Q: “I am pregnant, it’s my first time and I don’t know what my rights are. I am afraid I will lose my job. I have started having morning sickness but I go into work so I don’t get in trouble. What are my rights, how much time can I take off, when can I take it off?”
A: California Administrative Code 11042 states that all employers must provide a leave of up to four months, as needed, for the period of time an employee is actually disabled because of pregnancy, even if an employer has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees.
Administrative Code Section 1103.5 states that a woman is disabled by pregnancy if — in the opinion of her health care provider — she is unable, because of pregnancy, to perform any of the essential functions of her job or these functions without undue risk to herself, her pregnancy’s successful completion or to other people. An employee also may be considered disabled by pregnancy if — in the opinion of her health-care provider — she is suffering from severe morning sickness or needs to take time off for: prenatal or postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, childbirth, loss or end of pregnancy, or recovery from childbirth, loss or end of pregnancy.
According to Section 11042 a four-month leave means time off for the number of days or hours the employee would normally work within four calendar months (a third of the year or 17¹⁄³ weeks).
For a full-time employee who works 40 hours per week, four months means 693 hours of leave entitlement. For employees who work more or less than 40 hours per week or who work on variable work schedules, the number of working days that constitutes four months is calculated on a pro rata or proportional basis.
Although all pregnant employees are eligible for up to four months of leave, if that leave is taken in one period of time, taking intermittent or reduced work schedule throughout an employee’s pregnancy will reduce the number of hours remaining that an employee is entitled to take pregnancy disability leave leading up to and after childbirth. For example, a full-time employee who normally works a 40-hour work week is entitled to 693 working hours of leave.
For example, if a full-time employee takes 180 hours of intermittent leave throughout her pregnancy, she would still be entitled to take 513 hours, or approximately three months leading up to and after her childbirth.
Section 11035 provides that, with limited exception, an employee who exercises her right to take pregnancy disability leave is guaranteed a right to return to the same position, or comparable position, and the employer shall provide the guarantee in writing upon request of the employee. It is an unlawful employment practice for any employer, after granting a requested pregnancy disability leave or transfer, to refuse to honor its guarantee of reinstatement.
An employee has no greater right to reinstatement to the same position, or to other benefits and conditions of employment, than those rights she would have had if she had been continuously at work during the pregnancy disability leave or transfer period. This is true even if the employer has given the employee a written guarantee of reinstatement.
A refusal to reinstate the employee to her same position or duties is justified if the employer proves, by a preponderance of evidence, that the employee would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking pregnancy disability leave or transfer (such as a layoff pursuant to a plant closure).
Jenni, I hope this helps you understand your rights. There are many more pregnancy related laws and regulations.
I will provide more information next week.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.