Pregnancy and Parental Leave Rights in California in the Time of COVID-19

Pregnancy and Parental Leave Rights in California in the Time of COVID-19

Mar

27

2020

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By Sarah Schlehr

Worries about job security and remaining healthy at work are heightened for pregnant moms and new parents during the COVID-19 pandemic. While it is a public health emergency, not all employers are taking the same steps in how they alter business, leaving uncertainty for some employees.  Here we answer frequent questions about parental leave for California employees in the midst of the outbreak

Q. Can I demand to work remotely if I’m afraid of getting the new coronavirus in the workplace?

A. Under California’s Pregnancy Disability Leave law, if you work for an employer with at least 5 employees, you are entitled to reasonable accommodations for a condition related to pregnancy, childbirth, or a related medical condition. If your health care provider advises that you need to work remotely to protect your health or pregnancy and you can perform the essential functions of your job, your employer will need to grant your request. If you are unable to perform the essential functions of your job remotely, then your employer does not need to accommodate your request but will be required to either temporarily transfer you to a position that will permit you to work remotely for the time you are affected by pregnancy or provide you with a job-protected leave of absence.

Following Governor Newsom’s March 19, 2020 “Stay at Home” Executive Order, many employers are taking steps to facilitate remote work. If your employer already has put measures in place for employees to work from home, you may request the same accommodation if those measures can be applied to your job.

Q. Can I take a leave of absence during my pregnancy if I’m afraid of getting COVID-19?  

A.  During the time of COVID-19, pregnant women may be advised by their doctor to work remotely or, if this is not possible, to take a leave of absence. If your doctor recommends that you take a leave of absence because you are disabled by pregnancy, childbirth, or a related medical condition, you are entitled to up to four months of job-protected leave.  If your pregnancy-related disability extends longer than four months, you may be entitled to more than four months of leave as a reasonable accommodation.  

Q. My doctor placed me on a leave of absence because my employer would not allow me to work remotely. My employer has now moved everyone to remote work. Can I begin working again?

A. Yes. If your employer decides to implement remote work protocols, your employer must reinstate you as soon as reasonable accommodations are available that will permit you to perform the essential functions of your job.

Q. If I require a leave of absence for my pregnancy, does my employer have to pay me?

A. Under ordinary circumstances, if you are taking leave because you are disabled because of pregnancy or to bond with your new baby, your employer does not need to pay you while you are on leave. However, you can use any sick and vacation leave you have accrued. Additionally, you may be eligible for State Disability Insurance (SDI) and Paid Family Leave (PFL) during this time, which would provide you with 60 or 70% of your normal weekly wages.  If you are taking leave under the Pregnancy Disability Leave Law, the New Parent Leave Act, or the California Family Right Act, then your employer must also maintain your health benefits.

If you work for an employer with 500 or fewer employees and your health care provider advises you to self-quarantine during your pregnancy due to concerns about COVID-19 or you are experiencing symptoms of COVID-19 and are seeking a medical diagnosis, then your employer may be required to pay you for 10 days for emergency sick leave under The Families First Coronavirus Response Act.

Q. Can I be laid off while I’m taking disability or parental leave?

A. Your employer cannot include you in a layoff if the reason for the layoff is that you are pregnant or taking a job-protected leave. However, your employer can include you in a layoff or reduction in force if you would have been laid off even if you weren’t pregnant or taking leave.

Q. What benefits can I receive if I’m on leave or laid off?

A. A variety of benefits may provide partial wage reimbursement if you are laid off during your pregnancy or taking a job-protected leave of absence. You can apply for these benefits through California’s Employment Development Department (EDD). Such partial wage replacement benefits may include:

Short term disability—during the time you are disabled because of pregnancy, childbirth, or a related medical condition, you may be entitled to short term disability benefits.

Paid family leave—if/when you are no longer disabled, you may be eligible for up to 6 weeks of Paid Family Leave benefits while you bond with your new baby (8 weeks starting July 1, 2020).  

Unemployment Insurance—when you are available to work but do not have a job to return to, you may be eligible for unemployment benefits.

Q. My child’s school/daycare closed due to COVID-19. Can I work from home?

A. There is no law that requires employers to permit employees to work from home because a child’s school or daycare has closed. However, the California Labor Code and the The Families First Coronavirus Response Act require your employer to provide you with time off of work.

