Do I have to continue to accommodate a pregnant employee who continues to be late or absent from work when she has used up all of her paid sick leave and vacation?
California is very protective of pregnant employees who need time off work due to prenatal medical care or illness connected with pregnancy, childbirth or a related medical condition.
California’s Pregnancy Disability Leave (PDL) law requires an employer of 5 or more employees to provide time off work if the pregnancy or related medical condition requires such an accommodation.
Reason for Lateness/Absence
Having said that, it is important to determine whether being late to work and missing work is pregnancy-related or whether the employee has been missing work due to other personal reasons.
It is important to note that in California, PDL applies to all employees, including new employees, and also protects those who are employed at-will.
The federal Family and Medical Leave Act (FMLA) applies to employers of 50 or more employees and requires that an employee be employed for a year and work 1,250 hours to be eligible for the leave. The FMLA provides up to 12 weeks of job-protected leave and health insurance, while California has no time worked requirement and provides up to 4 months or 17 1/3 weeks of job-protected leave and health insurance.
In addition, in California if an employee is not released to return to work at the end of 4 months and her doctor continues her disability, then the employer is required to engage in an interactive good faith discussion with the employee about what further accommodations are needed, and may be required to provide additional time under a reasonable accommodation standard similar to the accommodation requirements under the federal Americans with Disabilities Act (ADA).
Response Options
If the reason the employee has been late or absent from work is due to sickness related to the pregnancy or related medical condition, she should be provided with unpaid time off work even though she has no available paid time.
If, on the other hand, the employee has other personal reasons for either being late or absent from work, then the employer may have the right to discipline or terminate the employee.
An employer needs to be very cautious, however, when disciplining or terminating a pregnant employee. Because these are difficult situations to handle, it is best to get legal advice before disciplining or terminating a pregnant employee.
Column based on questions asked by callers on the Labor Law Helpline, 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.
