Pregnancy and Parental Leave in the Time of COVID-19

The COVID-19 pandemic has created additional uncertainty and anxiety for many pregnant employees and new parents. As employers change their businesses to comply with social distancing and stay-at-home orders, pregnant employees and new parents are increasingly concerned about job security and staying healthy at work. To respond to these concerns, we have compiled below answers to some common questions related to pregnancy and parental leave during the COVID-19 crisis.

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Are pregnant employees entitled to work from home during the COVID-19 crisis?

Employers in California with five or more employees are required to provide pregnant employees with reasonable accommodations as needed to enable them to perform their job duties while pregnant or experiencing a related medical condition unless doing so would impose an undue hardship on the employer. COVID-19 does not affect the employer’s obligation to do this.

Thus, if a pregnant employee can perform the essential functions of her position by working remotely, as advised by her medical provider, then the employer may have a legal duty to allow the employee to do so. If the employee is unable to perform the essential functions of her job remotely, then the employer does not need to accommodate her request. However, the employer may be required to consider other possible accommodations, such as transferring the employee to another position or allowing the employee to take time off work.

If a doctor or health care provider advises that a pregnant employee needs accommodations or a leave of absence during the COVID-19 pandemic, the employee should inform her employer of that need in writing. The employer then has an obligation to discuss the needed accommodations with the employee in good faith, in order to identify accommodations that will enable the employee to perform her job without imposing an undue burden on the employer.

It is unlawful for an employer to discriminate against an employee on the basis of pregnancy or retaliate against an employee for requesting pregnancy leave or a reasonable accommodation. Any employee who believes they are being retaliated against for requesting pregnancy leave or accommodation should seek immediate legal advice.

Can pregnant employees or new parents take a leave of absence during the COVID-19 crisis?

Pregnant employees working for an employer with 5 or more employees may be entitled to unpaid leave under California’s Pregnancy Disability Leave Act. This law allows pregnant employees to take up to four months of pregnancy disability leave to cover the time in which they are actually disabled due to pregnancy, childbirth, or related medical conditions. Additional leave may also be available to the employee pursuant to the laws that protect employees from disability discrimination if the employee is unable to perform an essential job function due to pregnancy without placing the employee or her pregnancy at risk.

Pregnancy disability leave is in addition to the leave available to bond with a new child under the California Family Rights Act (CFRA), which provides an additional 12 weeks of unpaid leave for parents of newborn children who meet the eligibility requirements. Leave is also available for this purpose under the federal Family Medical Leave Act (FMLA), which runs concurrently with any leave that the employee takes under the PDL, state disability leave, or CFRA.

The Pregnancy Disability Leave Act, FMLA, and CFRA provide employees with job-protected leave, meaning that, in most cases, the employer must allow the employee to return to the same job after the leave has ended. The employer may not interfere with an employee’s leave rights or retaliate against an employee requesting or taking a pregnancy disability leave. The employer may not use the employee’s leave as a negative factor in employment decisions, such as termination, promotion, or reinstatement.

Any employee who believes they are being discriminated against because they are pregnant or retaliated against for requesting a leave of absence should seek immediate legal advice.

Can pregnant employees or new parents be laid off while taking a leave of absence during the COVID-19 pandemic?

It is not unlawful for an employer to lay off an employee who is on a leave of absence, so long as the leave is not used as a negative factor in determining whether the employee is terminated. In other words, it is lawful for an employee to include an employee on leave in a layoff if the employee would have been laid off even if they had not taken a pregnancy or parental leave. For example, businesses that have been directly affected by COVID-19 may impose a layoff or reduction in force due to economic necessity. An employee who believes that they have been selected for layoff because they took a medical leave should seek legal advice.

Where can I get legal help?

Employees who suspect that they have been subjected to discrimination, retaliation or unlawful termination based on their pregnancy or protected leave of absence can turn to the law firm of Minnis & Smallets for help. Our team of experienced employment lawyers helps those who have been subjected to employment discrimination or unlawful terminations. Employees can share their concerns with us by calling 415-551-0885 or by submitting a question on our online contact form.