California’s Family School Partnership Act requires employers with at least 25 employees to provide you with up to 40 hours of leave for a school or childcare related emergency. A school related emergency includes the closure or unexpected unavailability of your child’s school or childcare provider. Unfortunately, this provision does not apply if your child’s school or daycare remains open even if you would prefer to keep them home due to concerns of the new coronavirus.

The Families First Coronavirus Response Act requires employers with 500 or fewer employees to provide employees with 2 weeks of emergency paid sick leave and 12 weeks of emergency family leave when workers need to care for their child under 18 years old if the child’s school or place of care has been closed or when their childcare provider is unavailable.  For the 12 weeks of emergency family leave, you must have worked for your employer for at least 30 days. 

Q. What is a good approach for discussing my rights with my employer?

A. Be professional and patient without risking your health or the health of your pregnancy or child. It is important to ask your employer questions in a professional manner. If your employer doesn’t have immediate answers, give them the opportunity to obtain accurate information. But never risk your own health or the health of your pregnancy or child. If your doctor or other health care provider advises that you require accommodations or a leave of absence immediately, let your employer know in writing and follow your health care provider’s advice. If your employer requests a doctor’s note, provide one to them as soon as it’s feasible.

Benefits and protections available to employees impacted by COVID-19 are evolving and you are encouraged to check with the websites of the Labor and Workforce Development Agency and the Employment Development Department of California websites for the most updated information regarding your rights as an employee in California and the benefits that may be available to you. Also, visit Legal Aid at Work’s Roadmap and Guide to see how your right to leave and wage replacement work together. You may also contact Sarah Schlehr at sarah@pregnancylawyer.com if you have questions about your rights.

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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CELA VOICE

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Lactating men, toilet stalls and the arc of justice

Lactating men, toilet stalls and the arc of justice

Feb

27

2015

By Christian Schreiber3 month baby

For the vast majority of workers, the laws that protect their rights operate silently in the background. This is especially true in California, where labor laws are frequently hailed – or assailed – as the country’s most protective for workers.

It’s easy to forget that the standards we take for granted today were once uncharted frontiers, but sometimes a reminder is in order: the provision of new rights always meets resistance, but seldom do we regret the expansion.

A recent example makes the point. The U.S. Supreme Court denied a breastfeeding mother’s last chance at an appeal last month. The plaintiff in the case, Angela Ames, alleged that she was wrongfully terminated from her job at an Iowa insurance company after returning to work from pregnancy leave. Ames requested a room where she could express breast milk, and was instead told by her boss to “go home and be with your babies.” The district court tossed the case on summary judgment, noting that her sex discrimination claims could not stand because “lactation is not a physiological condition experienced exclusively by women.” The 8th Circuit upheld the decision.

If you’re thinking this sounds like an article in the Onion, you’re not alone. Legal opinions relying on “Strange But True” articles make me think that my trivia-minded children have a too-near-term future on the bench. And I can’t be alone in being reminded of this:

Unfortunately, Ames and other women trying to breastfeed remain unprotected in many settings, and experience resistance in even unlikely places. Last fall, my sister-in-law was prepared to sit for her board exams in for Pulmonary and Critical Care Medicine. When she asked the American Board of Internal Medicine for accommodation to express milk during the 10-hour testing day, she was told to spend her break time pumping. Because as every lactating man knows, pumping is the same thing as studying, resting, eating, smoking, or taking a break.

In California, breastfeeding rights are well established. But because she lives in Indiana (where she is currently completing her fellowship), she enlisted help from me and the ACLU’s Women’s Rights Project. We wrote a letter explaining the shortsightedness of ABIM’s position. The good news is ABIM accommodated her request, and subsequently changed its policy. Ms. Ames was not so lucky.

California working mothers can now rely on Labor Code section 1030, which since 2003 has required employers to provide unpaid time and non-bathroom space for employees to express breast milk. When the bill mandating these changes was debated, however, the Chamber of Commerce predictably opposed the bill.

