Pregnancy Discrimination

Federal Law

Title VII sex discrimination includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. Federal law requires that women affected by pregnancy, childbirth, or related medical conditions be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

FEHA prohibits employment discrimination based on pregnancy, childbirth, or related medical condition. FEHA requires employers to make reasonable accommodations for employees who request them, with the advice of health care providers, for pregnancy, childbirth, or related medical conditions. Employment discrimination based on pregnancy, childbirth, or related medical conditions, constitutes sex discrimination. In this context, medical conditions related to pregnancy and childbirth does not include indirectly related conditions.

FEHA requires employers who have a policy, practice, or collective bargaining agreement authorizing or requiring the transfer of temporarily disabled employees to less strenuous or hazardous positions, to transfer temporarily disabled or pregnant employees to less strenuous or hazardous positions for the duration of the disability if the employee so requests. If the employer does not have such a policy, practice, or collective bargaining agreement provision, it is required to transfer a pregnant employee to a less strenuous or hazardous position for the duration of her pregnancy if the employee so requests, with the advice of her physician, and if the transfer can be reasonably accommodated. However, employers are not required to meet this requirement by creating additional employment that would not otherwise have been created, by discharging any employee, by transferring any employee with more seniority, or by promoting any employee who is not qualified to perform the job.

Pregnancy Leave

Although Title VII prohibits pregnancy discrimination, it does not provide for pregnancy leaves of absence. Under FEHA, however, pregnant employees have the right to take a leave of absence for a reasonable period of time, not to exceed four months. A reasonable period of time is the period during which the employee is disabled on account of pregnancy, childbirth, or related medical conditions. The employee may also use any accrued vacation leave during that period of time. The leave need not be taken in one period of time; it may be taken intermittently, depending upon the pregnant employee's medical condition. An employer may require any employee who plans to take a pregnancy leave to give the employer reasonable notice of the date the leave will commence and its estimated duration.

An employee who is disabled by pregnancy, childbirth, or related medical conditions may also qualify for leave under the Federal Family and Medical Leave Act of 1993.

Family Care and Medical Leave

Both the California Family Rights Act (CFRA), which is a part of FEHA, and the Federal Family and Medical Leave Act of 1993 (FMLA), contain virtually identical requirements. Employers with fifty or more employees must grant unpaid family care and medical leave under certain circumstances.

Permissible Purposes of Leave

For purposes of the CFRA, family care and medical leave means any of the following:

• Leave for the birth of a child of the employee;
• The placement of a child with an employee in connection with the adoption or foster care of the child by the employee;
• The serious health condition of a child of the employee;
• Leave to care for a parent or spouse who has a serious health condition; or
• Leave because of an employee's own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, child birth, or related medical conditions.

For these purposes, a child is defined as a biological, adopted, or foster child, a stepchild, or a child of a person serving as the guardian of a child who is either under eighteen years of age, or an adult dependent child. A parent is defined as a biological, foster, or adoptive parent, a stepparent, or other person who acted as a guardian to the employee when the employee was a child.

A serious health condition means an illness, injury, impairment, or physical or mental condition that involves either of the following:

• Inpatient care in a hospital, hospice, or residential health care facility; or
• Continuing treatment or continuing supervision by a health care provider.

The CFRA permits an employer to require that a request for leave based on a serious health condition be supported by certification, containing specified information, issued by a health care provider. In the case of leave requests based on the employee's own serious health condition, the CFRA provides a procedure by which an employer may challenge the validity of the certification provided by the employee.

Covered Employers and Employees

An employer under the CFRA is any person who directly employs fifty or more persons to perform services for a wage or salary, as well as the state, any political or civil subdivision of the state, and cities.

An employee is not covered by the CFRA unless the employee has more than twelve months of service with the employer and at least one thousand two hundred fifty hours of service with the employer during the previous twelve-month period.

Although employers with fifty or more employees are covered by the CFRA, an employer is not required to grant a request for family care and medical leave by an employee if the employer employs fewer than fifty employees within seventy-five miles of the worksite where the employee is employed.

Amount of Leave Entitlement; Relationship to Pregnancy and FMLA Leave

The maximum amount of family care and medical leave that an employee may take under the CFRA is a total of twelve workweeks during any twelve-month period. An employee is entitled to take, in addition to leave provided for under the CFRA, the pregnancy leave provided for if the employee is otherwise qualified for that leave.

