Legal Question in Medical Leave in California

If you take FMLS for pregnancy must your employer keep your same job at same wages for when return? What if you are gone longer than 12 weeks for birth...and maybe want to take off 6 months?

Can your wages be reduced while still working and pregnant if your work volume and efficiency are not the same due to prenancy limitations?

We are a small business and only can afford one manager. Our current manager is pregnant, but not able to keep up with the work due to pregnancy. She is paid a percentage of sales. We need to hire another manager to replace her while she is out on leave, but when she comes back, we only have availability for one manager position. There are no other like positions available. We are an auto repair shop and only hire auto techs other than the manager. 9 employees total.

Asked on 1/19/11, 9:01 am

1 Answer from Attorneys

Terry A. Nelson Nelson & Lawless

This is what I tell employees that ask.

If and when you are denied legally protected leave, or are illegally discriminated or retaliated against because of requesting or taking the leave, or you are refused accommodation, then you can consider legal claims.

An employer is not allowed to 'discriminate' against a legally defined "disability", including pregnancy, by any adverse employment action like termination, demotion, harassment, hostile environment, etc. An employer is obligated to provide 'reasonable' accommodation of a disability/pregnancy upon proper notice of valid medical requirements, if accommodation can be done without substantial burden to the company, and accommodation will allow you to still perform all the essential functions of your job. Violation is grounds for a lawsuit. Every case is determined upon its merits and all the facts.

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 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. Being out sick with the minor illness or injury does not fall within the protections.

If you qualify for both, you get both. If you are out longer than those guarantees, they can fire you, unless the disability rules apply.

If your employer has a 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.

Overriding those stated protections, just because you are on leave does not mean you can’t be terminated. You have no special exemption against lay offs or termination due to business reasons. A company in downsizing can lay off a FMLA / CFRA leave person, as long as they can show they aren’t targeting ‘because of the leave’. They are simply risking claims if they do.

Upon termination from employment, you are entitled to COBRA conversion of your medical benefits [if any], allowing you to pay for and retain your insurance coverage.

Now, in your situation, reasonable accommodation may not be possible, but must be seriously attempted. You should consult with local employment counsel for real help in this to avoid getting sued.

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Answered on 1/24/11, 12:40 pm

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