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Pregnancy Disability Leave

California's pregnancy disability leave law provides for up to four months of leave for eligible female employees affected by pregnancy, childbirth, or related medical conditions. The law addresses leave eligibility, reasons for leave, and employer notice-posting requirements. Employers can require medical certification of the need for leave, and employees must provide, if possible, advance notice of need for leave.

Coverage

California's law applies to all state employers and private companies employing at least five workers on each workday in any 20 consecutive calendar weeks in the current or preceding calendar year. This summary discusses only provisions applicable to private employers. Religious associations and nonprofit religious corporations are exempt from coverage.

Eligible Employees

All female employees working for covered employers are eligible for pregnancy disability leave, except individuals employed by their parent, spouse, or child. Eligible employees can take leave for disability caused by pregnancy, childbirth, or related conditions.


Leave Account

Eligible employees can take up to four months' pregnancy disability leave. However, employers can limit leave to six weeks for a normal pregnancy, childbirth, or related condition. In addition, the maximum leave entitlement is prorated for employees who work part-time or alternative schedules.

Intermittent leave and reduced work schedules: Employees can take pregnancy disability leave on an intermittent basis or reduced work schedule.

If the federal Family and Medical Leave Act (FMLA) applies, employers can count an employee's pregnancy disability leave against her federal FMLA leave entitlement. However, pregnancy disability leave does not run concurrently with state family and medical leave. At the end of the four-month period of pregnancy disability leave, an employee eligible for state family and medical leave can request up to 12 additional weeks of leave for childbirth. Disabilities due to pregnancy or childbirth qualify for coverage under the state's temporary disability benefits law.

Medical Certification

Employers that require medical certification of the need for other types of disability leave can require a health care provider's certification of the need for pregnancy disability leave, the starting date of the leave, and its estimated duration.

Re certification: On expiration of the leave period originally estimated by a health care provider, employers can request re certification of the need for additional leave, as long as similar requirements apply to similarly situated employees.

Return-to-work certification: Employers can require that employees returning from pregnancy disability leave obtain a return-to-work release from their health care provider, as long as a similar requirement applies to employees returning to work after other types of disability leave.

Notification Requirements

Notification of need for leave: Employees must give employers at least 30 days' advance notice of the need for pregnancy disability leave, unless such notice is impossible because of a medical emergency or change in circumstances. Employers must respond to leave requests as soon as possible, but no more than 10 days after receipt.

Employers must give employees advance notice of any notification procedures applicable to pregnancy disability leave. Employers can meet this requirement by posting or distributing the state-mandated notice of pregnancy disability leave rights. Employers that fail to provide this notice cannot deny leave because of employees' failure to follow notification procedures.

Notification of pregnancy disability leave rights: Employers that publish employee handbooks must include a description of the state's pregnancy disability leave law in their handbooks.

Pay and Benefits

Paid leave substitution: Pregnancy disability leave can be unpaid, as long as other temporary disability leaves of absence also are unpaid. Employers can require substituting or employees can choose to substitute accrued sick leave for unpaid pregnancy disability leave. Employees also can elect to substitute vacation leave or any accrued paid time off for unpaid pregnancy disability leave.

Employers that have a policy providing more generous leave for other temporary disabilities than is required for pregnancy disabilities under state law must grant the more generous leave provisions to eligible employees temporarily disabled by pregnancy. However, employers with five to 14 employees can limit paid pregnancy disability leave to six weeks for a normal pregnancy, regardless of the amount of paid leave they allow for other types of disabilities.

Benefits continuation: Employees on pregnancy disability leave are entitled to continue their participation in health plans and other employee benefit plans, including life insurance, short- and long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans.

Collective bargaining agreements: Employees retain their employee status while on pregnancy disability leave. The leave cannot be treated as a break in service for purposes of seniority under collective bargaining agreements or employee benefit plans.

Returning to Work

Employees returning from approved pregnancy disability leave must be restored to their former positions or to comparable positions.

Exceptions

Employers can deny reinstatement to employees returning from pregnancy disability leave if:

Job loss would have occurred regardless of pregnancy disability leave, such as when a plant closing causes layoffs during the leave period; or

Preserving a job or duties—either by leaving the job unfilled or hiring a temporary worker to fill the job—would substantially undermine safe, efficient business operations.

Prohibited Employer Actions

Employers cannot discharge, expel, or otherwise discriminate against employees or applicants who have opposed any discriminatory employment practice regarding pregnancy disability leave or filed a complaint, testified, or assisted in an anti-discrimination proceeding. The retaliation prohibition extends to hiring, demotions, suspensions, and other employment decisions and benefits.

In addition, employers cannot:

Discharge, fine, suspend, expel, punish, refuse to hire, or otherwise discriminate against an individual for exercising her right to take pregnancy disability leave or giving any information or testimony concerning her pregnancy disability leave in any related inquiry or proceeding;

Refuse to provide health benefits for pregnancy when such benefits are available for other types of temporary disabilities;

Refuse to grant pregnancy disability leave to eligible employees; and

Harass employees because of pregnancy.

