Dec 28

Should You Expect Discrimination When You’re Expecting?

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Most pregnant women who are expecting baby girls get pink slippers. Some get pink slips. Fortunately, you don’t have to expect job discrimination when you’re expecting. California’s Pregnancy Disability Leave Law (PDLL) requires an employer with five or more regular employees to: (1) guarantee in writing that an employee can return to work once pregnancy disability leave ends; and (2) timely reinstate her to the same or comparable position – even if reinstatement would impose a significant undue hardship on him. 

What Must Your Employer Do Before You Go on Pregnancy Disability Leave? 

The PDLL entitles an employee to up to 17 1/3 weeks of leave if her pregnancy, childbirth, or related medical condition becomes a disability1, i.e., it renders her unable to perform an essential function of her job or to work without undue risk to herself or others (including her fetus).2 The PDLL deems her to have a disability if she needs time off for: (1) severe morning sickness; (2) pre- or postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, baby blues, childbirth, or the loss or end of a pregnancy; or (3) recovery from childbirth or the loss or end of a pregnancy.3

Under the PDLL, an employee has the right to reinstatement to the same position or, if the employer has a legitimate business reason that excuses his failure to reinstate her to the same position, a comparable position. But the employee may request that her employer guarantee such reinstatement in writing.4 That means the employer can grant her request for pregnancy disability leave, but if he fails to honor a request for a written guarantee of reinstatement, he violates the PDLL.5 (For an employee on intermittent leave or a reduced work schedule, the employer need only provide one written guarantee.)6

What Must Your Employer Do When You Return from Pregnancy Disability Leave?

The employee’s reinstatement must be timely. In many cases, her employer must reinstate her by the date they agreed would be her reinstatement date. But morning sickness, post-partum depression, or some other pregnancy disability can prevent an employee from returning to work by her scheduled date of reinstatement. Similarly, the employer and employee might not have agreed to a date of reinstatement. In those cases, the employer must reinstate her: (1) within two business days; or (2) as soon as possible after she notifies him that she’s ready to return to work if two business days wouldn’t be feasible.7

The type of position that an employee may return to will vary from case to case. Generally, her employer must reinstate her to the same position, unless he had to close the factory or he has a legitimate business reason not to reinstate her.8 Even then, he must reinstate her to a “comparable” position, unless: (1) he wouldn’t have offered her one had she been continuously employed during her leave; or (2) no comparable position that she’s qualified for or entitled to under company policy, contract, or collective bargaining agreement is available on her scheduled date of return or within 60 calendar days.9

Even if an employer can’t reinstate an employee to a comparable position on her scheduled date of return, he remains under an affirmative duty to notify her of all available comparable positions for 60 calendar days.10 In other words, the employee doesn’t have to remind her employer to notify her of all available comparable positions. Of course, the employer can’t just put a message in a bottle, throw it in the ocean, and hope that it washes up in front of the employee’s house. The means that the employer chooses to notify the employee must be “reasonably calculated” to reach her.11

  1. Gov. Code §12945(a)(1). 

  2. 2 CCR §11035(f). 

  3. Id

  4. 2 CCR §11043(a). 

  5. Id

  6. Id

  7. 2 CCR §11043(b)(1). 

  8. 2 CCR §11043(c)(1). 

  9. 2 CCR §11043(c)(2)(B)(1). 

  10. 2 CCR §11043(c)(2(B)(2). 

  11. Id

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.