Deciding to have a child is one of the most joyful and nerve-wracking decisions one can make. Individuals take many factors into consideration, including job security and income. There are so many questions when deciding to have a child, but workplace issues should not be on the list. The good news… Federal and California Laws protect employees against pregnancy discrimination.
What is Pregnancy Discrimination?
Under Federal and California law, employers cannot discriminate against employees based on protected classes including sex. Sex includes pregnancy, childbirth, or medical conditions related to childbirth. Pregnancy discrimination occurs when an employer treats a female applicant or employee differently because of pregnancy, plans to become pregnant, childbirth, or pregnancy related medical conditions. California law applies to companies with five (5) or more employees.
Harassment:
It is illegal for an employer to create an unwanted, hostile work environment based on someone’s sex. As noted above, sex includes pregnancy, childbirth and medical conditions related to pregnancy.
Retaliation and Discrimination:
It is unlawful for an employer to retaliate against an employee following a protected activity. Protected activities include use of personal leave or complaints about discrimination. Retaliation includes termination, demotion, or reassignment to lesser positions.
Forms of Discrimination:
- Termination.
- Demotion.
- Failure to provide reasonable accommodations.
- Failure to provide pregnancy or childbirth related leave.
- Refusing to hire you because of a pregnancy, planning to become pregnant, childbirth, or medical conditions related to pregnancy.
- Treating pregnancy related conditions differently than other disabilities. For instance, providing greater accommodations to individuals injured on the job in comparison to pregnancy related disabilities.
- Benefits and bonuses, such as health insurance benefits.
- Requiring medical notes from pregnant employee’s doctor concerning work status if not required from other employees who have short-term disabilities.
Reasonable Accommodation Requests:
- Employer must engage in an interactive process to identify a reasonable accommodation.
- Accommodation requests must be medically necessary.
- Employers are entitled to medical certification.
- Examples of accommodations: more frequent breaks, telecommuting options, temporary job reassignments, etc.
Taking Time Off:
Although there is no Federal law guaranteeing paid leave for childbirth, under California law you may be able to take paid and/or unpaid leave during pregnancy, childbirth, or for child bonding.
- Paid Leave
- California Paid Family Leave Insurance (PFL): You may be eligible for PFL to bond with your new child (biological, adopted, or foster child).
- Who: Full time or part-time employees who contributed to State Disability Insurance (CASDI) in the past 5 to 18 months. Independent contractors who contributed to Disability Insurance Elective Coverage program.
- When: Within 12 months of welcoming your child
- How much: Approximately 60 – 70 percent of your weekly salary. Note: You may be allowed by your employer to use other leave hours (vacation, sick, paid time off, etc.) to receive 100% of your salary. Your employer may also request the use of your vacation time before issuing payments under PFL.
- State Disability Insurance (SDI): SDI provides partial wage replacement for eligible California employees who cannot perform their jobs due to a disability, including pregnancy.
- Who: Eligible California workers who are have a disability that prevents the performance of your regular and customary work. Disability includes pregnancy, childbirth, or related medical condition.
- How much: Approximately 60 – 70 percent of wages earned 5 – 18 months before the claim start date. Can be paid a maximum of 52 weeks.
- Additional Requirement: Your physician/practitioner will have to certify disability by completing the Physician/Practitioner Certification.
- Unpaid Leave
- Family and Medical Leave Act (FMLA): Under FMLA, you are entitled to unpaid leave for up to 12 weeks for a family health emergency or to take care of a new baby.
- Who: Eligible employees of covered companies. Eligible employees are those who have worked for at least 1,250 hours within the past 12 months with the same employer. Covered companies are those with 50 or more employees within a 75-mile radius.
- How much: Up to 12 unpaid weeks per year.
- Note: While on FMLA, your job is protected, which means that you will be returned to your same position or a position where the pay is substantially the same.
- California Family Rights Act (CFRA): Up to 12 weeks of unpaid leave after the birth of child, adoption or foster care placement or a serious illness you or your family member (including a domestic partner) is suffering, other than pregnancy.
- Who: Like FMLA, eligible employees of covered companies.
- Note: Your job and health insurance will be protected.
How much time do I have total?
It depends. However, PFL and FMLA run concurrently. Similarly, FMLA and CFRA run concurrently. Thus, FMLA and CFRA do not amount to 24 weeks of unpaid leave. Nevertheless, it is important to know that there are various sources of paid and unpaid leave related to pregnancy and short-term disabilities.
When Planning on Returning to Work, Keep in Mind…
- Request any necessary reasonable accommodations.
- You can take unpaid breaks for breastfeeding.