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Pregnancy/Pregnancy Loss

Staying healthy at work while you are pregnant is sometimes challenging: you may be dealing with morning sickness, back pain, or doctor’s appointments every few weeks. For women who have suffered a miscarriage, you may need time off for recovery. U.S., California, and local laws can help you stay healthy at work, give you time off when you need it, and protect you from pregnancy discrimination.

Pregnancy Discrimination

  • The Pregnancy Discrimination Act makes it illegal for any employer in the U.S. with 15 or more workers to treat employees unfairly because they are pregnant, trying to get pregnant, or have experienced a pregnancy loss. That means:
    • Your boss can’t fire you or cut your hours when she finds out that you’re pregnant or trying to get pregnant—you have the right to keep working as long as you can still do your job. You also have the right to be free from harassment at work because you are pregnant.
    • You cannot be asked about your pregnancy or plans to have children in a job interview.
    • Your employer can’t treat you differently from other workers just because you are pregnant or have had a miscarriage. The Supreme Court just decided a case where they clarified what this means. The Court said that employers may not put a “significant burden” on pregnant employees. How do you know what’s a significant burden? Start looking around at how your employer treats other non-pregnant employees who have needed an accommodation at work. For example, does your employer have a policy of giving light duty only to those with on-the-job injuries? Or did they have no problem helping out folks with non-pregnancy related disabilities, but sent all the pregnant women out onto unpaid leave? If so, this could be evidence of pregnancy discrimination. Since we are still waiting for further clarification of how this standard works, it’s best to collect all the evidence you can (policies, employee handbooks or manuals, digging around to find out how others have been treated) and to discuss your particular situation with an attorney.
  • California law also bans Pregnancy Discrimination, and covers workplaces with 5 or more employees. It is illegal for employers with 1 or more employees to harass workers based on pregnancy, childbirth or related medical conditions.

Workplace Accommodations

If you need changes at work to stay healthy on the job, the laws below can help. In addition, click the green button to learn how to talk with your boss about your pregnancy and request an accommodation if you need one.

Talk with your boss about your bump

 

  • If your workplace has 5 or more employees, you have a right to receive Pregnancy Accommodations. Your employer has to accommodate needs at work that you may have because of pregnancy or childbirth, such as time off for prenatal visits or extra breaks to drink water or use the bathroom. You must ask for the accommodation with the advice of your doctor. You may also be able to get a transfer to a less strenuous or hazardous position because of your pregnancy.
  • If your workplace has 5 or more employees, your employer has to let you take time off (usually up to 4 months) if your doctor recommends that you leave work because you are disabled by pregnancy, childbirth, or a related medical condition. This is often called Pregnancy Disability Leave. Your employer has to let you keep your health insurance during this leave, and return to your job afterwards.
  • If you are not covered by California’s pregnancy accommodations law (for example, if you work out of state), there is another national law that may help you. The Americans with Disabilities Act, makes it illegal for employers in the U.S. with 15 or more employees to discriminate against disabled workers.  Some pregnancy-related conditions, such as preeclampsia or gestational diabetes, are considered disabilities under the law. This means:
    • Your boss cannot fire you, refuse to give you a promotion, or harass you because you have a pregnancy-related disability .
    • If you have a pregnancy-related disability, your boss cannot refuse to give you small changes at work that you need to stay healthy, like breaks to take medication, temporary relief from heavy lifting, or a stool to sit on during your shift. These changes are called “reasonable accommodations” and are available as long as you can still complete the basic duties of your job with those changes.  Your boss does not have to give you an accommodation that would be very difficult or expensive, like building a whole new office.
    • Although pregnancy, by itself, is not considered a “disability,” some conditions of pregnancy may be disabilities so check with a lawyer to see whether you have a right to an accommodation at work.
  • California law also bans Disability Discrimination at workplaces with 5 or more employees. This law covers many different medical conditions related to pregnancy.
  • If you are covered by the Family and Medical Leave Act, you have the right to take time off during pregnancy or after experiencing a miscarriage without losing your job. See the “Leaving Work for Childbirth and Bonding” section under the next tab for more information or see this guide to your workplace rights around miscarriage.

