Episode 221- Common Mistakes to Avoid With California’s Pregnancy Disability Leave

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel for Labor and Employment with the California Chamber of Commerce. Hello listeners. Without a doubt, one of the most complex compliance issues for employers, especially smaller employers, is how to work with employees who are either pregnant or their partner is pregnant or has just given birth. What makes this issue so complicated is several things, but one is really that it touches on several different rules. In addition, there's also these background discrimination protections that we have under both federal and California law. And as a result of that whole ball of wax, employers just have very difficult time kind of managing the situation. And because of that, they can often make mistakes, some that are unlawful or in some cases they're actually providing more than what was required under the law that they didn't really have to provide to the employee if they didn't want to, but they weren't aware of that. So to address these top mistakes that we see in these issues, we welcome back Erica Barbara, Cal Chambers Senior Employment Law Council thank you for being here today. Erica.

Hi Matt. Thanks for having me. This is really an important topic to discuss. It impacts virtually all employers at some point or another and the laws that are at play raise so many questions. So we routinely get calls on the helpline from members about pregnancy leave. It could be an employer who's dealing with their first pregnant employee and they don't even know where to start. Or even for folks who have been through it before, every pregn employee has a different experience with their pregnancy and their childbirth, which means that every pregnancy leave that we handle is going to be a little bit different. Yeah.

And really just to highlight that, a long time ago I worked for a firm that was very small, a law firm that was incredibly small, and one of our employees was pregnant. I hadn't entered the field of employment law yet and the firm's owner came to me and said, what do I have to give this employee because they're pregnant? We're a really small firm and I want to make sure that I give her what she wants, but also not what she's not entitled to. That was a real eye opening experience for me. And then of course, when I got into employment law, I recognized, oh wow, this is like a real issue for small businesses especially. So this is gonna be a great conversation. And we have several tricky issues to walk through. By way of brief introduction though, just to knock this out, California law provides a specific pregnancy related disability leave for employees that may allow for up to four months of job protected time off. Now the first issue, of course, that pops up on an employee's first day of employment, and that is when an employee can actually qualify for the leave related to pregnancy related issues. So, Erica, at what point can somebody start to, like, look at the ability to take this specific four months of job protected leave?

Yeah. So this often takes employers by surprise. There is no eligibility requirement for pregnancy disability leave. Employees are eligible for leave from the moment that they're hired. Now, the pregnancy disability leave law applies if you have five or more employees. So again, virtually all employers are going to be covered by this law, except for those that are very, very small. And the law is applicable as soon as the employee is hired. And there's more than just the leave that's available under the law. The law also requires that employers provide pregnant employees with reasonable accommodations and transfers if they're needed due to their pregnancy. So it's so important for employers to be aware of all of these obligations and the fact that they kick in from the moment the employee is hired.

Yeah. And related to this, because of course, we have this issue where as soon as they're hired, they become eligible for all of these protections. We get a common frustration from employers, and that is we weren't aware of their pregnant condition when we hired them. They didn't say anything during the interview. We didn't notice anything physically, of course. And then all of a sudden we get this thrown on us like a week into their employment. Isn't this something that an applicant or a new hire should or have to disclose to the employer so that way we can be aware of it? Or is there anything that an employer would be able to do about this in the hiring process? Really? That is, can we evaluate this up front before they become our employee?

Yeah. So there is no requirement that an applicant disclose their pregnancy during the interview process or before they're hired. And in fact, we don't want them to do that because pregnancy is a protected characteristic under the law. And we can't make any employment decisions, including whether to hire someone based on a protected characteristic. So if an applicant shared during the hiring process that she was pregnant, you can't consider it. And if you do, you're creating the risk of a discrimination claim because we have those protections against discrimination in California and federal law. So instead, you would evaluate the applicant just as you would any other applicant, to determine if the applicant was qualified for the position without considering the pregnancy. It just can't be a factor at all in the decision whether to hire the person.

