The most important question for women is whether they are, in fact, disabled by their pregnancy, the childbirth, or a related medical condition.14 In general, pregnancy itself is not considered a disability. This might include the expected due date, tasks that will need to be taken care of during the maternity leave, or contact information in the event the employer has questions while the employee is on leave. 2, 11089, subd. Code Regs., tit. Code Regs., tit. (e) [The employee shall retain employee status during the period of the pregnancy disability leave. For these reasons, I currently expect to take a total of [22 weeks] of maternity leave beginning on [December 4, 2022]. Code, 12945.2, subds. California law provides significant protections against discrimination on the basis of an employees pregnancy status. WebCalifornia return This income will be included in your federal adjusted gross income, which you report on your California return. 1996) 84 F.3d 797, 800801., Sterling Transit Co. v. Fair Employment Practice Com. Effective January 1, 2021,33 the following three requirements must be met before an employee is entitled to take child-bonding leave: If all three requirements are met, employers will usually be required to provide family leave for the purpose of child bonding to eligible employees.35, Family leave does not need to be taken all at once, but it must be completed within one year of the childs birth, adoption, or foster care placement.36, An employer can require an employee to take the leave in a minimum duration of two weeks at a time. Code Regs., tit. Code Regs., tit. . Webcalifornia law guarantees job-protected leave to eligible employees who are disabled by pregnancy, childbirth, or a related medical condition (referred to as pregnancy disability leave or pdl), and separately guarantees job-protected leave to eligible employees to bond with a new child (via birth, adoption, or foster care placement) (referred to (c); Cal. (a)(3); Cal. (g)., Swanson v. Morongo Unified School Dist. In some situations, the employee may be required to provide medical documentation that confirms the existence of the disability and the need for reasonable accommodation.99, If the disability lasts for more than a year, the employee may be required to submit medical documents substantiating the need for continued reasonable accommodations on a yearly basis.100, The Right to Pay and Benefits During Maternity Leave. But employers cannot deny maternity leave if the employee is legally entitled to take it and the employee has timely provided the required notice.113. 2, 11065, subd. California law prohibits discrimination on the basis of a womans pregnancy by employers with five or more employees.126. 2, 11008, subd. (a); Cal. Code Regs., tit. If the case goes to court, the burden is on the employee to prove that they could perform the essential functions of the job if a reasonable accommodation had been provided.86. In 2022, eligible workers can receive up to $1,357 per week for up to 6 weeks within any 12-month period.105. 2, 11069, subd. How much is paid family leave? 2, 11065, subd. ", Kari PfannensteinPaid Family Leave recipient, If youre pregnant or a mom who recently gave birth, start here to learn about Paid Family Leave (PFL). Instead, they will take a percentage of what the employee wins at the end of the case. (d)., Gov. Those workers generally fall into four categories: There are, of course, some caveats to these categories. Code, 12940, subd. compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs, and sexual behavior disorders. Code Regs., tit. The DFEH complaint process is explained in our article: How to File a Work Discrimination Complaint with Californias DFEH. If a workers pay stub shows that her employer withheld at least $300 for the SDI fund during her base eligibility period, then she may be eligible for paid leave from state funds. (c)., Cal. However, in some circumstances, California employee may still have a right to paid maternity leave. Those religious employers are thus not subject to many of Californias anti-discrimination laws.136, It is also worth noting that supervisors, managers, and coworkers are generally not personally liable for actions involving discrimination or retaliation, unless they are the actual employer.137 But employers can often be held legally responsible for discriminatory actions of supervisors and managers.138, Finally, it is worth noting that pregnancy-based harassment protections are broader than Californias protections against discrimination. Code, 12926, subd. In the event I require any additional period of maternity leave, I will provide you notice as soon as is reasonably practicable. 