Leaving Work for Childbirth & Bonding

The U.S. is one of the only countries in the world with no national law guaranteeing women the right to paid leave for childbirth. However, you may have the right to paid leave and/or unpaid leave during pregnancy, childbirth, and to bond with a new child (including adopted and foster children) under California law.

Paid Leave

  • Under California’s Paid Family Leave Insurance (PFLI) law, you can receive a part of your lost salary for up to 6 weeks while you are taking time off to bond with a new child within the first year of birth, adoption, or foster care placement. You can also use it to care for a child, spouse, domestic partner, parent, sibling, grandparent, grandchild, or parent-in-law who is seriously ill. * Starting January 1, 2021, you can also use PFLI to address certain military family needs.
    • PFL only provides you with payments; it does not protect you from being fired while out on leave. You may, however, be protected by FMLA, CFRA, or the Pregnancy Disability Law, discussed in the “While You’re Pregnant” tab.
    • Your employer may require that you use up to 2 weeks of earned vacation time, if you have it, before you draw on your PFLI benefits.
    • If you work in San Francisco and are receiving California Paid Family Leave to bond with a new child, you may be entitled to supplemental compensation under the San Francisco Paid Parental Leave Ordinance. Under this law, employers must provide supplemental compensation equal to 100% of your weekly wage, up to a cap.
  • Birth parents who work in California can also get cash benefits while they are unable to work because of pregnancy and childbirth under the State Disability Insurance (SDI), program.
    • Usually you can get disability for 4 weeks before your delivery date and up to 7 weeks afterward for a normal pregnancy. However, you can get more time if your doctor certifies that you are unable to work (for example, if you need to go on bed rest).
    • Like with PFLI, the SDI program does not protect your job. You may be protected by another law, however.
    • You cannot receive SDI and PFLI payments at the same time. However you can receive SDI payments during a period of disability, and then receive PFL payments to bond with a child after you have recovered from childbirth.

Unpaid Job-Protected Leave

The law may protect your job while you are taking leave due to pregnancy, childbirth, or to bond with a new child (including adopted and foster children).

  • If you are covered, the Family and Medical Leave Act (FMLA) allows you to take up to 12 weeks of unpaid time off of work per year for a family health emergency or to take care of a new baby— without losing your job (or your health insurance, if you have it).
    • Only about half of all private sector workers in the U.S. are covered by the law! You must 1) work for the government or a company with 50 or more employees within 75 miles of your worksite and 2) have worked with your employer for at least 1 year and 3) have worked at least 1,250 hours in the year before taking leave.
    • If you are covered, you can use the 12 weeks to care for your own health (including pregnancy), to care for a new child after birth, adoption, or foster placement, or to care for a seriously ill family member. Remember that you only get 12 weeks a year in total—if you take time off before you give birth for your own health needs, you’ll have less time afterward to spend with your baby.
    • Before giving birth, you may use your leave an hour or day at a time—such as by taking a day off per week to go to the doctor— rather than all at once. Your employer must approve, however, if you want to use leave time in smaller chunks to bond with your baby.
    • While you are on leave, you have the right to keep your benefits. When you return to work, you have the right to return to the same or a similar job.
    • If you are in the top 10% of highest-paid workers in your company, different rules apply.
  • California has a state law—the California Family Rights Act (CFRA)—that is similar to the FMLA. It gives some workers the right to take 12 weeks of unpaid leave without losing their job or their health insurance. You can take this leave after the birth of a child, after adoption or foster care placement, or if you or your family member has a serious health condition (not pregnancy).
    • You are covered by the CFRA if you 1) work for the government or a company with 50 or more employees within a certain location and 2) you have worked with that employer for at least a year and 3) you have worked at least 1,250 hours in the year before taking the leave. These are the same requirements as the federal FMLA. Unlike the FMLA, however, you can take CFRA leave to care for a domestic partner.
    • Workers may take 12 weeks of CFRA leave per year in addition to up to 4 months of pregnancy disability leave, discussed in the “While You’re Pregnant” tab.
  • If your boss treats workers who take time off for childbirth differently from workers who take time off for other medical treatments (for example, she allows employees to work part-time while recovering from surgery, but requires new moms to either take leave or work a full-time schedule after childbirth), this could be illegal under the national Pregnancy Discrimination Act and California State discrimination laws. Call A Better Balance if you think you are being treated unfairly.

