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.