What are My Rights as a Pregnant Employee?

As a pregnant employee you have rights.

Under California law, the Fair Employment and Housing Act (FEHA), (California Government Code section 12900, et seq.), employers with five (5) or more employees are not allowed to discriminate against you on the basis of sex, which includes discrimination because:

• You are pregnant;
• You have been pregnant;
• You have a medical condition related to pregnancy or childbirth (including post-partum depression, preeclampsia, severe morning sickness, pregnancy-induced hypertension, and/or gestational diabetes);
• You are recovering from childbirth; or
• You could become pregnant or intend to become pregnant.

In addition, the federal Pregnancy Discrimination Act of 1978 (United States Code, Title 42, section 2000e(k), prohibits discrimination against a person who had an abortion or intends to have an abortion.

What this all means is that your employer cannot terminate your employment, or refuse to give you a promotion to which you are otherwise entitled, or demote you to a lesser position, or assign you to perform more menial tasks, or force you to take a leave of absence from work because of any of the pregnancy-related reasons cited above.

Under FEHA, all employers regardless of size are not allowed to harass you because of pregnancy or a pregnancy-related reason. Moreover, employers must take all reasonable steps necessary to prevent such discrimination and harassment from occurring (see California Government Code section 12940(k)).

What this means is that your employer and other persons in the workplace may not subject you to uninvited and unwelcome, offensive or abusive conduct because you are pregnant or a reason related to your pregnancy.

Under FEHA, you have a right to ask for accommodations at work and your employer may have an obligation to provide those accommodations if your employer has five (5) or more employees. What this means is that if you need a change in how you work in order to continue doing your regular job safely while pregnant, your employer generally must provide you with that accommodation unless it would create an undue hardship on your employer. An accommodation could be temporarily:

• Allowing you to work from home;
• Altering your break schedule so you can rest or use the restroom (for example, allowing you to take your break at an earlier time, or allowing you to take a longer break or more breaks than usually permitted);
• Reassigning some of your non-essential, physically demanding tasks to a coworker;
• Altering your work schedule so you can start your shift at an earlier or later time, or allowing you to work fewer hours per day; or
• Providing you with ergonomic office furniture or allowing you to sit or stand as needed.

If you are unable to perform your regular job for a pregnancy-related reason even with an accommodation, a possible accommodation would be to assign you to another, less strenuous or hazardous position for which you are qualified or can be trained to perform, and which you could perform while pregnant or with your pregnancy-related condition.

If you cannot work at all because of a pregnancy-related reason, or you need time off for pre-natal or post-natal medical appointments, you may qualify for an unpaid leave of absence of up to four months under California Pregnancy Disability Leave (see California Code of Regulations, Title 2, Section 11042). A four (4) month leave of absence in this context means time off for the number of days or hours you would normally work within four (4) calendar months. The leave can be taken in one continuous four-month period of time, or on an intermittent or reduced work schedule basis. All employers with five (5) or more employees are obligated to grant you pregnancy disability leave if you are disabled by pregnancy or need time off related to your disability. Leave taken under Pregnancy Disability Leave may be paid if your employer has a policy providing for paid leave.

If you exercise your right to take Pregnancy Disability Leave, when you are no longer disabled by pregnancy and return to work, your employer generally must reinstate you to your same job position or, if your position has been eliminated, to a comparable position (see California Code of Regulations, Title 2, Section 11043).

Your employer must maintain and pay for your group health coverage, if it normally pays for such coverage, while you are on pregnancy disability leave (see California Code of Regulations, Title 2, Section 11044(c)).

In addition to an unpaid four (4) month leave of absence under California Pregnancy Disability Leave as described above, you may also be entitled to an unpaid leave of absence of up to twelve (12) workweeks under the California Family Rights Act (CFRA) for your pregnancy-related disability or the birth of your child. To qualify for CFRA, your employer must have five (5) or more employees and you must have worked at least 1,250 hours for your employer in the twelve (12) months before the leave begins. Therefore, an employee may take an unpaid four month leave of absence under California Pregnancy Disability Leave, followed by an unpaid leave of absence of up to 12 workweeks under the CFRA, for a total leave amount of approximately seven (7) months.

If you have taken California Pregnancy Disability Leave, but you need a longer period of unpaid leave and you do not qualify for CFRA, you may nonetheless be entitled to an unpaid leave of absence as a reasonable accommodation under FEHA.

You may be entitled to state disability insurance benefits while on California Pregnancy Disability Leave, CFRA leave, or a leave of absence provided as a reasonable accommodation under FEHA. You may also be entitled to receive benefit payments for up to eight (8) weeks under California Paid Family Leave.

If you believe your employer or former employer has violated your rights because of your pregnancy, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact Us via our online form.