Legal Question in Medical Leave in California

Can my employer change their leave policy after I tell them I am pregnant.

Asked on 7/23/12, 3:51 pm

2 Answers from Attorneys

Julie Mains Mains Law Office

No. The policy that was in place when you informed them of your pregnancy is the policy that they must honor.

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Answered on 7/23/12, 4:32 pm
Terry A. Nelson Nelson & Lawless

That is a suspicious and highly risky move that is probably not allowed. If you think this is a plan to disallow leave, discriminate or retaliate towards you, feel free to contact me to discuss your legal rights and remedies.

If and when you are refused accommodation, or you are denied legally protected leave, or are illegally terminated, discriminated or retaliated against because of requesting or taking a leave, then you may have legal claims.

If your CA employer has at least 5 employees, they can not fire you because you are pregnant, must allow you to continue working as long as you are able, must 'reasonably' accommodate your disability, must allow up to 4 months of unpaid pregnancy leave under FEHA, and return you to the same or an equivalent job upon return to work, with accrued benefits.

If your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA / CFRA maternity / medical leave when you are unable to work [or must care for an immediate family member] because of a ‘SERIOUS health condition’ [that is properly confirmed and documented by the doctor], continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The employer can require you to use all accrued unused vacations and leave[s] as part of the 12 weeks, so as to make that portion 'paid'. The leave may be taken on reasonable intermittent basis if that need is properly documented by your medical provider.

If you qualify for both, you get both. If you are out longer than those guarantees, they can terminate you.

If your employer has a written policy requiring they hold your job for you for a specific period of time while on disability, longer than the FMLA / CFRA rules provide, that is enforceable.

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Answered on 7/23/12, 5:19 pm

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