Extended Such an individual also is an employee of the temporary service agency with regard to such terms, conditions and privileges of employment under the control of the temporary service agency.]., See, e.g., Gov. Contacting any attorneys or law firm mentioned on this website, without more, does not create an attorney-client relationship. (j)(1); Cal. Employees may have a different pregnancy or childbirth-related condition that would be considered disabling enough to qualify them for maternity leave. Code Regs., tit. Most employees have a guaranteed right to be reinstated with their employer when they return from family leave.38 This is true even if the employees position was restructured or replaced to accommodate the employees absence.39, The right to reinstatement means that the employee is entitled to the same or a comparable position.40 If the employer chooses to reinstate the employee in a different position, the new position must be equivalent to the employees former position in terms of pay, benefits, shift, schedule, geographic location, and working conditions, including privileges, perquisites, and status.41, The new position must also involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.42, Additionally, if an employee returns to the job and is no longer qualified for the job due to missing training or other events which happened while she was off work, she must be afforded a reasonable opportunity to fulfill those key requirements.43, Taking Leave as a Reasonable Accommodation, California law prohibits covered employers from discriminating against employees on the basis of their physical or mental disabilities.44 This protection extends to women that are disabled as a result of their pregnancy.45, As part of the rule against discrimination, California law imposes a duty on covered employers to make reasonable accommodations for employees with disabilities.46 A reasonable accommodation is an adjustment to the employees work environment that can enable the employee to perform the essential functions of the job.47, Importantly for the purposes of maternity leave, a reasonable accommodation can sometimes include a period of leave, even after other types of leave have been exhausted.48. Similarly, there is no minimum length of service requirement to qualify for pregnancy disability leave, so even recently-hired employees can take it.25 Additionally, transgender employees with pregnancy related disabilities are specifically protected.26. Code, 12926, subd. 2, 11069, subd. 2, 11090, subd. The DFEH complaint process is explained in our article: How to File a Work Discrimination Complaint with Californias DFEH. (e), 3301, subds. Code, 12940, subd. Common examples of unlawful pregnancy discrimination in the employment context include: To prove that an employer engaged in unlawful discrimination, the employee or job applicant will have the burden of proving certain facts.132 These facts are called elements of the claim. Code, 12926, subd. It can be a good idea to have a lawyer who is familiar with doing those things. To be entitled to disability leave as a form of a reasonable accommodation, the employer must know about the employees disability.120 An employer knows an employee has a disability when: The employer does not need to know the legal significance of the condition, but it must at least know of the facts underlying the conditions existence and its impact on the employees work.122, The employee should make sure the employer is on notice of the disability and the potential need for an accommodation, unless the disability and resulting limitations are obvious.123, The same is true if the employee wishes to engage in an interactive process to determine an appropriate accommodation: The employee must initiate the process unless his or her disability and the resulting limitations are obvious.124, The easiest path is usually for the employee to clearly and directly inform the employer. 2, 11008, subd. and takes his cases through Melmed Law Group P.C. 2, 11065, subd. (a); Cal. Code, 12945, subd. Please allow this letter to serve as a request to take maternity leave. . (a) [An applicant or employee has the burden of proof to establish that the applicant or employee is a qualified individual capable of performing the essential functions of the job with or without reasonable accommodation.]., Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 947; Cal. The nature and cost of the accommodation needed, The impact that the accommodation will likely have on the employers business operations, and. WebPaid Family Leave (PFL) provides short-term wage replacement benefits to eligible California workers for up to eight weeks of family leave in a 12 month period. 2, 11035, subd. To prevent employers from trying to cut off a womans benefits in retaliation for taking maternity leave, the law makes it illegal to impose new requirements for a woman to receive benefits. (f); Cal. Code, 12945.2, subds. Code Regs., tit. California law prohibits discrimination on the basis of a womans pregnancy by employers with five or more employees.126. So the factors courts will consider may vary from case to case.89, An employer is required to engage in an interactive process with employees to determine whether reasonable accommodation is available.90 This is generally an informal process with the employee or the employees employment lawyer, where the parties attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.91, An employer who fails to engage in this process violates the law.92 The employers participation must be timely and in good faith.93 If the process fails, responsibility rests with the party who failed to participate in good faith.94, In some situations, the employer may request medical information to confirm the existence of the employees disability.95 If this happens, the employer has a duty to keep that information confidential.96 There are exceptions to this duty for certain supervisors, managers, government officials, and safety personnel.97. It goes without saying that childbirth is a physically-strenuous experience. (a) [Pregnancy disability leave does not need to be taken in one continuous period of time.]., Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1339 [Under section 12940, a woman disabled by pregnancy is entitled to the protections afforded any other disabled employeea reasonable accommodation that does not impose an undue hardship on her employer.]; Cal. 2, 11091, subd. (2014) 232 Cal.App.4th 954, 971., Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236237., Johnson Controls v. Fair Employment & Hous. The words in [brackets] contain sample text and should be modified to reflect the specific facts of the employees situation. Benefits must be resumed upon the employees reinstatement in the same manner and at the same levels as provided when the leave began, without any new qualification period, physical exam, or other qualifying provisions.]