WORKPLACE LAW -
Pregnancy Disability Leave
Question:
I run a small business on the Peninsula. I have 3 full-time employees and 5 part-time people on staff at the moment. I also have a pregnant employee who has been here for about 6 months now, and who will be having her baby this summer some time. I’m not sure what, if any, pregnancy-related laws apply to me? Also, I’m wondering if I have to provide any pregnancy-related benefits to an employee who’s been working for me for under a year?
Answer:
The laws in California with regard to pregnant employees and pregnancy leave are very specific, so it’s good that you want to clarify which rules apply to an employer of your size. Because you have at least five employees, you are subject to the Pregnancy Disability Leave (or “PDL”) laws in California. This is true in cases such as yours, where the workforce is comprised of a combination of full and part-time employees. PDL permits a female employee to take up to four months of unpaid leave for the period during which she is disabled due to pregnancy, childbirth, or a related medical condition. An employee is considered “disabled” by pregnancy if she is unable to perform the essential functions of her job due to her pregnancy or a related health condition (such as morning sickness), or because of her need for prenatal care.
There is no length of service requirement before an employee who is disabled by pregnancy is entitled to PDL. Any pregnant employee who works for you is therefore entitled to take PDL from the very first day of her employment. In addition, the four months of PDL is allowed for each pregnancy—in other words, there is no annual limit on this type of leave. An employee who has two pregnancies very close together, or who miscarries and then becomes pregnant again shortly thereafter would therefore be entitled to a new four-month period of PDL for each pregnancy. Employees may also use PDL intermittently, or on a reduced work schedule if medically advisable, as determined by their health care provider. For example, an employee with severe morning sickness would be entitled to use an hour of PDL each day to allow her to come to work later than usual. PDL may also be used for time away from work to attend prenatal medical appointments.
An employee who wishes to utilize PDL is generally required to provide medical verification from her doctor of her need for the leave. This verification should contain the date the employee became disabled due to her pregnancy, the expected duration of the leave, and an explanation of how/why the employee’s condition is preventing her from performing the essential functions of her job. A pregnant employee is required to provide at least 30 days’ notice of her need to take PDL, if the need for the leave is foreseeable. If 30 days’ notice is not possible (due to a lack of knowledge or a medical emergency), the employee is required to notify her employer as soon as possible of her need for immediate PDL. Note that in these situations, you cannot deny an employee the right to use PDL for failure to provide sufficient notice of the need to do so.
Following the conclusion of an employee’s PDL, the employee must be returned to the same position as when she went out on leave, or to a comparable position. There are a limited number of situations in which an employer may refuse to honor this reinstatement obligation, including a layoff of personnel or a compelling business need that precludes reinstatement. Note that an employer may require that an employee returning from PDL obtain a “return to work” release from her health care provider, stating that she is able to resume her regular job duties.
Following the birth of an employee’s baby and her return to work, an employer is required to accommodate that employee if she is breastfeeding and wishes to express breast milk during the workday. Employers are required by California law to provide breastfeeding employees with a private, clean area (other than a restroom) in which to express breast milk while at work. Employees may use their paid rest periods to express milk. However, if additional time is needed, that time may be unpaid.
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