Mandatory Posters

Employers must post, in a conspicuous place at the work site, a notice outlining employees' rights to take pregnancy disability leave. If more than 10 percent of employees speak a primary language other than English, employers must translate the notice into the language(s) spoken by employees. In addition, employers are encouraged to give current employees and new hires copies of the notice and to disseminate the notice in any other way.

The state makes available two different notices that employers can use to meet their notice-posting duties. One notice discusses only pregnancy disability leave rights and can be used by employers with fewer than 50 employees that are exempt from federal and state family and medical leave laws. The other notice combines information on employees' rights to both pregnancy disability and state family and medical leave.

Administration and Enforcement

The California Department of Fair Employment and Housing administers statutory provisions regarding pregnancy disability leave and enforces statutory and regulatory provisions governing PDL.

The California Fair Employment and Housing Commission administers regulatory provisions governing PDL and enforces statutory and regulatory provisions governing PDL. The department receives and investigates complaints of PDL violations. The commission mediates complaints upon department request and holds hearings on complaints that are not resolved through conciliation.

Employers are prohibited from intentionally resisting, preventing, impeding, or interfering with the departments, commission's, or their agents' or employees' performance of duties; they also cannot conceal or destroy evidence relevant to department or commission investigations.

Employees or applicants must file PDL complaints with the department within one year from the date of alleged PDL violations; however, they can have up to 90 additional days to file a complaint if they were unaware of the violation within the original one-year timeframe. Employees or applicants who are under age 18 have up to one year after they turn age 18 to file complaints. The department also can file complaints on employees' or applicants' behalf.

Employees or applicants can withdraw complaints or the department can dismiss complaints at any time. The department investigates complaints and determines if PDL violations occurred. Once complaints are filed, the department can seek a temporary court order to stop the violation. If it finds that PDL complaints are valid, the department tries to resolve complaints by conference, conciliation, and persuasion. The department can sue employers that violate or are about to violate any agreements entered into by conference, conciliation, and persuasion to prevent or stop any unlawful practices.

If conciliation fails (or earlier if warranted), employers receive from the department a written accusation of charges of PDL violations and notice of a hearing before the commission on the alleged violations within one year from the date complaints are filed or two years if alleged violations are against a class of employees (the department must notify employers within one year after complaints are filed if the complaints are being pursued as class complaints for conciliation and accusation purposes). The department generally can withdraw accusations at any time. The commission conducts hearings to investigate and decide accusations.

If employer violations are found, the commission can issue orders including penalties or other appropriate relief; otherwise, it dismisses the accusations. In general, employers and applicants or employees can ask for commission reconsideration of orders within 20 days of the date a decision is mailed; they also can seek judicial review of commission orders. The commission itself can reconsider orders. Employers are prohibited from intentionally violating commission orders.

Compliance Review

The department conducts compliance reviews within one year after final commission orders or decisions and can sue employers to enforce compliance.

If employers do not receive a written accusation within 150 days after the complaints are filed or if the department determines earlier that hearings are not needed, employees or applicants can request a right-to-sue notice from the department. The department also can issue a right-to-sue notice, if it is not requested, upon completion of the department's investigation and within one year after the complaints are filed.

Employees or applicants generally must sue employers within one year from the date of the notice. If a written accusation includes employees' or applicants' request for monetary damages for emotional injuries resulting from the alleged PDL violations, administrative fines, or both damages and fines, employers can choose to have a court hear the complaint instead of the commission. Employers can file complaints with the department asking for assistance by conciliation or other remedial action if their employees refuse or threaten to refuse to comply with the PDL provisions.

Record Keeping Requirements

Employers must retain records relating to pregnancy disability leave complaints until the complaints are resolved and all appeals from related proceedings have concluded.

Penalties and Remedies

Upon commission findings of PDL violations, employers may be ordered to:

Stop such practices;

Hire, upgrade, or reinstate employees (with or without back pay);

Report their compliance with the commission's order;

Pay actual damages and administrative fines of up to $150,000 per employee or applicant; and

Comply with other court ordered remedies (back pay remedies can be awarded to both individual and classes of employees or applicants).

Employers that fail to post a notice outlining employees' right to take pregnancy disability leave can be ordered to provide such notice.

Employers that are sued can be ordered to:

Pay reasonable attorneys' fees and costs (including expert witness fees); and

Comply with other court ordered remedies.

Employers that violate the record keeping provisions; intentionally resist, prevent, impede, or interfere with the department's, commission's, or their agents' or employees' performance of duties; or intentionally violate commission orders are guilty of a misdemeanor and can be jailed up to six months, fined up to $1,000, or both jailed and fined.

For more information on California’s PDL contact Almond Valley Insurance Services, Inc. or you may log on to the California Fair Employment and Housing Commission website. Mandated pregnancy disability leave posters are available here.