This week’s question comes from Trish W. in West Portal, who writes:
Q: “I am pregnant and have never been in a situation where I have had to ask for any accommodation or time off for injury. I am having bad morning sickness, but I go into work anyway so I don’t get in trouble. What are my rights, how much time can I take off and when can I take it off?”
A: California Administrative Code states that all employers must provide a leave of up to four months, as needed, for the period of time an employee is actually disabled because of pregnancy, even if an employer has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees.
Here’s how California Administrative Code defines “disabled by pregnancy”: If, in the opinion of her health care provider, a woman is because of her pregnancy unable to perform one or more of the essential functions at all or without undue risk to herself, to her pregnancy’s successful completion or to other persons, she is “disabled by pregnancy.”
An employee also may be considered to be disabled by pregnancy if, in the opinion of her health care provider, she is suffering from severe morning sickness or needs to take time off for: prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; childbirth; loss or end of pregnancy; or recovery from childbirth, loss or end of pregnancy.
A “four-month leave” is time off for the number of days or hours the employee would normally work within four calendar months (one-third of a year or 17 1/3 weeks). For a full-time employee who works 40 hours per week, “four months” means 693 hours of leave entitlement, based on 40 hours per week times 17 1/3 weeks. For those who work more or fewer than 40 hours per week, or on variable work schedules, the number of working days considered as four months is calculated on a proportional basis — if you work fewer than 40 hours regularly, then you would be entitled to less than the 693 hours a full-time employee would be.
Pregnant employees do not need to take all of their leave at one time. They may take “intermittent leave,” meaning a day or week here and there, or work a reduced work schedule. In your case, Trish, it may be half-days off, as you are sick in the morning.)
Taking intermittent leave throughout an employee’s pregnancy will reduce the number of hours remaining that an employee is entitled to take before and after childbirth. For example, in the case of a full-time, 40-hour-per-week employee entitled to 693 working hours of leave who takes 180 hours of intermittent leave throughout her pregnancy, she would still be entitled to take 513 hours, or approximately three months leading up to and after her childbirth.
California Administrative Code provides that, with limited exception, “an employee who exercises her right to take pregnancy disability leave is guaranteed a right to return to the same position, to a comparable position, and the employer shall provide the guarantee in writing upon request of the employee.” It is an unlawful employment practice for any employer, after granting a requested pregnancy disability leave or transfer, to refuse to honor its guarantee of reinstatement.
An employee has no greater right to reinstatement to the same position or to other benefits and conditions of employment than those rights she would have had if she had been continuously at work during the pregnancy disability leave or transfer period. This is true even if the employer has given the employee a written guarantee of reinstatement.
A refusal to reinstate the employee to her same position or duties is justified if the employer proves, by a preponderance of the evidence, that the employee would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking pregnancy disability leave or transfer, such as a layoff pursuant to a plant closure.
Trish, I hope this helps you understand your rights. There are many more pregnancy-related laws and regulations. We will be holding our free annual pregnancy rights workshop soon at our office on Market Street in San Francisco. Email firstname.lastname@example.org for the date and time.