Returning to Work: Recovery, Nursing, and Sick Time

When you return to work as a new parent, you may still need a few extra breaks to pump breastmilk or time off to care for your baby when he’s sick. There are a few laws that can help you get back to work safely and still care for your family.

Returning from Childbirth

  • If you are disabled for a period of time after childbirth, the Americans with Disabilities Act and California disability laws, discussed under the “While You’re Pregnant” tab, may apply.
    • If so, you may be able to get an accommodation at work, such as light duty, while you recover.
  • Even if you are not disabled, the California law providing for pregnancy accommodations, discussed under the “While You’re Pregnant” tab, may give you a right to accommodations while you recover from childbirth.

Nursing Rights

  • You have the right to Breastfeed at Work. If you work in California, your employer must give you unpaid break time to express breast milk. They also must try to provide a private place, other than a toilet stall, for you to pump. Employers with 5 or more employees cannot discriminate against you for breastfeeding.
  • Rights for breastfeeding moms are strong in California, but national laws may also protect you (for example, if you work outside California):
    • The Affordable Care Act (“Obamacare”) gives some U.S. workers the right to take unpaid breaks at work to pump milk, and requires some employers to find a clean, private place that’s not a bathroom for employees to pump milk. This law only applies to workers and employers who are covered by the Fair Labor Standards Act (FLSA)— the law that sets minimum wage and overtime requirements.
  • It may be illegal under the Pregnancy Discrimination Act for your boss to punish or discriminate against you because you are lactating.
  • Under California law, you have the right to breastfeed your child in any public or private location, other than someone else’s private home.
  • California’s pregnancy accommodations law may also help, if you need a reasonable accommodation to breastfeed your baby at work.

Caring for Your Family: Family Illness and Caregiver Discrimination

As a new parent, you may face discrimination at work or have problems taking time off when you or your baby is sick. These laws can help you balance your job and caring for your family.