2, 11068, subd. Meaning, California law generally permits an employer to terminate an employee if they are unable to perform the essential functions of the job, even with a reasonable accommodation.80. Code Regs., tit. 2, 11068, subd. Under California law, eligible employees have a right to take up to 12 weeks of family leave per year.29 This leave can be used by both men and women to bond with a new child after its birth, adoption, or foster care placement with the employee.30, To maximize the employees total period of maternity leave, this leave can be taken after she uses any pregnancy disability leave to which she may be entitled.31 This can allow employees to take up to seven months of maternity leave per pregnancy, depending on the duration of her pregnancy-related disabilities.32. . I am currently [12 weeks] pregnant and my baby is due on [January 1, 2023]. In fact, the entire letter should be modified to suit the particular employees situation, as well as the employees eligibility for Californias maternity leave laws. Family, Medical, and Pregnancy Disability Leave. (2014) 232 Cal.App.4th 954, 971 [an employers failure to properly engage in the process is separate from the failure to reasonably accommodate an employees disability and gives rise to an independent cause of action]., Cal. Even if the facts are strong, an experienced employment law attorney can sometimes help by: Of course, there is no guarantee that a lawyer will be able to accomplish these things. Code, 2655, subd. 2, 11044, subd. (a), (b)(3)(A) [applying to employers with five or more employees]., Cal. .], (q)., Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228, fn. 2, 11069., Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195., Cal. The law can be complex and very few cases are straightforward. (m)(1)(B)(ii) [A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.]., Gov. Am I Eligible for Disability Insurance Benefits? (d), 12945, subd. (d)., Gov. 2, 11065, subd. 2, 11065, subd. (e)(1)(A); Lui v. San Francisco (2012) 211 Cal.App.4th 962, 972., See, e.g., Gov. (e)., Gov. To be entitled to disability leave as a form of a reasonable accommodation, the employer must know about the employees disability.120 An employer knows an employee has a disability when: The employer does not need to know the legal significance of the condition, but it must at least know of the facts underlying the conditions existence and its impact on the employees work.122, The employee should make sure the employer is on notice of the disability and the potential need for an accommodation, unless the disability and resulting limitations are obvious.123, The same is true if the employee wishes to engage in an interactive process to determine an appropriate accommodation: The employee must initiate the process unless his or her disability and the resulting limitations are obvious.124, The easiest path is usually for the employee to clearly and directly inform the employer. 2, 11043, subd. So employees concerned about being forced to use their accrued time off should check with their employer. Common examples of unlawful pregnancy discrimination in the employment context include: To prove that an employer engaged in unlawful discrimination, the employee or job applicant will have the burden of proving certain facts.132 These facts are called elements of the claim. WebTo be eligible for PFL benefit payments, you must have: Welcomed a new child into the family in the past 12 months through birth. [Citation.] If the employee has gone through the administrative process and has been issued a right-to-sue letter from the DFEH, the employee with then have one year to file a lawsuit in civil court against the employer.160 This one-year clock starts ticking on the date the right-to-sue letter is issued. So the factors courts will consider may vary from case to case.89, An employer is required to engage in an interactive process with employees to determine whether reasonable accommodation is available.90 This is generally an informal process with the employee or the employees employment lawyer, where the parties attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.91, An employer who fails to engage in this process violates the law.92 The employers participation must be timely and in good faith.93 If the process fails, responsibility rests with the party who failed to participate in good faith.94, In some situations, the employer may request medical information to confirm the existence of the employees disability.95 If this happens, the employer has a duty to keep that information confidential.96 There are exceptions to this duty for certain supervisors, managers, government officials, and safety personnel.97. Kyle D. Smith is an associate of Melmed Law Group P.C. Code Regs., tit. Code Regs., tit. For example, certain religious nonprofit associations and corporations are not considered employers for these purposes. WebCalifornia law (PDL) allows you take up to four months of job protected disability leave per pregnancy. The employer is a person or business that regularly employs five or more people, The employer is a person or business who acts as an agent, The employer is a state or local governmental entity.. 1383 (Opens in new window), which significantly expanded family and medical leave rights for California employees. (a) [The right to take a pregnancy disability leave under Government Code section 12945 and these regulations is separate and distinct from the right to take leave under the California Family Rights Act (CFRA), Government Code sections 12945.1 and 12945.2.]., See Gov. Code Regs., tit. 2, 11035, subd. (p)(2); Cal. (c) [It is an unlawful employment practice for an employer to refuse to grant pregnancy disability leave to an employee disabled by pregnancy.]