State Law Protects Jobs of Pregnant Women

Q: We are a small warehouse distributor with seven employees. Three employees are in sales, handling a specific product line, customer base and territory.

One salesperson is expecting her first child in May. I would like to know how much time off she is entitled to, and whether we can hire a replacement.

Does the company have any recourse if it leaves the job open and the person decides not to return to work?

--P.D., Huntington Beach

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A: Under California law, any business that regularly employs five or more people must grant leaves of absence because of pregnancy or pregnancy-related disabilities. The leave can be for the duration of the disability, up to four months. The leave may be taken all at once or in increments.

The employer is not required to pay the worker during her leave, unless the company provides paid leave for other temporarily disabled employees. When the worker returns from the leave, she must be reinstated to her original job unless the job was eliminated for legitimate business reasons unrelated to the leave, or if holding the job for her would seriously undermine the firm’s ability to operate efficiently and safely.

If the employer is excused from reinstating the worker to her original job, the employer must place her in a comparable job unless there is no comparable position available, or unless filling that job with the employee would undermine the company’s ability to operate efficiently and safely.

In addition, an employee cannot be deprived of seniority because of a pregnancy leave. Benefits must be resumed when she returns from leave--without subjecting her to any new qualification period, physical exam or other prerequisite. A worker who establishes that she has been discriminated against because of her disability can recover lost wages and other compensatory damages, and also receive punitive damages. If a worker is given a pregnancy leave and fails to return from the leave as promised, the employer has little practical recourse. A company may have a breach of contract claim, if the firm agreed to pay for the leave or to keep the employee’s insurance benefits in place as long as she agreed to return. However, the firm would be inviting a retaliation claim under the pregnancy disability statutes unless the employer has a practice of making such arrangements and enforcing them with other workers on leaves not related to pregnancy.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker