Equal Rights

Pregnancy Disability Leave Law: The Special Protections of Pregnancy Related Disability

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.

Joseph H. Ainley on Employment Discrimination

The Law Offices of Joseph H. Ainley provide services to cover all of your employment-related legal needs. The bulk of our practice is devoted to litigation in cases, for example, where the employee has been wrongfully terminated, or an individual or a group of people have been denied overtime benefits. We also offer employment counsel. Frequently, employees face a situation at work which potentially has profound consequences for them, but they are unsure how best to act. In this context, one issue that is repeatedly of concern is where an employee is offered a severance package in exchange for a release of claims that they employee may have against his or her former employer. In this situation, legal counsel can be invaluable in maximizing the amount of any severance package. Some of the specific areas in which we are pleased to offer services are the following:

Employment Discrimination

Discrimination in California on grounds of age, sex, race, age, ethnicity, disability or sexual orientation is prohibited by Government Code ßß 12926 and 12940. Each discrimination claim is unique, and whether the claim is provable or not often turns upon specific facts. It is a rare employer who openly acknowledges some form of discrimination, and the evidence of discrimination is therefore evidence from which one must usually infer a discriminatory intent by the employer. For example, an employer rarely tells an employee that he or she is being let go because ìyou are too old.î Instead, the usual process of discrimination is that the employer ìevaluates outî the unwanted employee by generating bogus negative performance reviews.

This discrimination can be combated in several ways. One of the most common means of fighting discrimination is to use statistical evidence to show an imbalance in the employees who are either being let go or who have been hired into the company in the first place. For example, an employment work force which is only 5% female may be suspect if the available work force in the relevant job category is 50% female. Statements that are not directly related to the performance of an employee can be used the discriminatory mindset of the employer. If, for example, a manager makes a general comment about a specific ethnic group, that can be used to show a discriminatory mindset towards that particular group. In cases where there is an event such as illness, extended leave of absence, or pregnancy, the plaintiff can prove his or her case by showing a reasonably close proximity in time between an adverse employment action, such as termination, or a negative performance review and the development of the illness or notification of pregnancy, for example.

In the absence of direct evidence, discrimination claims are rarely easy to prove and require a good deal of skill and effort to overcome the employerís usual claim that it did not discriminate at all, rather, the adverse employment action was merely a neutral business decision. At Ainley Law, we have the resources, skill and experience to successfully prosecute your discrimination claim, be it on grounds of age, race, gender, or other protected group.

Joseph H. Ainley on Pregnancy Discrimination

The Law Offices of Joseph H. Ainley provide services to cover all of your employment-related legal needs.  The bulk of our practice is devoted to litigation in cases, for example, where the employee has been wrongfully terminated, or an individual or a group of people have been denied overtime benefits.  We also offer employment counsel.  Frequently, employees face a situation at work which potentially has profound consequences for them, but they are unsure how best to act.  In this context, one issue that is repeatedly of concern is where an employee is offered a severance package in exchange for a release of claims that they employee may have against his or her former employer.  In this situation, legal counsel can be invaluable in maximizing the amount of any severance package.  Some of the specific areas in which we are pleased to offer services are the following:

Pregnancy Discrimination

A particularly significant subset of discrimination is pregnancy discrimination. We have found that pregnancy discrimination is rampant in many different fields. Employers who pride themselves on egalitarian practices often fall short when it comes to this particular form of discrimination. A software company, for example, that has specific milestones to meet may unhesitatingly fire an employee who announces that she is pregnant and will be taking a temporary leave of absence as guaranteed by statute. All too often, milestones in development schedules take precedence over rights guaranteed by statute. In this particular instance, the event causing the discrimination is apparent: it is the pregnancy. It is therefore relatively easy to demonstrate when an attempt to ìevaluate outî a pregnant employee begins. Our experience with these cases allowed us to compile a database of cases involving pregnancy discrimination which is a very useful tool in litigating this particular type of a case.