The Right to Disability Leave
Pregnant women in California who work for an employer with five or more employees are legally entitled to a pregnancy disability leave (PDL). Every employee that meets this criteria is entitled to up to four months of leave per pregnancy, regardless of how long they worked for the employer before getting pregnant. Women do not need to take this leave of absence all at once, so they can split up the four months throughout their pregnancy if needed.
Some women may qualify for an even longer disability leave. A disability leave can be extended past the standard four months if the employer’s policy is more generous than the one required by law. For example, let’s say an employer offers employees up to five months of disability leave. In this case, the employer must allow up to five months of PDL even though the law only requires them to offer four months.
If an employer’s policy is not as generous as the one required by law, the employer must comply with the law anyways. This means an employer that offers other disabled employees three months of time off must still offer pregnant and disabled employees up to four months off.
How to Request Disability Leave
It’s best to let your employer know about your pregnancy-related disability as soon as possible. Ideally, employers would like to receive 30-days notice of your PDL. But, employers must understand that this is not possible in emergency situations where the woman’s health or the health of her baby are at risk. If you are in this type of situation, an employer cannot retaliate against you simply because you could not give them 30-days notice.
Many employers will ask anyone who is requesting PDL to provide medical proof of their disability from their healthcare provider. This is a normal request, and your healthcare provider should be happy to help.
After talking to your employer about taking a PDL, ask them to provide you with a written guarantee that you will be able to return to the same job at the end of your leave. Having this in writing is important in case your employer refuses to comply with the law and protect your job while you are on leave.
Terms of the Disability Leave
What should pregnant women expect during their PDL? Unfortunately, even though employers are required to provide women with PDLs, they are not required to pay pregnant women who are on disability leave. However, employers must pay pregnant women on disability leave if they offer paid leave to other temporarily disabled workers. Women do have the option of using some or all of their sick time so they can be compensated during a portion of their disability leave. Employers can also require women to use their sick time, however they cannot tell a woman on PDL to use her vacation time.
Employers may not be required to pay women who are on PDLs, but they are required to continue to provide them with the same benefits they receive while actively working. This means an employer cannot cut off your health insurance or exclude you from retirement or pension plans while you are on PDL.
What Happens When I Return to Work After Disability Leave?
No one should ever worry about losing their job simply because they were on disability leave. Luckily, the law protects the jobs of women who are on PDL. When returning from a PDL, women should resume working in the position they held prior to leaving. But, there are a few exceptions to this rule. The law allows employers to move some employees to different positions after they return from a PDL. However, the new position must be comparable to the position the employee previously held. For example, if the employer laid off the employees in the pregnant woman’s department while she was on leave, they could reassign her to a comparable position when she returns to work.
Some employers may argue that it is not only impossible for the employee to return to her previous position, but it is also impossible to move her to a comparable position. To avoid legal trouble, employers must be able to prove that there are no comparable positions available. This means there are no positions that the employee qualifies for that are open when she is ready to return to work, or within 60 days of this date.
The employee’s return date is usually discussed when she is requesting PDL. If this is not discussed, the employee must let her employer know when she is ready to return to work. Once the employer has been notified, they have two business days to prepare for the employee’s return.
These laws were established to ensure that employers cannot discriminate against pregnant employees. Have you been discriminated against in the workplace because of your pregnancy? If so, seek legal representation from an experienced employment law attorney as soon as possible. The team of employment law attorneys at Shegerian & Associates are ready to seek justice against your employer and recover compensation on your behalf. Contact us today by calling 1-800-GOT-FIRED.