September is the most common birth month in the United States, making August a common time for HR professionals to be preparing for maternity leaves and other issues surrounding pregnant employees. Here are ten practical tips every California employer should know when supporting their pregnant employees:
- No Stereotyping: Pregnancy is a protected characteristic under California’s Fair Employment and Housing Act (“FEHA”), falling under the protected class of sex. Employers may not make employment decisions based on a protected characteristic, or on stereotypes about the protected characteristic. Author Lauren Groff recently went viral when she raised awareness about how popular media perpetuates stereotypes that family care is a woman’s job. Employers who make employment decisions based on similar stereotypes — perhaps believing a female employee will be “less dedicated” or be “less available” after she has a child — can quickly land themselves in hot water under the FEHA.
- Pregnancy Disability Leave: California employers with more than five employees must provide an employee with a pregnancy- or childbirth-related disability with unpaid leave for up to four months. If the employee returns within the four months, the employee must be reinstated to the same position. The employer must continue to provide health insurance benefits to the pregnant employee during their leave on the same terms as provided to other employees.
- Workplace Accommodations: While filming the 2017 hit, Wonder Woman lead Gal Gadot was five months pregnant, requiring modifications when filming some of her intense physical scenes. California law requires employers of more than five employees to provide reasonable accommodations for pregnant employees while they are at work. Reasonable workplace accommodations may include transfer to a less strenuous or hazardous position, or modifying the employee’s job duties.
- Parental Leave: Under the California Family Rights Act (“CFRA”), employers of 20 or more employees must provide employees with up to 12 weeks of parental leave to care for a newborn. Parental leave is only available to employees who are otherwise CFRA-eligible. Because a pregnancy-related disability is not a “serious health condition” under the CFRA, an employee who takes up to four months of Pregnancy Disability Leave may still be eligible for up to 12 weeks of parental leave under the CFRA. During this leave, the employee is entitled to reinstatement, and the employer must continue to provide health insurance benefits on the same terms as provided to other employees.
- Extended Leave: Recently, rapper Cardi B announced that she was dropping out of an upcoming tour because she won’t be ready physically or mentally to leave her infant daughter after only six weeks off. It is not uncommon for new parents to want to stay home beyond their job-protected leave. With healthy employees who simply choose not to return to work after their leave is exhausted, the employer is free to separate the employee. The employer might also consider offering a small amount of unpaid leave time before separating, but is not legally required to do so.
- Leave as a Reasonable Accommodation: However, some employees may need to stay home beyond their job-protected leave because they are experiencing pregnancy-related disabilities that prevent them from returning to work, just like tennis legend Serena Williams, who was bedridden for six weeks after giving birth earlier this year. Pregnancy-related disabilities may include physical limitations from birth, as in Williams’ case, or from breastfeeding, and may also include mental limitations such as depression or anxiety. If the employee’s condition meets the definition of disability under the FEHA, the employer may be required to offer unpaid leave beyond any FMLA/CFRA or Pregnancy Disability Leave that the employee has exhausted. Employers of five or more employees must engage in an interactive process with the employee to determine if additional leave would be a reasonable accommodation.
- Work Can’t Be Left Undone: The time a pregnant employee is absent from work can be trying for the employer and the employee’s co-workers. The everyday work of the business must continue, and delays can be frustrating. Employers may cover for an absent employee by hiring a temporary replacement, but must return the pregnant employee to her position if she returns within the time frame of a job-protected leave.
- Don’t Forget Dads: Although no federal law requires parental leave for fathers, California’s parental leave law applies to both parents, regardless of gender. California employers must ensure any parental leave policy is applied equally to both genders. Makeup giant Estée Lauder recently settled a case alleging that new fathers got less parental leave than new mothers for $1,000,000, proving that mistakes in this area can be costly. Providing dads with leave is not only required under California law, but can also help improve employee retention!
- Prepare for Breast Milk: Breastfeeding at work has been all over the news recently, from Sen. Tammy Duckworth being willing to breastfeed on the Senate floor, to New Zealand’s Prime Minister Jacinda Ardern breastfeeding on the floor of Parliament. When breastfeeding employees return to work, the employer must be prepared to accommodate them. Both the Fair Labor Standards Act and California law require employers to provide reasonable break time and a private place other than a bathroom for an employee to use to pump breast milk for up to one year after a child’s birth. California law may also require employers to provide other reasonable accommodations for breastfeeding.
- Donated PTO: Currently, the United States is the only developed country that does not mandate paid maternity leave at a national level. Statistics show that as few as 15% of employers offer maternity leave to their employees, and almost all of that is unpaid leave. In the modern age, families have been financing their maternity leave through the generosity of others, including by donations of PTO from co-workers. Employers should be aware of whether or not PTO donation is offered as a benefit in their employee handbook, and might consider whether implementing such a policy makes sense for the employer and employees.
Managing an expectant employee can be tough, but is far from impossible. Employers should be sure to check their handbooks and policies to ensure that employees are on notice of their rights when they are expectant and/or recently post-partum. Employers also have the right to advance notice of leave when possible, and employees must provide medical documentation to support their need for certain leaves and accommodations. When questions surrounding pregnancy-related leaves or accommodations arise, employers should consult employment counsel for detailed legal advice.
Stefanie Renaud is an associate in Hirschfeld Kraemer, LLP’s Santa Monica office. For more information, contact Stefanie at firstname.lastname@example.org.