The Chamber’s position evolved over the next decade. Last year it did not oppose AB 1787, which would have required large commercial airports to provide places for nursing mothers. But the Chamber is nothing if not consistent. Instead of recognizing that today’s vanguard is tomorrow’s baseline, the Chamber still reflexively opposes any “new rights” in the workplace, typically tagging such efforts as “job killers.”

It is time our elected officials stop crediting the tired perspective of holdouts quivering at the edge of a civil rights moment. Time has a way of showing that the Chamber’s unbroken chorus of “impending doom” and “runaway rights” holds neither moral nor economic sway. And it never stands the test of time. A dozen years later, what California employer is clamoring to end the tyranny of nursing mothers being released from the confines of a toilet stall?

The Chamber’s economic perspective is just as faulty.. Consider the following two slides:

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If the Chamber’s perspective were valid, the laws enacted to protect workers in San Francisco should have crushed the City’s economic vitality. Plainly,they didn’t..

The Legislature is poised to consider any number of bills this session that will expand the rights of workers, including a renewed effort to guarantee equal pay for working women.  When the Chamber begins its craven “job killer” refrain, as it will both publicly and privately in the days ahead, it should be met with  skepticism. California legislators need not shy away from the reality that civil rights legislation has demonstrated a distinct, eastward migratory pattern.

If the arc of the moral universe is long and bends towards justice, short-term plans that offer only the promise of continued inequity should be met with a new chorus. “See me in 10 years if you’re still interested in reversing these rights. Otherwise, I hear they’re hiring in Iowa.”

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

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Christian Schreiber

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Honor working moms this Mother’s Day by signing a card to protect their jobs

Honor working moms this Mother’s Day by signing a card to protect their jobs

May

9

2014

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By Sarah Schlehr

This year marks the 100th official anniversary of Mother’s Day.  Let’s make it memorable by asking Congress to support the Pregnant Workers Fairness Act.  The National Women’s Law Center is asking everyone to sign the biggest Mother’s Day card ever.  By signing this card, you will be asking Congress to protect pregnant women and allow them to keep their jobs when they need modest accommodations during their pregnancy.

Although California has some of the strongest workplace protections for pregnant women, many states today do nothing to protect moms-to-be in their jobs.  Pregnant women have been fired because they asked to avoid heavy lifting, stay off ladders, or sit on a stool instead of standing at a cash register all day.  And the companies that fired them, did so legally!  This needs to change.

Women make up almost half of today’s workforce and over forty percent of moms are the sole or primary breadwinners for their families.  Sixty-five percent of married mothers with children work.  The Pregnant Worker’s Fairness Act would help moms-to-be stay in their jobs and continue providing the financial support that their families need.

Not only are mothers’ incomes often essential to providing for the needs of their babies, but studies have shown that working mothers have children with higher scores in language, reading, and math across gender, socioeconomic, and marital status.  The daughters of working mothers showed more positive assertiveness, increased willingness to challenge traditional gender roles, and increased competence.  Dual income couples also report the highest marital quality.  And while there is nothing wrong with being a stay-at-home mom, we need to protect the employment of mothers who work.

The Americans with Disabilities Act (“ADA”) already protects disabled workers from being fired when they need reasonable accommodations at work.  There is no reason that pregnant workers shouldn’t receive the same protection.  For example, the ADA would protect a worker who experienced a hernia and needed to avoid heavy lifting, but if that same worker became pregnant, the employer could legally fire her for asking for the exact same accommodation.

The Pregnant Worker’s Fairness Act would change this by ensuring that employers make reasonable accommodations when workers have a medical need because of pregnancy, childbirth, or related medical conditions.  Because new moms should never have to choose between the health of their baby and their job.

This Mother’s Day, tell Congress to do more than pay lip service to our hard working moms.  It’s time we pass the the Pregnant Worker’s Fairness Act and show our moms that they are valued both at home and in the workforce.

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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Sarah Schlehr

International Women’s Day now means progress without equity

International Women’s Day now means progress without equity

Mar

8

2014

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By Elizabeth Kristen

International Women’s Day, celebrated worldwide this past weekend, started out as  “International Working Women’s Day” in 1911. One week later, the notorious Triangle Shirtwaist Factory Fire of 1911 broke out, killing over 140 workers – mostly women – who were trapped inside the factory. The horror of that fire and the working conditions imposed on the women locked inside the factory galvanized the labor movement and the women’s rights movement. Even though the name may have changed, this annual day honoring women is the perfect time to take account of the barriers working women still face today.