Okay, understood. So. Well, we have this pregnant employee now with us, and now we understand all of our obligations with regards to that. Something that we see frequently from pregnant employees is that they just have a desire to stop working on their own at some period of time. And, you know, from my own personal experience, you know, we see this where a pregnant employee is like, you know what, I just want, like the last four weeks off before my due date to nest at home, to get everything ready to prepare myself for childbirth. I don't want to have to worry about work, and I'm just going to take myself out. And because of these protections, employers are just confused about what that means for them. So what are an employee's rights pertaining to leave during pregnancy? That is, when do they actually get this leave?

Yeah, so a common misconception that employees have is that they get an automatic four months of leave when they're having a baby and that they get to decide when they're going to take that leave. This is not necessarily the case for all employees. What pregnancy disability leave provides is up to four months of leave when an employee is disabled by pregnancy. Now, employees can be disabled by pregnancy both before the baby is born and after, and they can even be disabled early in the pregnancy if, for instance, are having a high risk pregnancy and they need to be on bed rest early on. We don't have to rely on the employee telling us when she needs or wants to be off work. Instead, what we do is we require medical certification confirming the need for leave. So the employee's health care provider is going to indicate when the leave is going to start. So when is the employee going to be disabled by pregnancy? Generally at some period of time before the anticipated due date and then how long it'll last. So for some period of time after the baby is born, and this is really a best practice for employers to require a medical certification. And just know that if you do require medical certification, you need to be consistent and do so for all of your pregnant employees. We're not going to do it for some employees and not for other ones. But as I mentioned at the outset, every pregnant employee's experience will be a little bit different. And so we don't want to make assumptions about how much time an employee is going to need. Employees may be able to work until right before their due date, and others may have to stop working at some point earlier. And the same goes for recovery from childbirth. Some employees may be ready to return to work after six weeks and others may need longer, especially if there's complications from the birth or the recovery is taking longer. So we should never assume that all pregnant employees are only going to need a certain amount of time off. Like the numbers that get thrown around often are two to four weeks before birth and six to eight weeks after. Those may be the typical timeframes, but every employee is going to be different and we're going to rely on that medical certification from the doctor to confirm the scope of the leave that's going to be needed.

Yeah, highlighting those typical timeframes is I think, really important because what I had often seen is the employer just, they say, I've got this pregnant employee, they're eight months into term. It just makes sense to me that they get these last four weeks off because that's just how it's always been. And so they just give it to the employee. But the reason they're calling me is because they don't know when their employee is supposed to come back. And I would ask them, do you have a medical cert? And they said, no, just let her go after, you know, four weeks before her due date. And I said, well, that's the problem. We don't know what it is we're supposed to provide to them without the MedsERT because that's the only reason they get the leave. So I think that's really important to highlight. Don't stick on just those typical timeframes. Let the doctors know, tell you what it is that they're supposed to have. All right, so you said all these pregnancies can be different. That's absolutely true. Some of them, as you mentioned, may require a lengthy period of time off, especially if they become disabled by pregnancy very early in term. So what, what happens when an employee has a medical need for more time off for a pregnancy related condition and has actually used up all four months?

Yeah, that's a great question. And that's another one that we often get on the helpline. So if an employee has used up all four months of PDL of pregnancy disability leave and is still unable to work, and this could be either before the birth or after the birth, then we transition away from pregnancy disability leave and we get into reasonable accommodations. So we need to engage in the interactive process with the employee and assess whether additional leave would be a reasonable accommodation. This situation typically arises when we have an employee who maybe had a high risk pregnancy and wasn't able to work early in the pregnancy. She could then end up exhausting her leave before the baby is even born or shortly thereafter. There's also leave under cfra, the California Family Rights Act. But that's not going to come into play until after the employee is no longer disabled by pregnancy. So at this point, when the employee can't work because of the pregnancy, we're looking at either pregnancy disability leave or additional time off as an accommodation.

Okay, it's good that you mentioned CFRA or the California Family Rights act as it pertains to child bonding, because once the child is born and the parent is home with the child, isn't that what they are doing? So why isn't it a situation where if they still have a medical need for leave under pdl, and maybe it's exhausted or maybe it hasn't, why don't we switch it over to cfra? Because that's what it's for, bonding in that purpose and the child's born. So aren't we done with pdl?

