An Update on Pregnancy and the FFCRA

Last week, we blogged about a question we’ve been getting a lot during the pandemic: do I have rights as a pregnant mother under the Families First Coronavirus Response Act (FFCRA)? The answer was complicated because the law doesn’t apply to many (even most) employers and pregnancy per se doesn’t qualify you for any benefits under the FFCRA. In addition, we noted that the law was set to expire on December 31, 2020 unless Congress extended it.

Well, the new bailout bill is here, and FFCRA is not extended. However, employers receive a tax credit for continuing to offer FFCRA-style leave, so employers that aren’t cash-strapped (they can pay their workers for leave) who are looking for tax benefits may continue to offer it. That means that if your child’s school is still closed and you haven’t yet exhausted your FFCRA leave, you should ask your employer about the availability of FFCRA. 

As we said in our last post on this issue, California law provides much more substantial protections to pregnant workers. Those are recapped here.

Your Right to Accommodations Under the California Fair Employment & Housing Act (FEHA)

First, you should ask whether you can continue to safely work with accommodations. If you can, your employer may have the obligation to accommodate you under the Fair Employment & Housing Act (FEHA), which applies to all employers with more than five employees.

Under FEHA, employers must engage in the “good faith interactive process” to determine whether they can accommodate pregnant workers’ work restrictions, which would include restrictions based on vulnerability to severe illness due to COVID-19. Your employer must grant you “reasonable accommodations” that do not pose an undue burden on their business. This is a fact-specific determination and you should talk to an experienced employment attorney if you have questions.

Your Right to Leave Under the Pregnancy Disability Leave Law (PDLL)

Pregnant workers in California are entitled to leave under the Pregnancy Disability Leave Law (PDLL) if their employer “regularly employs” five employees. You are not required to have worked for any minimum length of time (as compared to under CFRA or the FMLA, which are discussed below) to qualify. You are entitled to a “reasonable” amount of leave, defined as up to four months, under the PDLL. Your employer may require medical certification at the time you request PDLL or within a few days after. (They cannot require certification in the middle of your leave.) Because these rules are complicated, the law requires that your employer provide you with formal notice of your rights under the PDLL.

Leave under the PDLL is “job-protected,” meaning your employer must reinstate you to the same position or a comparable position at the same rate of pay. You may request, and your employer must provide, this guarantee in writing. When you return from leave, your employer must reinstate you unless a narrow set of exceptions apply (e.g., they went out of business).

Leave under the PDLL is also paid at a percent of your regular pay rate through the State pregnancy disability leave program. Your employer does not need to pay you.

If you use pregnancy disability leave before giving birth because you cannot safely continue to work, this would reduce the total amount of pregnancy disability leave you are entitled to after your baby is born.

Your Right to Leave Under the California Family Rights Act (CFRA)

The California Family Rights Act (CFRA) currently requires any employer with 50 or more employees within 75 miles of the employee’s worksite to grant up to 12 workweeks of leave to care for themselves, a child, a parent, or a spouse. As of January 1, 2021, CFRA will cover all employers with more than five employees. This new change will extend the right to job-protected leave to hundreds of thousands of workers and provides significant protection to pregnant women whose doctors take them off work for medical reasons during the COVID-19 pandemic.

CFRA leave is unpaid. However, it is “job-protected,” which means that your employer generally cannot terminate you while on leave, and must reinstate you to your same position and pay rate when you return. (Exceptions may exist when your employer is genuinely eliminating positions or terminating their business, which unfortunately does happen due to the economic turmoil caused by the pandemic.)

If you use CFRA leave before giving birth because you cannot safely continue to work, this would reduce the amount of CFRA leave you are entitled to after your baby is born.

Talk to an Experienced Employment Lawyer to Understand Your Rights

Leave laws are complicated, and the new COVID-related leave laws are even trickier. If you are struggling to understand your rights as a pregnant worker, contact our experienced, compassionate pregnancy discrimination and employment attorneys for a free case review. You don’t need to navigate this situation alone.

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