  • If you are covered by the FMLA or California Family Rights Act you have the right to take time off to care for a seriously ill family member. See the “Leaving Work” tab for more information on these laws.
  • In California, an employer of any size that provides sick time to employees must let you use up to half of that time to care for a sick family member (rather than your own illness). This is known as the Kin Care law.
  • In 2014, California passed the second statewide Paid Sick Leave law, which is now in effect. Under the law, most workers will have the right to take up to 24 hours of paid sick time per year. Workers earn this time at the rate of 1 hour of sick time for every 30 hours worked. Sick time can be used to care for your own or your family’s medical needs, including routine care, like an annual check-up. It can also be used for workers who need time off for reasons related to domestic violence or assault.
  • If you work in certain cities in California, you may have a right to even more paid sick time. Like the state law, sick time in these cities can be used to care for your own or your family’s medical needs. This includes routine care, like an annual check-up. Additionally, like the state law, workers earn this time at the rate of 1 hour of sick time for every 30 hours worked.
    • If you work in San Francisco or Oakland and your employer has 10 or more employees, you may have the right to take up to 72 hours of paid sick time a year. If your employer has fewer than 10 employees, you may have the right to up to 40 hours of paid sick time.
      • San Francisco’s paid sick time law can also be used for “safe time” purposes related to domestic violence, sexual assault, or stalking when the worker is the victim.
      • Family members covered by the law are: children; parents; grandchildren; grandparents; spouses; registered domestic partners; siblings; and if a worker has no spouse/domestic partner, a designated person of the worker’s choice. In San Francisco, the parents of a spouse/domestic partner are also be covered.
    • If you work in Emeryville and your employer has more than 55 employees, you may have the right to take up to 72 hours of paid sick time a year. If your employer has 55 or fewer employees, you may have the right to take up to 48 hours of paid sick time.
      • Family members covered by the law are: children; parents; grandchildren; grandparents; spouses; registered domestic partners; parents of a spouse or domestic partner; siblings; and, if a worker has no spouse/domestic partner, a designated person of the worker’s choice. Paid sick time can also be used to care for a guide dog, signal dog, or service dog of the worker or worker’s family member or designated partner.
    • If you work in San Diego, you may have the right to take up to 40 hours of paid sick time a year.
      • San Diego’s paid sick time law can also be used for “safe time” purposes related to domestic violence, sexual assault, or stalking when the worker or the worker’s family member is the victim.
      • Family members covered by the law are: children; parents; parents of a spouse/domestic partner; grandchildren; grandparents; spouses; domestic partners (registered under state/local law or with the internal registry of at least one partner’s employer); and siblings.
    • If you work in Los Angeles, you may have the right to take up to 48 hours of paid sick time a year. Sick time can be used to care for your own or your family’s medical needs. Workers earn this time at the rate of 1 hour of sick time for every 30 hours worked.
      • Los Angeles’s paid sick time law can also be used for “safe time” purposes related to domestic violence, sexual assault, or stalking when the worker is the victim.
      • Family members covered by the law are: children; parents; grandchildren; grandparents; spouses; registered domestic partners; parents of a spouse or domestic partner; siblings; and any individual related by blood or affinity whose close association with the worker is the equivalent of a family relationship.
    • If you work in Santa Monica and your employer has 26 or more employees, you may have the right to take up to 40 hours of paid sick time. If your employer has 25 or fewer employees, you may have the right to take up to 32 hours of paid sick time.
      • Santa Monica’s paid sick time law can also be used for “safe time” purposes related to domestic violence, sexual assault, or stalking when the worker is the victim.
      • Family members covered by the law are: children; parents; grand-children; grandparents; spouses; registered domestic partners; parents of a spouse or domestic partner; and siblings.
  • If you work in Berkeley, you may have the right to take up to 48 hours of paid sick time a year. Sick time can be used to care for your own or your family’s medical needs. Workers earn this time at the rate of 1 hour of sick time for every 30 hours worked.
    • While Berkeley’s paid sick time law cannot be used for “safe time” purposes related to domestic violence, sexual assault, or stalking, you have the right under California’s paid sick time law to take time off for reasons related to domestic violence or assault.
    • Family members covered by the law are: children; parents; grandchildren; grandparents; spouses; registered domestic partners; parents of a spouse or domestic partner; siblings; and any individual related by blood or affinity whose close association with the worker is the equivalent of a family relationship.
  • To see if you are the type of worker that is covered by these laws, you can read more about the paid sick time laws here.
  • If you work for an employer who has 25 or more employees, you may be able to take Leave to Attend School Activities. Your boss can’t discriminate against you for taking off up to 40 hours each year (although no more than 8 hours per month) to participate in activities at your child’s school or day care. There are a lot of specifics to this law, so look it up and read it carefully.
  • In California, if you have to quit work because of an issue related to the health or welfare of your family, you may still be able to get Unemployment Insurance.
  • The Americans with Disabilities Act also bans unfair treatment of workers based on their relationship with a disabled person. For example, your boss can’t cut your hours because he thinks you can’t work as hard because you have a child with asthma. However this law does not give relatives of a disabled person the right to accommodations, such as a schedule change, to help them provide care. According to a recent court case, California’s disability discrimination law may also ban this kind of discrimination in workplaces with 5 or more employees.
  • San Francisco has a law called the Family Friendly Workplace Ordinance, that requires that employers with 20 or more employees allow certain employees to request a flexible or predictable working arrangement, when they need to take care of a child, sick relative, or elder parent.
    • You are eligible under this law if 1) you are employed in San Francisco, 2) you have been employed for 6 months or more by your current employer, and 3) you work at least 8 hours per week on a regular basis.
    • If you request a flexible or predictable working arrangement, your employer cannot deny your request unless they explain the denial in writing, show a legitimate business reason for the denial, and provide you with notice of your right to request reconsideration.

Call A Better Balance if you are having problems at work because you are pregnant or parenting

Our free hotline can provide you with information about your rights at work (or refer you to another attorney or legal organization in your area). The information provided here or in response to a Hotline inquiry does not constitute legal advice and does not establish an attorney-client relationship. If ABB chooses to represent you, then a retainer will be signed setting out the scope of the representation.

Call 1-833-NEED-ABB

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