Yeah. So that's another misconception about pdl, that it ends when the baby is born. Right? Well, there's no more pregnancy. So there's no more pregnancy disability leave. But that's not true. So pregnancy disability leave continues after the baby is born because an employee will continue to be disabled for some period after childbirth, when the employee is recovering after childbirth. That is included within this definition of disabled by pregnancy. Employees are not going to be able to return to work immediately. They're not going to stop being disabled as soon as a baby is born. So in a typical pregnancy with no complications, maybe recovery from childbirth will take around six to eight weeks. But again, we're going to rely on the employee's medical certification and not make any assumptions about how long that they need to be out to recover. And it's not until they are recovered and their pregnancy disability leave has ended that we switch over into cfra. One other thing to consider, though, is that medical certifications can change. So an employee's doctor may have said she'd be able to return to work after, let's say it was six weeks, but then she has complications and her leave needs to be extended. So in that case, we'd ask for an updated medical certification that confirms the need for additional leave. So just keep that on your radar. So now we get to the point where PDL has ended up. The employee is no longer disabled by pregnancy. That's when they can take child bonding leave. Now, everybody is not entitled to child bonding leave. This leave is available to employees under the California Family Rights act, the cfra, and the Federal Family and Medical Leave act, fmla. And unlike pdl, there are eligibility requirements for Employees to take bonding leave. So Both SEFRA and FMLA require that employees have worked for 12 months before taking leave and have worked for 1200.

In the 12 months before leave begins. FMLA adds an additional requirement that the employee work at a work site with 50 or more employees in a 75 mile radius. But if the employee is eligible under these laws, then they get 12 weeks of bonding leave. And so if you're doing the math along with me, that means that a pregnant employee could potentially take up to seven months of leave, up to four months of pdl, and then an additional three months of bonding leave.

Okay, great point to sit right there. That seven months is a jarring number, right? Because it's a long period of time to be without an employee. And as a result, employers often do two things. They either bring a whole other person in to do this on maybe a temporary basis to do the job for the employee that's out for this reason, or instead, if they think they can do it, they may just eliminate some duties for now. We can live without those duties for now, but then all the other ones that we can't live without, we just spread out to the rest of our workforce. And during that time, employers often discover that the may be a better employee or that by way of spreading those duties out, we actually don't really need that employee. So is it possible to just move on from them under those circumstances or is there a particular obligation to return them to work?

Yeah, so pregnancy disability leave is job protected leave. So is bonding leave. And we must return the employee to the same position that they were in when they went out on leave, or what the law refers to as a comparable position. But that really means a position that's virtually identical in terms of pay, duties, schedule, shift, everything. So we have to do that even if we hired someone to fill the position while the employee was out on leave, or even if while they were out on leave like you mentioned, we realized we can get the work done without them there. We need to bring them back. That is the job protected nature of this leave. Now, if you are unable to return the employee to the same position for some reason, you should definitely reach out to legal counsel and have a discussion with them about why it is you're not bringing the employee back from this job protected leave.

Alright, Erica, this was an awesome discussion. I know we touched on some major sticking points and errors that we see in managing this lead, but really we've just scratched the surface of full compliance with these issues and have barely touched on child bonding and how that whole ball of wax works. So do you have any other resources that you'd recommend for employers who are looking for more information in this area?

Of course, we've got all sorts of things. So we're actually taking a deep dive into managing pregnancy and bonding leave in a live webinar on April 17 from 10 to 11:30. That will give listeners a chance to hear more about the issues that we've talked about today and also ask us questions of the employment law experts presenting the webinar. For those listeners who are Cal Chamber members, we also have a wealth of resources for managing pregnancy and bonding leave on HR California. And then lastly, if you have access to the labor law helpline, feel free to give us a call. We love talking to members about all things pregnancy leave, so we're here to help you kind of navigate this often tricky area of leave law.

Well, excellent. Thank you Erica for participating in this discussion with me and as you said, helping employers navigate this tricky area around pregnancy disability leave.

Happy to be here. Thanks Matt.

And thank you listeners for joining this discussion on the workplace. Please share and subscribe to Cal Chambers podcast by visiting Cal Chamber.com.