Question: My employee just informed me that she’s pregnant. What do I do now? Do I have to give her paid leave? Can I let her go? What else do I need to know?
In California, there are a few laws that give rights to a pregnant employee, and every employer should be aware of which laws apply to your business. Here are some laws that might apply during and after pregnancy:
Pregnancy Disability Leave:
Pregnancy Disability Leave (PDL) may apply if your workplace employs 5 or more people. If the employee is disabled by the pregnancy, childbirth, or related condition, the employer is required to give them up to four months of unpaid, job-protected leave. It does not have to be taken all at once. A disability may be present if her pregnancy, according to her doctor, causes her to be unable to perform any of the essential functions of the job. Because of this definition, the pregnancy itself is not automatically considered a disability, but as the pregnancy progresses, most pregnancies result in a legal disability as they near childbirth, and all will typically be considered to have a disability for at least six weeks after birth.
Family and Medical Leave:
If an employer employs 5 or more people, the workplace may be required to provide up to 12 weeks job-protected leave for Family and Bonding Time to employees who have worked there for more than 12 months and who worked at least 1,250 hours in the past year. All parents — not just the parent who birthed the child — are eligible to receive this family bonding time, and it is also available for children who have joined the family via adoption or foster care placement. It may be taken by an employee after the employee used any pregnancy disability leave. The leave does not need to be taken all at once.
Employers who have five or more employees are required to provide reasonable accommodations for an employee’s physical or mental disabilities, including pregnancy-related disabilities. Leave from work may be considered a reasonable accommodation depending on the circumstances of the employee’s situation. Please see the section below on reasonable accommodations for more information.
If an employee is eligible for all of these types of leaves and chooses to take them consecutively, they may be able to use up to seven months of leave per pregnancy, and possibly more if a reasonable accommodation leave is required.
Generally, employers are not required to provide paid leave to pregnant employees or new parents. However, the parent may be entitled to benefits from the California’s State Disability Insurance (SDI) fund and Paid Family Leave, both administered by the Employment Development Department. (If your workplace is in San Francisco, click here for info on SF’s Paid Parental Leave Ordinance.)
California requires that all employees provide employees with paid sick leave. The law provides certain minimums (which may differ based on your city). If the employee has any sick leave accrued, you must allow them to use it. Employers must also allow the employee to use any other accrued vacation pay or paid time off.
Businesses that have five or more employees are required to provide reasonable accommodations to any employee with a qualifying mental or physical disability if the disability interferes with their ability to perform at least one essential function of their job; it will differ depending on the job and the disability. A reasonable accommodation is an adjustment to the work environment that allows the employee to perform the essential functions. Unpaid leave may be considered a reasonable accommodation, but is usually considered a last resort. Accommodations are not required if it would cause the employer an undue hardship.
All employers are required to provide reasonable accommodation for employees who want to express breast milk at work. This includes reasonable break time and use of a private place (other than a bathroom). The room must be safe, clean, contain a surface to place personal items on, contain seating, and have access to electricity. The employer must also provide the employee with access to a sink and a suitable refrigerator to store breast milk close to the employee’s workspace.
Pregnancy discrimination and harassment:
If a workplace has 5 or more employees, California law prohibits discrimination against an employee based on their pregnancy. This includes refusal to hire a potential employee because she is pregnant or may someday become pregnant, refusing to provide reasonable accommodations, or dsicrimination based on the need to breastfeed.
All employers are prohibited from harassing employees due to their actual or perceived pregnancy.
If you’d like to learn more, these are the laws that may apply to you:
- Pregnancy Disability Leave Act (PDL): 5+ employees; four months of leave for pregnant parent
- California Family Rights Act (CFRA): 5+ employees; 12 weeks leave for bonding with new child
- Family Medical Leave Act (FMLA): this leave runs concurrently with CFRA leave and also applies to new children; therefore, CFRA leave is usually the one that applies with an employee is pregnant, and FMLA will likely not be a concern
- Fair Employment and Housing Act (FEHA): 5+ employees; reasonable accommodations, pregnancy discrimination
- Lactation Accommodation: additional information
Written by Galia Aharoni Schmidt