Please consider our firm if you were fired from your job because you went on maternity leave. In California, the right to maternity leave is guaranteed to all employees who work at an employer with five or more employees. Our employment lawyers will argue the right to maternity leave is also provided to employees who work for employers with five or fewer employees. Article I Section VIII of the California Constitution, during the 1990s, was held to apply to all employers if sex discrimination occurred in the form of pregnancy discrimination. In general, pregnancy discrimination is considered a form of sex discrimination.
Maternity Leave under the Fair Employment and Housing Act (FEHA) defines maternity leave as occurring when a female is disabled by pregnancy, childbirth, or related medical conditions. A woman is “disabled by pregnancy” if, in the opinion of her health care provider, she is unable because of pregnancy to perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons. 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. The preceding list of conditions is intended to be non-exclusive and illustrative only.
The conditions in the above paragraph allow the pregnant woman to take a reasonable maternity leave up to four months. However, reasonable leave is defined as the actual time the woman is disabled due to pregnancy. If the new mother is no longer disabled, but lacks childcare that situation is not covered as maternity leave. Lactation is not considered a disabling medical condition entitling a new mother to maternity leave. Maternity leave is intended to provide leave due to the mother’s health conditions other than in the case of something like bed rest which is prescribed to protect the health of the fetus. If time off from work is needed to care for a newborn, Family Medical Leave may apply. Visit FMLA Chart
Maternity leave can be taken intermittently. For example, a pregnant woman may need several days off to recover from a near miscarriage. Pregnant women may experience a spike in a diagnostic test such as blood pressure and need to be confined to bed rest for duration of time.
During maternity leave, pregnant employees may use their vacation pay. It is a violation of the law for an employer to refuse to allow a woman on maternity leave to maintain continuous health insurance coverage provided by the employer.
Following maternity leave, new mothers must be reinstated to their same job or a comparable position. “Employment in the same position” means employment in, or reinstatement to, the position that the employee held prior to reasonable accommodation, transfer, or disability leave because of pregnancy. “Employment in a comparable position” means employment in a position that is virtually identical to the employee’s position held prior to reasonable accommodation, transfer, or disability leave in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. It must be performed at the same or geographically proximate worksite from the employee’s prior position and ordinarily has the same shift or the same or an equivalent work schedule.
This article is intended to cover maternity leave in California in terms of time off from work due to pregnancy. Pregnant employees have other rights such as job modifications and transfers during their pregnancy which are beyond the scope of this article.
If you have questions about the manner in which your employer treated you during your pregnancy, please call our firm and speak to one of our pregnancy discrimination lawyers. Firm head, Karl Gerber, has handled hundreds of pregnancy discrimination cases. He has also successfully tried pregnancy discrimination lawsuits before Los Angeles juries, and arbitrated a pregnancy discrimination case before a retired Los Angeles Superior Court judge.
A finding of punitive damages in a Los Angeles Superior Court lawsuit in which a pregnant woman was harassed on the basis of her pregnancy
A case that went all the way to the California Supreme Court following a jury win in Los Angeles Superior Court on a pregnancy discrimination case tried in 2010