Pregnancy disability leave is time off work a woman takes while "disabled" as a result of her pregnancy or the birth of a child. In California, an employee who is disabled as a result of a pregnancy can take up to 4 months of pregnancy disability leave so long as she remains disabled.
Employees may also be entitled to post-child-birth leave under Califonia's leave laws for new parents.
This type of leave is available in California when two requirements are met:
- the employee is disabled by:
- childbirth, or
- a related medical condition; and
- the employer is covered by California's pregnancy disability leave law.
A woman is disabled by her pregnancy if:
- in the opinion of her physician,
- she is unable to perform one or more of the essential job functions of her job
- because of her pregnancy.
Under California law, employers required to provide pregnancy disability leave include employers:
- who regularly employ 5 or more people,
- who -- whether a person or business -- act as an agent of a covered employer, or
- who are state or local governmental entities.
Certain religious nonprofit associations and corporations may not be considered "employers" for purposes of pregnancy disability leave.
Below, our California employment and labor lawyers discuss the following questions employees frequently ask about pregnancy disability leave:
- 1. What is pregnancy disability leave?
- 2. What is a disability?
- 3. What types of employers must comply with the pregnancy disability leave law?
- 4. Will I be able to get my old job back after I come back from leave?
Pregnancy disability leave is:
- time off work that a woman takes,
- as a result of a pregnancy-related disability,
- for as long as the disability continues.
This time off of work is designed to protect the health of the mother and the unborn baby when "mom" is unable to perform her "essential job functions."
A disability related to pregnancy exists when:
- in the opinion of her doctor,
- the employee is unable to perform one or more essential job functions of her position,
- because of her pregnancy. 1
At around week 36 of the pregnancy, it is very common for women to begin to experience issues that can rise to the level of a disability.
There are many different types of issues that may cause an employee to be unable to perform her job. Some of the most common examples are:
- extreme morning sickness,
- doctor-ordered bed rest,
- diabetes (gestational),
- post-partum depression,
- emotional recovery from miscarriage, or
- pregnancy-induced hypertension. 2
This list is not exclusive. So long as the employee is unable to perform at least one essential job function, she is considered disabled under California law.
Yes. Unlike many other laws concerning leave, part-time employees are eligible for pregnancy disability leave. A minimum number of hours is not required in order to be eligible.
Even brand new employees are eligible for leave if they have a disability.
Employers are required to provide pregnancy disability leave if:
- the employer regularly employs 5 or more people;
- the employer is a person or business who is an agent of a covered employer; 3 or
- the employer is a state or local governmental entity.
Certain private religious associations or corporations organized for profit are not considered employers under the law. As a result, they are not required to provide pregnancy disability leave. 4
Employees who take time off of work as a result of a pregnancy-related disability are entitled to:
- return to their same position; or
- be placed in a position comparable to their old position.
Most employees are able to return to their prior position, but sometimes that is not possible.
4.1 What happens if I am moved to a new position?
If an employee is not given his or her exact same job back after leave, the position must be comparable. This means:
- the same hourly rate or salary;
- the same benefits;
- similar or identical duties;
- similar experience and education requirements; and
- no "demotion" as part of the change.
In some cases, employees agree to be moved to a new position for their own reasons or because the new position offers:
- better benefits,
- higher pay, or
- other beneficial opportunities.
4.2 Are there exceptions to this rule?
In limited circumstances, an employee can be laid off during pregnancy disability leave. 5 These include situations where:
- there are mass layoffs occurring during the employee's leave;
- the position was set to be eliminated at a preset time and is wholly unrelated to the employee being on leave; or
- there is no comparable position available.
These exceptions are strictly limited. California law sets forth strong protections for employees who take leave and exceptions to the right to take leave are rare.
5. Can I get paid during leave?
Employers are not required to pay an employee during his or her leave in most circumstances. Employers are required to maintain:
- full medical coverage, and
- all other health benefits.
It is also possible, depending on the circumstances, that an employee could receive compensation from:
- California's short-term disability insurance (SDI) program;
- temporary disability pay (if the employee has it through his or her employer); or
- employee's accrued leave for sick days, vacation pay, or other paid time off.
If you are unsure about what you may qualify for, your employment attorney at the Shouse Law Group can help you get the compensation you deserve.
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- Cal. Code of Regs., tit. 2, § 11035(f).
- Cal. Code of Regs., tit. 2, § 11035(f).
- Cal. Civ. Code § 2295. (An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.)
- Cal. Gov. Code § 12926(d). 12926(d).
- Cal. Code Regs. § 11043(a)(c).