If both parents are employed by the same employer and qualify for leave under the CFRA, the employer need not provide family care leave in connection with the birth, adoption, or foster care placement of a child that would allow the parents leave that totals more than twelve workweeks in a twelve-month period.

Leave under the CFRA may be taken in one or more periods.

The FMLA does not supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established by the FMLA. However, under the CFRA, leave taken by an employee under the CFRA runs concurrently with any leave taken under the FMLA, except for leave taken under the FMLA for disability on account of pregnancy, childbirth, or related medical conditions. The aggregate amount of leave taken under the CFRA or the FMLA, or both except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions, may not exceed twelve workweeks in a twelve-month period. Furthermore, the twelve-month period during which twelve workweeks of leave may be taken under the CFRA runs concurrently with the twelve-month period under the FMLA and commences on the date that leave taken under the FMLA commences.

Notice of Leave

If an employee's need for a leave under the CFRA is foreseeable, the employee must provide the employer with reasonable advance notice of the need for the leave. If the need for leave is foreseeable due to a planned medical treatment or supervision, the employee must make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the person requiring the treatment or supervision.

To invoke the employee's rights under the CFRA, the employee's notice need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA. However, the employee must state the reason for the requested leave that brings the request within the scope of the CFRA.

Substitution of Accrued Paid Leave

The CFRA does not require the employer to provide paid family care and medical leave. However, an employee taking leave permitted by the CFRA may elect, or an employer may require the employee, to substitute the employee's accrued vacation leave or other accrued time off, or any other paid or unpaid time off negotiated with the employer, for the leave allowed under the CFRA. If an employee takes a leave because of the employee's own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the CFRA leave. An employee may not, however, use sick leave during the a period of leave taken in connection with the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and employee.

Continuation of Benefits During Leave

The employer is required to maintain and pay for coverage under a group health plan for the duration of any leave taken under the CFRA or the FMLA at the level and under the conditions that coverage would have been provided if the employee had remained in employment continuously for the duration of the leave. The continuation of health benefits is not required to exceed twelve workweeks in a twelve-month period, beginning on the date that leave taken under the FMLA commences, although the employer is not prohibited from maintaining and paying for coverage under a group health plan beyond twelve workweeks. The employer is permitted to recover premiums paid for health benefits provided during family care and medical leave if (1) the employee fails to return to work after the period of leave to which the employee is entitled expires, and (2) the employee's failure to return from the leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under the CFRA, or for other circumstances beyond the employee's control.

An employee taking family care and medical leave is also entitled to participate in other employee benefit plans, including life, short-term or long-term disability, or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans, to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than family care and medical leave. In the absence of those conditions, the employee continues to be entitled to participate in these plans. In the case of health and welfare employee benefit plans, including group medical, life, short-term or long-term disability or accident insurance, or other similar plans, the employer may, at its discretion, require the employee, as a condition of continued coverage during the leave, to pay premiums at the group rate during the time not covered by any accrued vacation leave, any other accrued time off, or any other paid or unpaid time off negotiated with the employer. However, nonpayment of premiums does not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employment benefit plan.

Retention of Seniority and Restoration to Position

During a family care and medical leave period, the employee retains employee status with the employer, and the leave does not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan. An employee returning from leave returns with no less seniority than the employee had when the leave commenced for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.

Generally, the employer is required, on granting the leave request, to provide the employee with a guarantee of employment in the same or a comparable position on termination of the leave. However, an employer may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following conditions apply:

• The employee is a salaried employee who is among the highest paid ten percent of the employer's employees who are employed within seventy-five miles of the worksite at which the employee is employed;
• The refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer; and
• The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines that the refusal is necessary under the previous paragraph.

If the leave has already commenced, the employer must give the employee a reasonable opportunity to return to work following the notice of intent to refuse reinstatement.

It is an unlawful employment practice under FEHA for an employer to refuse to grant a request for family care and medical leave to which an employee is entitled under the CFRA, or to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of (1) the individual's exercise of the right to family care and medical leave under the CFRA, or (2) the individual's giving information or testimony regarding his or her own family care and medical leave, or another person's family care and medical leave, in any inquiry or proceeding related to rights guaranteed under the CFRA.

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