leave must provide her employer with notice of her need for leave at least 30 days before the leave is to begin (verbal or written). If 30 days' advance notice is not practicable, due to a lack of knowledge of when leave will begin, a change in circumstances, or a medical emergency, the employee must notify the employer as soon as possible. An employer may require a medical certification, which means written communication from the employee's health care provider stating that she is disabled due to pregnancy, and which contains the date the employee became disabled due to pregnancy, the probable duration of her disability, and an explanatory statement that, due to the disability, the employee is unable to work at all or unable to perform any one or more of the essential functions of her position without undue risk to herself, the successful completion of her pregnancy, or to other persons.
PAY AND BENEFITS - PREGNANCY DISABILITY LEAVE
Health Insurance While On Leave
An employer is not obligated to continue health insurance coverage while a woman is out on pregnancy disability leave unless the employer provides health insurance for employees who are out on other forms of disability leave. An employer, may, however, be required to pay for health insurance benefits for up to twelve (12) weeks of leave if the pregnancy disability leave can also be considered as leave under the Federal Family and Medical Leave Act (FMLA).
Use of Sick Leave, Vacation Leave, or Other Paid Leave While on Pregnancy Disability Leave
An employer may require an employee to use any of her accrued sick leave during the otherwise unpaid portion of her pregnancy leave. Also, a woman may request the use of her sick leave, vacation leave, and/or any other leave credits she has in order to receive compensation during the otherwise unpaid portion of her pregnancy disability leave.
EMPLOYER'S OBLIGATIONS AFTER PREGNANCY DISABILITY LEAVE
An employer must place an employee returning from Pregnancy Disability Leave in the same job she held before the leave, or in some cases, in a comparable position only if her position is no longer available. If that is the case, the employer should offer the employee a position that is comparable in terms of pay, location, job description and promotional opportunities unless no comparable position exists.
EMPLOYEES EXPRESSING BREAST MILK AT WORK
California Labor Code §§ 1030-1033 requires employers to reasonably accommodate employees who wish to express breast milk at work. Employers must provide a reasonable amount of break time and a private place (other than a toilet stall). Employees may be required to use paid rest breaks already provided by the employer. If an employee needs additional time beyond normal paid rest breaks, an employer must provide a reasonable amount of additional time, but it may be unpaid. There is a penalty on employers of $100 for each violation.
ADDITIONAL LEAVE AVAILABLE AFTER THE BIRTH OR ADOPTION OF A BABY UNDER CALIFORNIA'S FAMILY RIGHTS ACT
In California, once the employee has given birth she may be entitled to an additional leave "for the reason of the birth of a child" under the California Family Rights Act ("CFRA"), which is California's version of the FMLA. Employees may take up to 12 weeks unpaid time off to care for a newborn or newly adopted child.
ELIGIBILITY FOR CFRA "Bonding Leave" -
_ private employers who have at least 50 employees (within a 75 mile radius) and all public employers regardless of size;
_ employees must have worked for at least 12 months (need not be consecutive);
_ employee must have worked at least 1,250 hours within 12-months prior to the requested CFRA leave or pregnancy disability leave.
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