Expectant mothers and new parents face plenty of workplace challenges and confront unique issues even in the best of times. But the uncertainty, risk, stress, and rapidly evolving economic realities brought about by the COVID-19 pandemic create even more complications.
California workers, including those who are pregnant, have several protections that complement and often far exceed those provided in other states and at the federal level. This includes provisions for sick leave and parental leave, job security, and accommodations to allow individuals and their employers to modify their roles and responsibilities in the face of health issues and limitations.
Many such laws have been on the books for years. But new rules and legislation passed in response to COVID-19, such as the Families First Coronavirus Response Act (FFCRA), provide further rights to pregnant workers and new parents who get sick, must stay at home, lose their child care options, or need to care for ill loved ones.
Similarly, many employers are modifying existing parental leave or work-from-home policies in light of the current crisis. Pregnant or new parents with health or practical problems that interfere with their ability to work should communicate their concerns with their employers to see if reasonable accommodations can be made to allow them to do or retain their jobs. If such discussions fail to resolve the issue, it is essential to understand your rights under state and federal law.
Right to Work Remotely
While no law specifically requires employers to allow employees to work remotely, those with pregnancy or childbirth-related medical conditions do have the right to seek reasonable accommodations from their employers that enable them to continue working.
Pursuant to Gov. Gavin Newsom's stay-at-home order, many "non-essential" employers have transitioned to remote operations where possible or made other changes in response to the pandemic and current economic climate. If you work for an employer within the "essential workforce" pursuant to the stay-at-home order, and your employer has 5 or more employees, California's Fair Employment and Housing Act provides that your employer must grant your request to work remotely if you can perform the essential functions of your job and your doctor or healthcare provider confirms that remote work is necessary to protect the health of you or your baby.
If you are unable to perform the essential functions of your job from home, your employer does not need to accommodate your request. However, they will need to either temporarily transfer you to a position that allows you to work remotely for the time you are limited by pregnancy or provide a job-protected leave of absence unless it would cause your employer an undue burden to do so.
Pregnancy or Childbirth-Related Leave
If you are disabled and incapable of safely working during pregnancy or after childbirth, California's Pregnancy Disability Leave Law (PDLL) entitles you to up to four months of pregnancy disability leave (if your employer has five or more employees).
You can take this leave either before or after the birth of your child, and it includes time off for severe morning sickness, medically-necessary bed rest, childbirth, and recovery from labor and delivery, and any other pregnancy-related complications.
After your child is born, the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) allow you to take up to a total of 12 weeks of unpaid job-protected leave to bond with your child if you work for a company with 50 or more employees. Although this leave is unpaid, your employer must maintain the same health benefits you had while working. You have the right to be reinstated to your position at the end of the leave.
Similarly, the New Parent Leave Act (NPLA) provides eligible employees at companies with 20 to 49 employees s up to 12 weeks of unpaid, job-protected leave to bond with a new child within one year of the child's birth.
Paid Leave for Disability Before Childbirth and Baby-Bonding
Pregnant women can receive State Disability Insurance (SDI) benefits for up to four weeks prior to their expected due date in normal pregnancy. Following childbirth, California Paid Family Leave (PFL) provides workers with partial wage replacement if they need to take time off to bond with their child. PFL pays claimants approximately 60 to 70 percent of their weekly salary, with a maximum of $1,300 per week. Currently, employees are entitled to six weeks of leave under PFL and eight weeks for a C-section delivery. Beginning on July 1, 2020, PFL benefits will be expanded to eight weeks for all employees. Your employer may allow you to use vacation, sick, paid time off, or other leave to supplement your PFL benefits so that you can receive up to 100 percent of your regular pay.
If you work in San Francisco and your employer has 20 or more employees, under the city's Paid Parental Leave Ordinance (PPLO), your employer is required to provide supplemental compensation equaling 100 percent of your gross weekly wage, subject to a cap, for the period of time you are receiving PFL wages. The 2020 PPLO Cap is $2,167 per week.