., Cal. (a)(1)., Cal. Californias ban on pregnancy-based harassment applies to employers of any sizeeven those that employ fewer than five people.139 Similarly, supervisors, managers, and coworkers can be held personally liable for actions involving pregnancy harassment.140. (a)(2)(A) [An employee is entitled to reinstatement even if the employee has been replaced or the employees position has been restructured to accommodate the employees absence.]., Cal. and takes his cases through Melmed Law Group P.C. There are, of course, exceptions to these time limits. Code, 3301 [No more than six weeks of family temporary disability insurance benefits shall be paid within any 12-month period.]., Unemp. During this recovery time, women are still considered disabled by their pregnancy for the purposes of Californias pregnancy disability leave lawas long as, in the opinion of her doctor, she is unable to perform one or more of the essential functions of her job because of childbirth.18. (f)., Gov. (a)., On September 17, 2020, Governor Gavin Newsom signed Senate Bill No. If the employee was hired specifically for his or her skill or expertise in performing a highly-specialized function, then it may be essential.. If you require legal advice, you should contact a lawyer to advise you personally about your situation. (f); Cal. Code, 2655, subd. The words in [brackets] contain sample text and should be modified to reflect the specific facts of the employees situation. 2, 11008, subd. . Code Regs., tit. Ins. (a)., Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54., Cal. Print, sign and date the PDF document and attach the appropriate departmental Code Regs., tit. . (j)(4), (j)(5)., Cal. The employees base eligibility period is the 12-month period ending the quarter before the SDI claim starts. Maternity leave is the time a woman takes off from her job for the birth, adoption, or foster care placement of her new child. The right to pay during leave, however, is distinct from the right to take leave in the first place. Handling Violations of Maternity Leave Rights. The right to take time off work is meaningless if there will be no job for the employee when they return. Employees wishing to take maternity leave must provide their employer with a reasonable notice of their need for the leave.111 At a minimum, the notice should include the following information: As a courtesy, this notice usually comes in the form of a request. Code, 2295.) (m)(4), (m)(5)., Cal. . (e)(3)., Green v. State (2007) 42 Cal.4th 254, 258 [[T]he FEHA requires employees to prove that they are qualified individuals under the statute just as the federal ADA requires.]; Cal. In doing so, the employees statements cannot be vaguethey must be explicit enough to for the employer to understand the facts relevant to the employees work-related needs.125, The Right to Be Free from Pregnancy Discrimination, Pregnancy discrimination occurs when a pregnant employee or job applicant receives less favorable treatment because of their pregnancy. This website and its content are not intended to be relied on as legal advice, and should not be relied on as such. It is often a good idea for employees to discuss their case with an employment lawyer. The employer may not retaliate against them for doing so.162. To be eligible for PFL benefit payments, you must have: VisitEligibility Requirementsto learn more about qualifying for PFL. ", Stephany ValdezPaid Family Leave recipient, "It is difficult to explain how meaningful and important the bonding time was for me and my family. (j)(1); Cal. When an employee decides to sue their employer for violating Californias maternity leave laws, they must first file a written complaint with Californias Department of Fair Employment and Housing (the DFEH).156 Employees pursuing a claim related to maternity leave violations cannot go straight to court with a lawsuit.157. Code, 12926, subd. The terms or privileged of their employment, During hiring (or before taking applications if recruiting materials are discriminatory),. (d)(9)(A) [Disability does not include:. Code, 12926, subd. 2, 11068, subd. Code Regs., tit. In other words, if an employer pays employees who are on temporary disability for conditions unrelated to pregnancy or birth, they are also required to pay employees during some or all of their maternity leave. Marginal functions are those that could be performed by another employee or could be performed in a different way.84 A function is also considered marginal if the employer would need someone with the employees position even if the function was not being performed by that position.85. In cases involving pregnancy discrimination, the elements are as follows: The next few sections will take a closer look at each of these elements. WebFollow your departmental process and procedures to request the time off as entered in the calculator. Jensen v. Wells Fargo (2000) 85 Cal.App.4th 245, 263, Importantly, however, leaves of absence should usually be treated as a last resort by employers.79, An employer is only required to provide a reasonable accommodation if the accommodation would enable the employee to perform the essential functions of a job. Employees are not required to have a lawyer to file a claim against their employer. If you think youre eligible for PFL, file a claim.