We have received several inquiries regarding a pregnant employee's rights to medical leave during pregnancy and maternity leave post birth. The simple answer is: an employer cannot discriminate, terminate, or otherwise take adverse action against a pregnant worker or new mother.
Employers sometimes treat their pregnant employees or newborn mothers with hostility, demote or transfer them to lesser jobs, fail to promote them or provide them with the benefits or stock they are entitled to based on their seniority. Actions like this are usually illegal.
That is because there are numerous of California and the federal laws designed to protect employees from discrimination or termination when they need to take pregnancy and/or maternity leave. These laws include the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), the Pregnancy Discrimination Act (PDA), the Pregnancy Disability Leave law (PDL), the American's with Disabilities Act (ADA), and the Fair Employment and Housing Act (FEHA). Many pregnant employees or new mothers are protected under these laws.
A woman cannot be discriminated against based on pregnancy when it comes to any aspect of employment, including: hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.
For example, we were recently contacted regarding a company's policy of stopping the vesting of stock options during pregnancy disability leave and maternity leave. The policy noted that any unpaid leave that lasted longer than three weeks resulted in the ceasing of any stock option vesting. Our view is that the policy is extremely discriminatory and would disproportionately affect women on maternity leave.
Employees need not worry about challenging any type of policy they feel violates their rights to take disability or maternity leave. It is illegal to retaliate against someone who protests to their supervisors about potential violations of their rights, even if the action in question turns out to be legal.
If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer must treat her in the same way as it treats any other temporarily disabled employee. The employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave.
Additionally, impairments resulting from pregnancy (e.g., gestational diabetes or preeclampsia) are most likely disabilities under the Americans with Disabilities Act (ADA) or the Fair Employment and Housing Act (FEHA). An employer may have to provide a reasonable accommodation such as leave or modifications that enable an employee to perform her job for a disability related to pregnancy.
Under California's PDL, an employee may take up to 4 months of job-protected time off. After the baby is born, the employee may then take up to an additional 12 weeks months of job-protected time off under the FMLA or CFRA. An employee cannot be terminated or have some adverse employment action taken against her because of her use of this protected leave.
While the FMLA does not require employees to accrue seniority, California's corresponding CFRA law does. During the period of CFRA leave, an employee is entitled to accrual of seniority and to participate in 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 would apply to any other leave granted by the employer for any reason other than CFRA leave.