Pregnancy Discrimination, Pregnancy Accommodations, And Pregnancy Disability Leave
- Family/Medical Leave: Caring for a Family Member
- Family/Medical Leave: Your Own Health Condition
- Taking Leave from Work: Pregnancy/Prenatal Care/Bonding with a New Child
- Paid Family Leave Benefits
Am I protected against pregnancy discrimination at my job?
Under both state and federal law, it is illegal for an employer to discriminate (meaning to treat differently or unfairly) against employees or job applicants on the basis of pregnancy, childbirth, or related medical conditions. Employers may not discriminate with respect to hiring, firing, compensation, or virtually any other aspect of employment. It is also unlawful for employers to deny women employment opportunities, including promotions and training opportunities, because they might become pregnant in the future. Additionally, under state law, an employer may not force a pregnant employee to take a leave of absence or pregnancy disability leave that she has not requested.
As discussed below, employers may be required to provide workplace accommodations and job-protected leave due to pregnancy, childbirth or related medical conditions.
Do laws prohibiting pregnancy discrimination apply to all employers?
No. Pregnancy discrimination laws apply only to workplaces with a certain number of employees. The federal Pregnancy Discrimination Act applies only to workplaces with 15 or more employees, as well as all employment agencies, apprenticeship or training programs, and labor organizations. The California Fair Employment and Housing Act applies only to workplaces with 5 or more employees, as well as all employment agencies, labor organizations, state licensing boards, and state and local governments. The number of employees in your workplace determines whether one or both of these laws apply to you and your legal rights with respect to disability leaves, returning to work, and benefits relating to pregnancy, childbirth and related conditions.
However, California law prohibits all employers with at least one employee from harassing an employee or applicant because of pregnancy or perceived pregnancy. Harassment is described in more detail in Section 12 of this fact sheet.
Under California law, employers with 5 or more employees also must provide reasonable accommodations and job-protected disability leave of up to 4 months for pregnancy, childbirth, and related conditions.
Certain employees have additional leave and return rights for health reasons or child bonding under the Family Medical Leave Act and the California Family Rights Act, which are briefly described in Section 9 and in Taking Leave From Work: Pregnancy, Prenatal Care, Bonding with a New Child.
If I’m pregnant, can my employer treat me worse than other employees who are temporarily disabled for other reasons?
No. Under state and federal law, an employer must treat a pregnant employee who is temporarily unable to perform the functions of her job due to pregnancy at least as well as other temporarily disabled employees. For example, if an employer offers paid leave to employees off work for other temporary disabilities, it must also offer paid leave to women off work due to a pregnancy-related disability.
Do I have the right to a reasonable accommodation or transfer because of pregnancy?
Yes. In California, employers with 5 or more employees are required to make medically advisable reasonable accommodations for pregnancy, such as providing a stool, additional breaks, relief from heavy lifting, or flexible scheduling to accommodate morning sickness or prenatal appointments. Employers also must make accommodations for childbirth and related conditions, including lactation accommodations for nursing mothers. These accommodations must be provided regardless of whether the employer provides accommodations to non-pregnant employees with similar conditions.
Under California law, pregnant women also may be entitled to a transfer to a less strenuous or hazardous position upon request, if the transfer can be reasonably accommodated. Your employer is not required, however, to create additional employment, discharge another employee, transfer another employee with more seniority, or promote you to a job for which you are not qualified.
The federal Pregnancy Discrimination Act provides that employers must treat pregnant employees the same as those who are not pregnant but are similar in their ability or inability to work. The federal Americans with Disabilities Act provides that employees who have impairments that substantially limit a major life activity are entitled to reasonable accommodations unless they create an undue hardship for the employer.
Do I have the right to take a leave of absence due to my pregnancy?
Yes, if your employer has five or more employees. Under California law, you are entitled to job-protected, unpaid leave for up to four months while you are disabled (unable to perform your essential job functions) by pregnancy, childbirth, or related conditions. Your physician or other licensed care provider will certify when your pregnancy disability begins and ends. Your employer must keep any medical information provided in a certification confidential. Note: For a normal pregnancy, health care providers typically certify that a woman is disabled beginning 4 weeks before her due date through 6 weeks following a vaginal delivery, or 8 weeks following a c-section.
Federal law provides that pregnant employees have the same leave rights as employees who take leave from work for other temporary disabilities. An employee’s rights with respect to pregnancy leave are therefore determined, under federal law, by the employer’s general disability leave policy, the Americans with Disabilities Act, and the Family and Medical Leave Act, if applicable.
Although the leave required by California law is unpaid, if your employer provides paid leave for other temporarily disabled employees, the same amount of paid leave must be made available to you. Also, pregnant women in California who contribute to the State Disability Insurance (SDI) program are entitled to receive partial wage replacement benefits during their pregnancy disability leave. Contact the Employment Development Department at www.edd.ca.gov for more information or to apply for SDI.
You must give your employer 30 days notice before taking a pregnancy disability leave, or before a transfer or accommodation is to begin, if the need for the leave, transfer, or accommodation is foreseeable. If you do not know approximately when the leave will begin (when the timing of the adoption or approximate due date for baby is unknown, for example), you must give notice as soon as you are able. If the need for leave, transfer, or accommodation is not foreseeable (such as in the case of a medical emergency), you must give notice as soon as possible.