., Unemp. 2, 11050, subd. In total, I expect to take [22 weeks] of maternity leave beginning on [December 4, 2022], as described below. 2, 11068, subd. WebIt didn't feel right that there isn't an simple-to-understand way for women to easily get priceless information about their maternity leave benefits & entitlements. (a)., Gov. 2, 11035, subd. Marginal functions are those that could be performed by another employee or could be performed in a different way.84 A function is also considered marginal if the employer would need someone with the employees position even if the function was not being performed by that position.85. This section reflects those changes, which began taking effect on January 1, 2021., Gov. 2, 11069, subd. Code Regs., tit. The most important question for women is whether they are, in fact, disabled by their pregnancy, the childbirth, or a related medical condition.14 In general, pregnancy itself is not considered a disability. (a)(2); Cal. Those religious employers are thus not subject to Californias pregnancy disability leave law.23. If this article was helpful, you already know you can trust us. Collecting all legally-relevant information. During this recovery time, women are still considered disabled by their pregnancy for the purposes of Californias pregnancy disability leave lawas long as, in the opinion of her doctor, she is unable to perform one or more of the essential functions of her job because of childbirth.18. (m)(1)(B)(ii) [A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.]., Gov. 2, 11046, subd. (j)(4)(A) [defining employer to include any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, for the purposes of harassment]; Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1217 [FEHAs prohibition against harassment is not limited to employers of five or more persons. (Civ. (c); Cal. However, in some circumstances, California employee may still have a right to paid maternity leave. Code, 12926, subd. In general, this website is an advertisement for attorney Kyle D. Smith. Code, 12940, subds. Code Regs., tit. If everything goes as expected, I will be returning to work on [May 7, 2023]. Print, sign and date the PDF document and attach the appropriate departmental Code, 12945.2, subd. Welcomed a new child into the family in the past 12 months through birth. . Tracking maternity leave. Webtools for expecting parents Plan your finances for your new baby! Thus, in order to prove an ADA claim, a plaintiff must prove the employer had knowledge of the employees disability when the adverse employment decision was made.]., Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887., Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1013; Cal. As such, California law has adopted strong reinstatement protections for employees returning from pregnancy disability leave. Code Regs., tit. Vaginal or c-section. (m) [making it unlawful [f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.]., Gov. 2, 11050, subd. To schedule a free, fully confidential review of your employment law case, please contact our law firm online or call (818) 844-5200 today. (d), 12940, subd. Nor is an employer required to accommodate disabilities that would endanger the employees health or the health of their coworkers.75. . (b) [In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorneys fees and costs, including expert witness fees.]., Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724; Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 90 [Before a person may file a civil complaint alleging a violation of this statute, he or she must first file an administrative claim with the DFEH.]., Gov. During maternity leave, employees have a right to use any vacation pay, sick pay, or other paid time off they have accrued with their employer.106 In some cases, an employer can even force them to do so. (d) [CFRA leave taken for reason of the birth, adoption, or foster care placement of a child of the employee does not have to be taken in one continuous period of time. If youre pregnant or a mom who recently gave birth, start here to learn about Paid Family Leave (PFL). 2, 11008, subd. (a), (b)(3)(A) [applying to employers with five or more employees]., Cal. 2, 11089, subd. 2, 11069., Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195., Cal. 2, 11065, subd. If the employee is bringing claims under state law, they must first file a complaint against the employer with Californias Department of Fair Employment and Housing (the DFEH) no later than three years from the date of the alleged violation.159. If youre a foster care or adoptive mom, visitPFL for Adoptive or Foster Parents. Work Discrimination complaint with Californias DFEH may have a different pregnancy or childbirth-related condition would! An employer required to accommodate disabilities that would endanger the employees situation period of time those things PDF and. On January 1, 2021., Gov one continuous period of time business., and business operations, and sample text and should be modified reflect. Who recently gave birth, start here to learn about paid family leave ( PFL ) pregnancy or condition... 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