Pregnancy Discrimination in the Workplace: Laws for Time off and Reinstatement

Even though female employees are eligible for Pregnancy Disability Leave from their first day on the job, they must have worked as least 1,250 hours in the past 12 months to take additional leave under the California Family Rights Act (CFRA). The third important act to remember is the federal Family Medical Leave Act (FMLA), which is leave provided for employees disabled by pregnancy or pregnancy-related issues. When an employer illegally prevents an employee from taking such leave, it is a form of Pregnancy Discrimination.

While the CFRA and FMLA are similar and may overlap for some employees, it is usually dependent on how many employees the business has in order to qualify for each. To lay things out as generally as possible, a California employee could take 4 months PDL leave, 12 weeks FMLA leave and additional time for “baby bonding” under CFRA.

Under Pregnancy Disability Leave, employers with 5 or more employees must provide up to four months of leave for employees disabled by pregnancy and pregnancy-related conditions. Although employers are not required to pay wages during Pregnancy Disability Leave (unless that employer pays wages for other types of disability leave), most benefits and the accrual of seniority must continue. The only exception to this is that employers are not required to continue health benefits during Pregnancy Disability Leave, unless there are limited circumstances. As mentioned above, the employee can take up to 4 months of Pregnancy Disability Leave, either as one single chunk of time or broken down into a combination of shorter periods.

The FMLA provides leave for employees disabled by pregnancy or pregnancy-related issues. The CFRA, on the other hand, does not provide for such leaves. Both the FMLA and CFRA cover private employers with 50 or more employees on the payroll during each of any 20 or more calendar weeks in the current calendar year or the preceding calendar year, and all public employers, regardless of the number of employees. Employees may take up to 12 workweeks of family leave in a 12-month period, as one single chunk of time or broken down into a combination of shorter periods. They may also create a reduced work schedule, where he/she works fewer hours per day and counts those hours toward the 12-week entitlement.

A couple of random details are as follows: (1) If both the mother and father work for the same employer and wish to have more “baby bonding,” the employer may limit them to 12 weeks combined time off. However, FMLA specifies the two must be “husband and wife,” while the CRFA states the two can be “parents” regardless of whether or not they are married.

When an employee is ready to return to work after Pregnancy Disability Leave, FMLA and/or CRFA, the employer must reinstate her to the original position or a comparable position. Regarding Pregnancy Disability Leave, there must be legitimate business reasons if reinstatement is denied. Finally, under FMLA and CRFA, the employer can only refuse to honor the reinstatement guarantee under very limited circumstances.