Working women in the United States confront challenges ranging from workplace discrimination and harassment to unequal pay and inadequate leaves of absences.  The 2014 Shriver Report:  A Woman’s Nation Pushes Back from the Brink collects essays that detail how these barriers impact not only working women, but their families, the economy and society as a whole.

Discrimination and harassment – Women continue to face unlawful discrimination and harassment on the job based on sex, pregnancy, gender identity, sexual orientation, race, national origin, disability, and many other characteristics.  The U.S. Equal Employment Opportunity Commission, the agency that enforces our federal civil rights laws published its statistics for charges filed in Fiscal Year 2013.  Charges of sex discrimination constituted approximately 30% of the charges filed with the EEOC.  The California Department of Fair Employment and Housing, the state agency that enforces our state civil rights laws published its statistics for 2012. This data showed that sexual harassment charges were approximately 60% of the charges filed regarding sex discrimination and harassment.  These statistics demonstrate that employment discrimination and harassment continue as serious problems for working women.

On the legislative front of women’s rights issues at the federal level, the Pregnant Workers Fairness Act would strengthen the protections for working pregnant women.  We also need the protections of the Employment Non-Discrimination Act, which would prohibit discrimination on the basis of sexual orientation and gender identity across the country.  But these laws must also be enforced, which means vigilant leadership and restoration of the funding cuts that have undermined the California and federal agencies charged with civil rights enforcement.

Gender-Based Wage Gap – Despite the fact that gender-based pay discrimination has been against the law for over 50 years, women in the United States still face a significant wage gap.  Recently, there has been little progress in closing the gap in wages between women and men.  As of 2012, women’s median earnings were 81% of men’s.  And the wage gap is worse for women of color.  Because women are breadwinners for their families, the impact of wage discrimination is felt across the board.  The Paycheck Fairness Act, pending in Congress, would help fight gender-based pay discrimination

Leaves of Absence – Women are still the primary caregivers in the U.S. and they also often must take time off work for pregnancy and childbirth.  Yet the U.S. lags behind nearly every other country in the industrialized world in terms of how much leave it provides for caregiving, pregnancy and childbirth.  The federal Family and Medical Leave Act provides for job-protected leaves of absence for caregiving as well as for pregnancy and bonding leave.  However, the FMLA is unpaid leave and many workers cannot afford to take unpaid leave.  The FMLA also provides no protection for those workers at companies with fewer than 50 employees at or near their worksite, those who have worked for the employer for less than a year, and many who work part-time. Additionally FMLA takes a narrow view of what it means to be a family member, drawing a tight boundary around the nuclear family– parent, child, and spouse.   Grandparents, siblings and other extended family are not included.

The California Paid Family Leave Law, the first of its kind in the country, provides partial wage replacement to workers who take time off to care for family members or bond with a new child.  As of July 2014, California workers will be able to take  paid family leave for a broader group of family members that will include grandparents and grandchildren, siblings, and parents-in-law.

Some federal legislators are already taking the cue from California with a pending bill in Congress to provide paid leave nationally.  They should keep up the momentum and improve the FMLA to extend coverage to more workers and to widen the circle of who is considered “family.”

The United Nations’ theme for this year’s International Women’s Day is “Equality for Women is Progress for All.”  The global gender gap index shows a strong correlation between a country’s gender gap and its economic competitiveness. Given the fact that women are at least half of the potential workforce, a nation’s economic competitiveness depends on how it treats women. Improving the lives of working women will enhance progress for all working families and our national economy.  When that happens, we will all be able to proclaim “Happy International Women’s Day”!

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

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Elizabeth Kristen

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This Halloween, no more tricks on pregnant women 1

This Halloween, no more tricks on pregnant women

Oct

31

2013

By Mariko Yoshihara and Jean Hyams

As our children spend today dressed up in costumes, carving pumpkins, and eating way too much candy, let’s take a moment to celebrate the moms who created all those lovely trick-or-treaters.

On this day, 35 years ago, President Jimmy Carter signed the Pregnancy Discrimination Act into law, recognizing the pervasive threat of workplace discrimination to the health, safety, and economic security of pregnant women and their families.

