Both federal and California laws provide numerous safeguards to protect pregnant employees before, during, and after childbirth. Protections include prohibitions against discrimination during hiring and employment, and against termination based on pregnancy or pregnancy-related conditions, even if legitimate bases also exist for the employer’s conduct. When federal and California laws differ, the employer must provide the greater protection.

General rights and protections owed to a pregnant California employee

Federal and California laws explicitly prohibit discrimination in any term or condition of employment based on pregnancy, childbirth, or other related conditions and require an employer to provide reasonable accommodations (e.g., under the Americans with Disabilities Act, job restructuring, part-time or modified work schedules, reassignment, etc.; under California’s Fair Housing and Employment Act, a temporary transfer, upon the pregnant employee’s request and her doctor’s advice, to a less strenuous or hazardous position).

But generally, neither federal law nor California law require creation of an additional otherwise unplanned position or the opening of a position by discharging another employee, transferring a more senior employee, or promoting an otherwise unqualified employee. Generally, the reasonableness of an accommodation turns on whether it creates an undue hardship, something not easily established and that may, in part, turn on the employer’s size and pocket-depth.

Additionally, both federal and California laws generally afford a pregnant employee at least 12 weeks of leave, the right to retain employer-provided health insurance during leave, and the right to return to the same or a comparable position at the leave’s conclusion.

Under the Family and Medical Leave Act (FMLA), an employer having 50 or more employees within 75 miles of the employee requesting leave must provide 12 weeks of unpaid leave for pregnancy, childbirth, and newborn-child bonding, provided the employee has been employed for at least one year and worked at least 1250 hours in the last 12 months.

Certain California employees may receive up to seven months total leave, with reinstatement to the former or comparable, position. The seven-months protection includes a 12-week leave provided by the California Family Rights Act (CFRA), which uses the same 50 employees/75 mile radius/1,250 hours worked during the previous 12 months considerations, and four months under the Pregnancy Disability Leave Law (PDL), which provides broader coverage, to employers with five or more employees regardless of hours worked or length of service.

Although the FMLA, CFRA, and PDL leaves are all unpaid, the employee may receive compensation through an employer or individual short-term disability insurance plan or State Disability Insurance (SDI) programs and Paid Family Leave (PFL) benefits.

What happens in the event of layoffs, position elimination or other termination?

Liability risks may make an employer generally hesitant to terminate a California employee who is pregnant or on pregnancy-related leave.

Although both federal and California laws prohibit discriminatory terminations, neither unconditionally prevents a discharge from employment during pregnancy or while on leave.

Employment termination is generally permissible where the employee would not otherwise have remained employed, such as in the event of a layoff or position elimination. A cautious employer may limit its exposure to unnecessary liability by considering a few concepts:

(1) Treat pregnant employees as if they were not pregnant

Pregnancy antidiscrimination laws generally aim to maintain equal treatment among employees, regardless of difference or disability. In an anticipated layoff or job elimination situation, an employer should not base any decision on pregnancy or pregnancy-related conditions, but should use only legitimate business considerations—such as attendance or disciplinary records, skills, seniority, or other legitimate factors (e.g., a collective bargaining agreement), preferably objectively verifiable.

If an employer lays off or discharges a pregnant employee for a legitimate business reason (e.g., workforce reduction) and not her pregnancy, the termination should not be problematic. That said, the prudent employer will obtain legal counsel before making such a determination.

(2) Standardize the treatment of all employees receiving disability benefits

Pregnancy antidiscrimination laws are also generally interpreted to require any pregnancy or pregnancy-related disability to be treated the same as other temporary disabilities and, in some circumstances, other temporary inabilities to work that the employer accommodates.

For instance, an employer may not exclude pregnancy from income-protection programs (e.g., disability insurance or sick pay plans) that cover other temporary disabilities. Moreover, if any employer provides longer than a four-month leave period to other short-term disabilities, it must increase the pregnancy disability period to match.

There also may be no negative discrepancies in the provision of paid leave, seniority accrual, or other benefits afforded to pregnant employees and other disabled employees.

In short, when an employer makes difficult personnel decisions to ensure effective business operation, proceeding in a standardized and equitable manner and obtaining sound legal advice should reduce liability exposure.

*This article was written by Los Angeles Summer Associate Phillip Di Tullio

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