This week’s question comes from Trish W in West Portal who asks; “I am pregnant and have never been in a situation where I have had to ask for any accommodation or time off for injury. I am having bad morning sickness but I go into work anyways so I don’t get in trouble. What are my rights, how much time can I take off, when can I take it off.”
California Administrative Code 11042 states that all employers must provide a leave of up to four months, as needed, for the period(s) 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 defines what “disabled by pregnancy” means: if, in the opinion of her health care provider, a woman is because of her pregnancy unable to perform one or more of the essential functions at all or without undue risk to herself, to her pregnancy’s successful completion, or to other persons she is “disabled by pregnancy.” An employee also may be considered to be 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” is time off for the number of days or hours the employee would normally work within four calendar months (one-third of a year or 17 1/3 weeks). For a full time employee who works 40 hours per week, “four months” means 693 hours of leave entitlement, based on 40 hours per week times 17 1/3 weeks. For those who work more or less than 40 hours per week, or on variable work schedules, the number of working days considered as four months is calculated on a pro rata or proportional basis i.e., if you work fewer than 40 hours regularly then you would be entitled to less than the 693 hours a full time employee would be entitled to.
Pregnant employees do not need to take all of their leave at one time. They may take “intermittent leave” meaning a day or week here and there, or work a reduced work schedule (in your case it may be half days off as you are sick in the morning). Taking intermittent leave throughout an employee’s pregnancy will reduce the number of hours remaining that an employee is entitled to take before and after childbirth. For example, in the case of a full time 40hr per week employee entitled to 693 working hours of leave who 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, to a 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 the 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).
Trish, I hope this helps you understand your rights. There are many more pregnancy related laws and regulations. We will be holding our free annual pregnancy rights workshop soon at our office on Market Street in S.F. Keep an eye on this column or email help@dolanlawfirm.com so you can know the date and time.
Speak To a Pregnancy Discrimination Attorney Today
If you believe that you are being discriminated against or harassed because of your pregnancy, contact us online or call 415-636-8160 for a free case evaluation.
People who have suffered unlawful conduct in California in violation of their rights under the Fair Employment and Housing Act (such as discrimination or harassment based on membership in a protected classification) must file a complaint with the Department of Fair Employment and Housing (DFEH) generally within one year of the conduct (there are limited exceptions) or they may lose their right to pursue legal action.
