Do's and Dont's for California Pregnancy Disability Leave (PDL)

General Rule: California Pregancy Disability Leave (PDL) applies to a business with 5 or more employees and gives an employee a right to four (4) months of unpaid pregancy leave.

If facing a possible Pregnancy Disability Leave, both employers and employees should keep in mind the following do's and dont's for PDL:

1. Pregnancy Disability Leave DOES NOT have to be continuous. (An employee can break the 4 months up but not use more than 4 months).
2. An employer DOES NOT have to give health insurance benefits (unless employer already does or some other law applies);
3. An employer CAN require employee to use accrued sick leave;
4. An Employee CAN use accrued sick leave, vacation leave, or other credits during the unpaid PDL; BUT employer CANNOT require employee use vacation or other credits during unpaid leave;
5. An Employee DOES NOT have to work any period of time to be eligible for PDL (an employee can work 1 hour on a new job and give the employer notice);
6. An Employee CAN be part time or full time and be entitled to PDL;
7. An Employee MUST be actually disabled by pregnancy, childbirth or related medical condition;
8. An Employee MUST have medical provider certify the PDL disability; 
9. An Employer MUST provide reasonable accommodation when requested with advice of employee's medical provider;
10.   An Employee MUST be unable to perform one or more essential functions of her job without undue risk to herself or other persons.
11.   An Employee HAS TO give employer at least 30 days notice before disability/transfer begins unless not possible for several reasons. Then, notice should be given as soon as practicable and should provide estimated dates of leave;  
12.   If employee wants to return earlier than thought (before 4 months runs out), employer MUST reinstate employee with 2 business days of her notice;
13.   An Employee who returns within 4 month period is GUARANTEED right to return to same position;
14.   An Employer CAN reinstate employee to comparable position if same position no is longer available due to reasons other than pregnancy. If so, employer should offer comparable job in terms of pay, location, job content, and promotional opportunities;
15.   An Employer CANNOT refuse to provide original position even if temp employee is better or even if employer found problems with performance that existed prior to her leaving.

Additional Resources

For further information, visit the California Department of Fair Employment & Housing at www.dfeh.ca.gov. Or, contact Campano Law Group at www.campanolaw.com or at 661-945-5300.

An employer cannot discriminate against you because of your disability

California Fair Employment & Housing Department (DFEH) prohibits an employer from discriminating against an employee if the employee has a disability. This brief guide will explain what you need to show that your employer has discriminated against you becaue of a disability.

 

1st: Does the employee have a disability?

The general rule of law is that a person is physically disabled under FEHA when he or she has a condition that affects a body system and that condition limits a major life activity. See California Govt. Code 12926 (k)(1)(A)(B). A "body system" includes neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. "Major life activities" include caring for one’s self, performing manual tasks, speaking, breathing, seeing, walking, hearing, learning and working.

2nd: Could you perform the essential functions of the job?

If you have a condition and it affects a major life activity, does that prevent you from performing the essential functions of the job? Keep in mind that you have to be qualified to have performed the job to begin with. If you were not qualified for the positon, your employer is not necessarily breaking the law if you have a physical disability and are denied the job. If you are asking your employer to be reassigned to a position because of a disabilty, you, the employee, have the burden to prove you were qualfiied for that reassignment. Otherwise, if you were not qualified, a court may find the employer did not discriminate against you.

3rd: Were you discriminated against because of your disability?

Last, but not least, can you, the employee, show that you were discriminated against because you have a disability. Generally, the closer in time between when your employer learns of your disability and any action taken against you will help you prove you were discriminated against because of your disability. For example: On monday your employer learns that you have a physical disability. On Tuesday, you were fired without reason. That short time between the two events helps establish you were discriminated against because of your disability.

4th: Does your employer have a defense, a valid reason for not giving you the job?

Even if you can satisfy the elements of disability discrimination it does not mean your employer is automatically at fault for discriminating against you. Your employer is allowed to present a defense to why they did what they did and still not be held to have discriminated against you. One defense an employer has is that an employer is not required to create new position or bump other employees to accommodate the disabled employee. See Rory Cuiellette v. City of Los Angeles 2011 DJDAR 5687 citing Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389; citing Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 972.

Additional Resources

If you feel you have been discriminated against at work because of a disabilty, you should either contact an employment lawyer such as the Campano Law Group. Or, go to the California Department of Fair Employment and Housing (www.dfeh.ca.gov) where you will find more information on the law.

Campano Law Group

California Department of Fair Employment & Housing