Pregnancy Disability Leave: Returning Employee Has Right to Same Job

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SavageE_eleakis204358-017Do I have to give an employee her job back after her return from maternity leave?

California law requires employers of five or more to provide a woman who is disabled by pregnancy up to four months off with a right to return to her job at the end of her leave. The term “maternity leave” is no longer used in California law; instead, this leave is called Pregnancy Disability Leave (PDL).

This leave covers any time off related to the pregnancy, including severe morning sickness, necessary bed rest, time off due to high blood pressure or other complications, labor, delivery, recovery, post-partum depression and even lactation problems.

As long as a woman is no longer disabled by her pregnancy and able to return to her job within the four-month leave period, she has a right to return to her same job. Return to the same job means she is entitled to the job she had before she left, including the same duties, pay, hours, location, and benefits.

Exception

The only exception to these return rights is where the employee clearly would have lost her job even if she had not been on leave. Some examples of this might be:

• the employee’s whole department was laid off during her leave, and she clearly would have been part of the layoff; or

• the employer lays off a group of employees during her leave based on some objective criteria, such as the 10 least senior employees in the company, and this employee was the second least senior employee.

If the employee is not returned to her job, the burden will be on the employer to show the employee would have lost her job for legitimate business reasons even if she had not been on leave.

Additional Leave

An employee who is disabled for more than four months must be considered for additional leave under other federal and state disability accommodation laws, such as the Americans with Disabilities Act and California’s Fair Employment and Housing Act. If additional leave is granted, she may have rights to return to the same or a comparable job at the end of the additional leave.

Always consult legal counsel prior to terminating any employee on any disability leave.


The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Staff contact: Ellen Savage

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Ellen Savage
About Ellen Savage
Ellen Savage joined the CalChamber in 1990 and currently serves as an HR adviser. She has been assisting employers on the Helpline for almost 15 years. She was the editor of eight editions of the California Labor Law Digest and author of the CalChamber's California Hiring to Termination Guide. Her experience also includes practicing at a large Sacramento law firm and presenting at dozens of employment law seminars statewide. She holds a J.D. from Lincoln Law School.