Some of the most obvious discrimination in the workplace is taken against pregnant women. In response the Legislature has enacted a powerful set of protections embodied in the PDDL which creates special statutory protections for employees who become disabled as a result of pregnancy, childbirth, or a related medical condition. Gov.C. § 12945(a). These amount to “super protections” and if you are disabled by pregnancy related issues or by childbirth you can benefit from the special protections afforded under the law. The salient features include the following:
- Employees are entitled to 4 months of unpaid protected leave (your job – or a comparable position) must be preserved for four months if a doctor certifies that you are unable to carry out your essential job functions. For example, a woman suffering morning sickness is considered disabled by pregnancy, as is a woman who must take time off for prenatal care. 2 Cal.C.Regs. § 7291.2(g)
- The disability extends to 4 months even if your employer has a policy of providing less than 4 months leave for similarly situated employees with other temporary disabilities (illness, injury , etc. ). 2 Cal.C.Regs. § 7291.7(a).
- Unlike protections under the Federal Family Medical Leave Act (FMLA), 29 USC § 2611(4)(A)(i), or the State California Family Rights Act (CFRA), Gov.C. § 12945.2, there is no requirement that you have worked at least 1250 hours ( e.g.FMLA) or have been employed at least one year (CFRA ) before taking PDDL leave. 2 Cal.C.Regs. § 7297.0(e)(2)
- Because the statute is part of the broad Civil Rights protections of the Fair Employment and Housing Act (FEHA) Gov.C. § 12940 et seq., your employer must make efforts to reasonably accommodate your pregnancy related disability including offering you a transfer, adjusting your duties and schedule, and entering into good faith discussions with you regarding accommodating your disability. (Remember though that if you cannot perform your “essential job duties” the employer does not have to accommodate you – the PDDL leave benefits still apply, however.)
- An employee may, but is not required, to use accrued vacation time during her disability period. See 2 Cal.C.Regs. § 7291.11(b)(2). On the other hand, an employer may require that the employee use accrued but unused paid sick leave prior to using the PDDL leave. 2 Cal.C.Regs. § 7291.11(b)(1).
- The PDDL runs concurrently with the FMLA but importantly runs consecutively with the CFRA. Thus, if you take 4 months of PDDL leave, you may take another 12 weeks of protected leave under the CFRA. This allows you a total of 7 months protected leave in which to prepare for childbirth and bond with your baby once he or she is born. 2 Cal.C.Regs. § 7291.13(c).
- PDDL leave may be taken intermittently or on a reduced work schedule “when medically advisable as determined by the health care provider of the employee.” 2 Cal.C.Regs. § 7291.7(a)(3). Thus, the leave may taken incrementally and on an hourly basis. If, for example, an employee misses two hours of work due to morning sickness, only those two hours may be counted against the time available for her PDDL leave of 4 months. 2 Cal.C.Regs. § 7291.7(a) (2)(B).
- An employee returning from PDDL leave is entitled to all the same benefits that she had before the leave began. Leave does not constitute a break in service and she may not be deemed to have forfeited any earned seniority. 2 Cal.C.Regs. § 7291.11(c)(2).
The PDDL is a statute that confers special status on pregnancy disability. It is uniquely flexible and generous. Perhaps most important is that it can be tacked to leave available under CFRA. Working women have a powerful set of statutes that can provide up to 7 months of leave for pregnancy and childbirth. Any working woman considering taking leave due to pregnancy or to bond with their newborn should consider the benefits of invoking this statute.