The California Fair Employment and Housing Act (FEHA) requires employers with five or more on payroll to:

• Provide unpaid pregnancy disability leave (PDL) when an employee is medically disabled due to pregnancy, childbirth, or related medical conditions as determined by the employee’s healthcare provider for up to four months of leave per pregnancy (i.e., the working days normally worked in one-third of a year or 17 1/3 weeks);
• Reasonably accommodate medical needs related to pregnancy, childbirth, or related conditions (such as temporarily modifying work duties, providing a stool or chair, or allowing more frequent breaks);
• Transfer to a less strenuous or hazardous position (if available) or duties if medically needed; and
• Refrain from discriminating, harassing, or retaliating based on pregnancy.

Policy Drafting Tips and Best Practices:

• Determine whether PDL will be paid or unpaid;
• Have the employee submit a PDL request form with estimated start and end dates;
• Require a medical certification form to confirm the need for PDL, reasonable accommodation, or transfer.  See, e.g., https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2022/09/Pregnancy-Certification-Health-Care-Provider_ENG.pdf;
• Explain whether vacation and sick pay benefits will continue to accrue while on PDL;
• Always permit the employee to use any accrued vacation/PTO benefits during her leave at her discretion;
• Determine whether to require the use of any available sick leave during PDL;
• Always continue group health coverage at the same level and under the same conditions for the duration of the leave;
• Reinstate the employee to her former position or, to the extent permitted by law, to a substantially similar position;
• Reasonably accommodate the medical needs related to the pregnancy, childbirth, or related conditions; and
• Never deny PDL or refuse to extend it beyond the maximum allotted time or refuse to reinstate an employee after taking PDL without first consulting with experienced legal counsel.

Take-Aways:

Implement and regularly review your handbook to include a pregnancy disability leave policy, and educate and train your supervisors on these laws.

We publish this series to educate employers on best practices for a well-written handbook that assists applicants, employees, and management alike. To purchase our 2023 template handbook – which contains the above policy and much more – and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or email her.

See also:

• Family and Medical Leaves Policy (July 20, 2023)
• Attendance and Absence Policy – Show Up Standards (June 22, 2023)
• Build Trust – Workplace Policy Handbook & Forms for 2023 (July 5, 2023)
• Pregnancy Accommodation in California – New, Simpler Certification Form for Disability Leave, Transfer and Other Reasonable Accommodation (November 15, 2018)

Cindy Bamforth
August 2, 2023