Can my employer force me to take mandatory time off during my pregnancy?
No, a covered employer cannot force a pregnant employee to take a mandatory leave if she has not requested leave. Furthermore, if an employee has been absent from work for a pregnancy-related condition and recovers, her employer cannot require her to remain on leave until after the baby is born. An employee must be permitted to work at all times during pregnancy when she is able to perform her job.
Does a pregnancy disability leave have to be taken all at once?
No. Your pregnancy disability leave may be taken before and/or after the child is born, in brief increments (for morning sickness, for example), and at any time you are physically unable to work because of pregnancy, childbirth, or a related medical condition, as certified by your health care provider.
What protections do I have when I return from pregnancy leave?
California law states that when an employee returns to work after her pregnancy disability leave, she is entitled to be restored to the same position. If the same position is not available for a legitimate reason unrelated to her pregnancy or leave, she must be restored to a position that is similar in terms of pay, location, hours, content and promotional opportunities.
If your disability leave lasts longer than four months, your employer is not required to hold your job for you under the California Pregnancy Disability Leave (PDL) Law. However, pregnant employees may request leave in excess of four months as a reasonable accommodation of a disability, as defined by the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA). Under these laws, an employer may deny extended leave only if it can show that allowing a longer leave would create an undue hardship.
Federal law requires employers to provide the same rights to employees who return from pregnancy leave as they provide to employees who return from other non-pregnancy-related absences.
Do I have a right to leave to bond with my child or to care for an ill child?
Under the Family and Medical Leave Act (a federal law known as the FMLA) and the California Family Rights Act (CFRA), both male and female employees are entitled to take up to 12 weeks of unpaid leave to bond with a newborn, adopted or foster child, to care for a seriously ill child, spouse, registered domestic partner (under CFRA), or parent, or because of the employee’s own serious health condition. These laws require that an employee who takes a leave for one of these reasons be restored to the same or a equivalent position upon return. Both of these laws, however, apply only to workplaces where there are 50 or more employees within a 75-mile radius of the worksite, and to employees who have been with their employer for 1 year. (See our Fact Sheets Leave from Work to Care for a Family Member, Leave from Work: Pregnancy/Prenatal Care/Bonding with a New Child and Leave from Work for Your Own Health Condition for more information.) Please note that if both you and your spouse work for the same employer, you may be required to share a single 12 week leave entitlement between you.
What benefits am I entitled to while I am pregnant?
California law requires employers to provide continued health insurance benefits for employees during pregnancy disability leave. However, if you do not return to work following your pregnancy disability leave, you may be required to repay your employer for health insurance benefits you received during the leave unless you had a qualified reason for not returning, such as continued disability or your use of CFRA bonding leave.
Under federal law, employers with 15 or more employees are required to provide health insurance coverage for pregnancy on the same terms as it is provided for other types of medical conditions or disabilities. An employer must also provide the same benefits for absences due to pregnancy-related conditions as it provides for absences due to other temporary disabilities under any health insurance, disability insurance or sick leave plan, including the amount of leave, extensions to leave, and reinstatement.
When calculating vacation time, seniority and pay increases, your employer may not treat time spent on pregnancy leave differently than time spent on leave for other reasons. Your employer cannot return you to work with less seniority than you had at the beginning of your leave. You may request the use of your accrued vacation or sick leave during the disability period.
Are employers required to cover costs of pregnancy and childbirth?
Under California law, pregnant women must receive the same benefits or privileges of employment provided to other employees with temporary disabilities. California law also requires group health insurance policies to provide women with maternity coverage. In addition, employers must continue health insurance benefits for women who qualify for pregnancy disability leave and/or bonding leave. (See Factsheet on Taking Leave from Work: Pregnancy, Prenatal Care, Bonding with a New Child.)
Is harassment relating to pregnancy unlawful?
Harassing or unwelcome conduct relating to pregnancy, childbirth, or related conditions is unlawful when the conduct creates a hostile, intimidating, or offensive work environment, or when it interferes with your performance at work. It is also illegal to harass a woman because she is perceived to be pregnant, even if she is not. Your employer is responsible for the harassment by its supervisory employees regardless of whether the employer knew of the harassing conduct. Your employer is responsible for harassment by a co-worker (non-supervisory employee) or a third party such as a customer or client if the employer knew or should have known about the conduct and failed to take immediate and appropriate steps to correct it. The law prohibiting harassment based on pregnancy applies even to employers with only one employee.
What steps should I take if I believe I have been discriminated against or harassed because of pregnancy?
For information about pregnancy discrimination or harassment, or your rights to pregnancy accommodation, transfer or leave, contact our Work & Family Project.
If you think your employer has discriminated against or harassed you based on your pregnancy, you can file a complaint with the Equal Employment Opportunity Commission within 300 days after the earliest discriminatory act or with the California Department of Fair Employment and Housing within one year after the first discriminatory act.
Strict time limits apply. You should take action immediately if you think your rights have been violated.
Other publications regarding family/medical leave
The Legal Aid Society–Employment Law Center has produced the publications listed below to educate workers about their rights relating to family/medical leave. To request any of these publications or to get information regarding your specific legal rights, please contact our Work & Family Project or view the following fact sheets:
For further information about your employment rights, contact the Work & Family Project at 800-880-8047.