Before the PDA, employers could legally fire or refuse to hire pregnant women.  Indeed, employer policies that discriminated against pregnant women were upheld by the courts because pregnancy was regarded as “a voluntarily undertaken and desired condition.”

The PDA finally addressed this sexist line of thinking (and notably with bipartisan support) by amending Title VII to clarify that sex discrimination in employment includes discrimination on the basis of pregnancy, childbirth, or related medical conditions.

Thirty-five years later, pregnancy discrimination complaints are still on the rise.  From 1992 to 2011, the U.S. Equal Employment Opportunity Commission (EEOC) reported that pregnancy discrimination complaints increased by 71 percent, particularly among low-wage earners and women of color.

While some of the rise in complaints may be due to the fact that more women are in the workforce, significant injustice persists because many employers refuse to provide reasonable accommodations to pregnant women.  As a result, women are still being forced out of the workplace to avoid putting their health and the health of their babies at risk.

The Pregnant Workers Fairness Act (H.R. 1975/S. 942), sponsored by Representative Jerrold Nadler (D – N.Y.) and Senators Robert Casey (D – Pa.) and Jeanne Shaheen (D – N.H.), would help strengthen the PDA by ensuring that employers provide reasonable accommodations to those pregnant women who want to continue working.

The Pregnant Workers Fairness Act is a chance to make clear that Congress wasn’t playing a trick on our nation’s mothers when it promised non-discrimination based on pregnancy.  With “family values” a guiding maxim on both sides of the aisle, Congress should act now to protect the health and financial security of our nation’s mothers.

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Jean Hyams, Co-Chair · Mariko Yoshihara, Director

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Devastating consequences to working moms and infants when employers violate the law

Devastating consequences to working moms and infants when employers violate the law

Aug

21

2013

By Sarah Schlehr

California law has the back of new and expectant mothers who need workplace accommodations during pregnancy or time and space to breastfeed after giving birth.  By following the laws, employers protect the moms-to-be and babies. Unfortunately, when employers disregard their legal obligations, the consequences for women and their babies can be huge – premature delivery, back injuries, undernourished babies, even stress-related miscarriage.

A recent article in the Huffington Post exemplifies the suffering one employee experienced when Albertson’s failed to accommodate her most basic requests for accommodations: she delivered prematurely and her newborn died.  In a recent blog post detailing this tragic case, the public interest law firm, Public Justice, calls for action at the federal level to extend the types of protections available under California law across the nation.  Blogger and Public Justice staff attorney Claire Prestel touts the recommendations of an important recent report by the National Women’s Law Center and A Better Balance —

So here’s a newsflash that shouldn’t be news to anyone: More and more pregnant women are working, working closer to their due dates, and providing essential income and benefits for their families. This means that if we are going to get serious about restoring the middle class, part of our effort must go to protecting these women so they can support their families. The NWLC/ABB report outlines concrete steps that can and should be taken right now, including guidance the EEOC can issue without presidential or congressional action.

Another recent blog post from Public Justice senior attorney Victoria Ni, The Facts of Life, describes the long struggle women have experienced to secure their right to breastfeed their babies while supporting their families by working.  In California, the law was amended this year to ensure that discrimination based on sex specifically included breastfeeding.  Despite this, many women continue to experience difficulties trying to pump breast milk during work hours.  Unfortunately, even a day or two of interrupted pumping can have significant and ongoing effects on a mother’s ability to breastfeed their newborn.  While certainly not as extreme as the death of a newborn, the inability to supply one’s child with breast milk can have serious long-term effects on the health of one’s baby.

Often the accommodations female employees need are as simple and obvious as not requiring a pregnant woman to lift heavy items or to allow a woman with gestational diabetes the ability to eat regular snacks during work so her blood sugar can remain stable.  For women who wish to breastfeed, the accommodation is usually as straightforward as providing them with a private space (not a bathroom stall) and time to pump breast milk.

In view of how long and hard employees had to fight to establish these reasonable and simple laws, it should perhaps not come as a surprise that employers continue to fight long and hard to resist following them.  But resistance to change does not justify the serious consequences to women and the long-term harms suffered by infants, all of which can be prevented in California through enforcement of the legal protections.

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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Sarah Schlehr

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