Unlike years past, women no longer consider pregnancy a reason to marry, much less leave the workplace – at least not on a permanent basis. This means that there are many more women of childbearing age active in the workforce. In addition, a myriad of state and federal discrimination and leave laws have been enacted to protect pregnant employees. In fact, California, a state with five separate laws providing additional job protection for pregnant workers, enacted regulations effective in 2013. These regulations, as summarized below, further expand rights and safeguard not just pregnant workers, but employees who are “perceived” to be pregnant.
Claims for discrimination are now frequently brought by employees who believe that adverse employment action taken against them arose out of their pregnancies. Employers need to become knowledgeable about what the laws require and become much more savvy in the way they treat this increasingly larger portion of their workforce: the child bearers. The following are some general guidelines to assist well-meaning employers:
1. If a woman looks as though she may be expecting but has not made the announcement, do not ask. Always wait for her to announce the news.
2. How should you respond to news of the coming blessed event? Pregnancy is always good news! It is always a joyous, miraculous, marvelous, extraordinary event.
3. What you should never ask:
Do not, under any circumstances, say – or even agree with her if she says – that getting pregnant was stupid, wrong, ill-advised, that she will look like a house, etc.
4. What you should never do:
This is serious. A miscarriage is always a tragedy. A stillborn birth is even worse. Don't ever say it's “for the best” or it was “God’s plan” or anything to that effect. The only permissible response is "I am so very, very sorry. What can I do?" Send flowers to her home and/or a note of sympathy. Be gentle – allow time to grieve and heal.
6. Job Duties
7. When she returns to work – whether after a successful delivery or a miscarriage – be certain to make her feel welcome. Make sure she understands that you are delighted to have her back
If, prior to her leave, you were about to reprimand her, you can do so when she returns. However, proceed carefully. Allow her sufficient time to reestablish herself as well as time to remedy past performance issues. This is particularly true if those issues might have been attributable (even in part) to pregnancy side effects.
8. Do not discriminate.
The new mother or father, whether he or she is the company’s chief operating officer or a lowly go-fer, should be welcome to bring the baby to work for a “look-see,” as long as the work environment is safe, and the baby would not disrupt the parent’s work or the work of others.
Flexible schedules or telecommuting might make sense, but for employers who don’t have this provision already in place, it might need to be permitted on a case-by-case basis with the overarching consideration being whether the job lends itself to such an accommodation.
A few years ago, California – the state in which I reside and practice, and whose population represents more than 12 percent of the nation’s total residents – created new regulations that expand the protections under the state’s Pregnancy Disability Leave (PDL) Law.
Currently, California employers with five or more employees must make pregnancy disability leave (PDL) available to employees. The regulations clarify and, in some instances, expand the PDL protections previously afforded to employees and include the following:
“Perceived Pregnancy” Is a New Basis for Discrimination
The protected class of pregnant employees now includes those who are not pregnant but who suffer adverse employment actions based on the perception by employers that they are pregnant. An employer can now be held liable for acts of discrimination based upon the perception that an employee is pregnant.
Broadened Definition of “Disabled by Pregnancy”
The definition of “disabled by pregnancy” has been broadened to include time off for disabilities previously unrecognized, such as postnatal care, bed rest, gestational diabetes and hypertension. Also included are post-partum depression; childbirth; loss, or end of pregnancy; and/or recovery from childbirth.
Accommodation and Reinstatement Rights
These state regulations expand an employer’s reasonable accommodation obligations to include (1) modifying work schedules to provide earlier or later hours, (2) providing stools, and/or (3) providing additional break time for lactation or trips to the rest room.
As always, an employee on pregnancy leave generally has a right to reinstatement to the same position, or a comparable position, subject to employer defenses. The following is a list of other unlawful conduct for which employers can now be held liable:
Current Calculation of the Four-Month Leave Period
The State of California definition of “four months” has been readjusted so as to calculate an eligible employee’s four-month leave period in hours instead of days. Four months is now defined as one-third of a year (or 17- 1/3 weeks). Thus, a full-time employee who works 40 hours a week is now entitled to 693 hours of leave (40 X 17.33). Similarly, a part-time employee who works 20 hours per week is entitled to 346.6 hours of leave (20 X 17.33). Another key change in the California regulations governing pregnant workers is that employees are now eligible for up to four months of PDL per pregnancy, not per year.
Forms and Notices
The state regulations include certification forms and mandatory changes, which provide information for employees about their rights and responsibilities under pregnancy disability leave:
The latest revisions to these regulations have now been in place for almost two years, giving other states the opportunity to evaluate these workplace guidelines for their own adoption and use. No matter what rules govern your particular jurisdiction, it is a good practice for employers to update their handbooks or policy manuals – or, should the employer not have a handbook, distribute notices to employees at least annually and certainly as soon as the employer learns that an employee is pregnant or requests accommodation.
Laura P. Worsinger is Senior Counsel in the firm’s Labor & Employment practice and its Litigation Department, resident in Dykema's Los Angeles office. With more than 25 years of counseling and litigation experience, she has extensive knowledge of California wage and hour issues, and represents management in cases involving discrimination, privacy, sexual harassment and other employment-related proceedings.