Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Alexander M. Sperry | California Employer Update | Aug 20, 2010

Employees returning to work after pregnancy or adopting a child face complex challenges. The elusive “work-life balance” is difficult to achieve, and circumstances can create the need for additional time off and other issues. We discussed workplace laws protecting pregnant employees in a previous article. Here, we focus on employers’ post-pregnancy obligations.

Pregnancy Disability

Employers with five or more employees—and state and local government employers, regardless of size—must grant pregnant employees up to four calendar months of leave for disability due to pregnancy, including childbirth. But, protected pregnancy disability leave (PDL) doesn’t automatically end when the pregnancy does.

Most health care providers certify pregnant employees as disabled for between six and eight weeks post-delivery. The post-delivery disability period varies, depending on the method of delivery and any complications.

What happens if an employee’s disability due to pregnancy or childbirth continues beyond the four months of PDL?

Assuming the employee also used up other statutorily required leave, such as time off under the California Family Rights Act (CFRA), is the employee entitled to additional time off as a reasonable accommodation under the California Fair Employment and Housing Act (FEHA)?

Maybe: Under the FEHA, a qualified employee with a disability is entitled to a reasonable accommodation, and additional leave is one form of reasonable accommodation. Employers must treat an employee disabled by pregnancy who seeks extended leave the same as other, temporarily disabled employees. Therefore, employers with leave policies more generous than PDL should apply them to pregnancy disability.

Some employers take the position that the Legislature put a “cap” of four calendar months on PDL so why should additional time off beyond the four months be required. That argument certainly has appeal, particularly for small employers who may be able to claim “undue hardship” in having a worker out longer than four months.

Undue hardship is determined on a case-by-case basis. It may take into account the cost of an accommodation, or the disruption of the accommodation may case in the workplace.

Although disability due to pregnancy is a temporary condition, the FEHA does not limit the definition of “disability” to permanent or long-term impairments. Even under the Americans with Disabilities Act, severe complications from pregnancy may be considered a disability, especially given the newly enacted ADA Amendments Act.

In one unpublished decision (Eroh v. M.T. Serv., 2006 Cal. App. Unpub. LEXIS 716 (Cal. App. 4th Dist. Jan. 26, 2006)), the Fourth District Court of Appeal ruled that a disability due to pregnancy or childbirth could be covered by the general anti-disability discrimination provisions in the FEHA.

The employer did prevail by adequately accommodating the employee’s requests for accommodation. Until there is some definitive case law or a statutory amendment, it is not safe to make any assumptions about whether leave beyond four months is required or not.

“Bonding” Leave

Employers covered by the Family and Medical Leave Act (“FMLA”) and the CFRA generally must approve up to 12 weeks of “bonding” leave to parents during the first year after a baby is born, adopted, or placed with the employee for foster care. Under the CFRA, bonding leave can be taken intermittently, in a minimum of two-week increments, although an employee may take bonding of less than two weeks no more than twice during the 12-month bonding period.

The actual amount of bonding leave available will depend on whether the employee used any CFRA leave in the past 12 months for a reason unrelated to pregnancy or childbirth. If an employee took three weeks of FMLA/CFRA to care for her ailing father in the prior 12 months, then she would only have nine weeks of bonding leave available to her under the CFRA.

Remember: PDL and CFRA do not run concurrently, but PDL and FMLA do. So, if the same employee was disabled by pregnancy/childbirth for a total of eight weeks—two weeks before delivery and six weeks after—then the nine weeks of bonding leave would be counted as nine weeks of CFRA and four weeks of FMLA because the employee already used eight weeks of FMLA.

Employers generally may (and should!) request at least 30 days notice of the need for bonding leave. Notice is only required if the time off is “foreseeable.” For example, if a parent suddenly has to watch a new baby because the daycare provider is unavailable for several days, notice may not be possible. That said, employees cannot simply decide to take a bonding day whenever they choose because they must comply with the 30-day notice requirement in the absence of an emergency or extraordinary circumstance.

Kin Care Leave

Children sometimes require medical treatment, and employees are entitled to take time off to care for them. Under California Labor Code section 233, employees must be permitted to use up to one-half of their annual sick leave or paid time off (PTO) accrual to care for a family member, including a child. Aside from kin care leave, the FMLA and CFRA guarantee time off for covered employees to assist in caring for a child’s serious health condition.

No “Light Duty”

Under PDL, an employer may transfer a pregnant employee to another position that can better accommodate her disability. When she returns to work, however, she generally must be reinstated to her prior position. But what about parents who want “light duty” while they get used to the new baby in the house? This request is not as unusual as it may sound.

The physical demands of childbirth, the sleep deprivation resulting from waking up every couple of hours to feed and change the baby, and the added responsibilities of parenting often exhaust new parents.

Unlike pregnant employees, new parents are not entitled to light duty jobs. In fact, giving preference to new parents in terms of scheduling, work demands, out-of-town work assignments, and the like could be considered family-status discrimination against other employees.

Employers, should, however, be sensitive to the emotional needs of new parents. Referrals to Employee Assistance Programs can be helpful to reduce the workplace effects of post-partum depression and related conditions.

Lactation Accommodation

California law has long encouraged breastfeeding infants. Under the Civil Code, mothers have a right to breastfeed “in any location, public or private, except the private home or residence of another, where the mother and the child are otherwise authorized to be present.”

If your business is open the public, your visitors and customers may breastfeed on your premises.

In addition, female employees have a right to a “lactation accommodation” under the Labor Code. California law requires employers of all sizes to provide an opportunity for lactating mothers to breastfeed or express breast milk.

The recent federal health care reform bill includes breastfeeding provisions that amended the federal Fair Labor Standards Act (“FLSA”) and affects covered California employers.

Employers subject to the FLSA (i.e., employers that do business in other states as well as California or are otherwise engaged in “interstate commerce”) should review their applicable policies and practices to ensure compliance with both federal and state law.

First, employees must be given a “reasonable” amount of time for lactation. Under the federal law, breaks must be available “each time such employee has need.” California law authorizes employers to require employees to express breast milk during their regular break times. However, neither law requires time spent expressing breast to be paid.

Further, under the new federal law, the employer must provide a location “shielded from view” and “free from intrusion” that is not a bathroom. Because some employers are limited in the space available at their worksites, the location requirements of the new law may be challenging.

Employers with space limitations will need to be creative in thinking about how to comply with these rules.

Interestingly, the federal law requires lactation accommodation until the baby is one year old. California law refers to an “infant child,” but does not expressly state an age limit.

Though few lawsuits have been filed under the California lactation law, the federal standard is harder to satisfy because of the location requirements. However, employees can’t file a lawsuit under the federal law; enforcement is left to the federal Department of Labor, either through audits or employee complaints.

Employer obligations with respect to pregnant employees and new families can be confusing. To avoid liability in this area, employers should ensure their policies and practices meet legal requirements. Employers should also stay up-to-date on legal developments.