Leave Required Because of COVID-19
Emergency Paid Sick Leave Act (EPSLA)
For employers with fewer than 500 employees, the Emergency Paid Sick Leave Act (EPSLA) requires that they provide all employees with up to 80 hours of paid sick leave for certain qualifying coronavirus-related reasons specified below. Part-time employees must receive pay equal to the average number of hours they would have typically worked in a two-week period. Employers may exclude health care providers and emergency responders from these paid sick leave requirements.
The EPSLA became effective on April 2, 2020, and remains in effect through December 31 of this year.
You may take paid sick time if you are unable to work or telecommute because:
- You are subject to a federal, state, or local quarantine or isolation order related to COVID-19. Any employee of a company with fewer than 500 employees who has been employed for at least 30 days is entitled to an additional 10 weeks of public health emergency leave.
- A physician or other health care provider has advised you to self-quarantine due to concerns related to COVID-19.
- You experience symptoms of COVID-19 and seek a medical diagnosis.
- You care for an individual subject to the quarantine or isolation order or who has been advised to self-quarantine due to the virus.
- You care for a son or daughter if their school or place of care has closed or the childcare provider is unavailable because of COVID-19 precautions.
- You experience any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Public Health Emergency Leave
The Families First Coronavirus Response Act was signed into law on March 18, 2020. It significantly expands workers' rights under the FMLA and, for the first time, establishes paid sick leave at the federal level for those impacted by the COVID-19 pandemic.
Paid leave related to COVID-19 is available to employees who must take time off to care for their minor children because COVID-19 has closed their school, daycare center, or other childcare services.
The leave available under the FFCRA expands and modifies coverage beyond that applicable to other types of leave under the FMLA. Specifically:
- Only 30 days of employment needed for eligibility. Any employee of a company with fewer than 500 employees who has been employed for at least 30 days is entitled to public health emergency leave. Under normal circumstances, the FMLA only applied to employees who were employed for at least 12 months and worked 1,250 hours. That is not the case for leave related to COVID-19.
- Only the first ten days are unpaid. Typically, FMLA leave is unpaid. Under the Act, public health emergency leave is only unpaid for the first ten days.
- Employees can substitute paid time off. During those ten days, an employee may choose to substitute any paid vacation, personal, or sick leave days they have accrued. Employers cannot, however, require employees to use paid leave.
- Capped paid leave after the first ten days. After the initial ten days, covered employers must provide paid leave for each day of leave taken under the Act. Employees must receive pay at two-thirds of their regular rate for the number of hours the employee would otherwise have been scheduled to work. However, the Act caps pay at $200 per day or $10,000 in total.
- Exemptions are available. The Act also creates certain exemptions and exceptions for small employers that would not typically be covered by the FMLA and allows health care providers and emergency responders to exclude those employees from leave under the Act.
- Reinstatement still required, with small-business exceptions. Employers must restore covered employees to the positions they held at the start of their leaves. However, employers with 25 or fewer employees may be relieved of this requirement if the employee's job no longer exists due to economic conditions or other changes in the employer's operating conditions. In such circumstances, employers must first make reasonable efforts to restore the employee to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
- Requirements are effective as of April 2, 2020. At present, the Act's paid leave provisions will run through December 31, 2020.
California's Family School Partnership Act requires employers with 25 or more employees to provide parents 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.
Recently, San Francisco and San Jose passed ordinances aimed at covering the gap in the coverage of the FFCRA by requiring employers not already covered by the FFCRA (employers with 500 or more employees) to provide emergency paid leave to certain employees. Both ordinances will go into effect immediately upon signature by their respective mayors.
Rights After Termination
Under federal and state law, employers are prohibited from terminating, demoting, or subjecting you to other adverse employment actions because of your pregnancy, pregnancy-related disability, and/or for requesting or taking leave.
If you are impacted by your employer reducing its workforce due to COVID-19, you can apply for Unemployment Insurance (UI) through California's Employment Development Department (EDD). UI benefits cover approximately 50 percent of wages, up to a maximum of $450 per week, which is taxable. The Federal CARES Act adds $600 to each weekly benefit check, extends the maximum weeks of UI benefits from 26 weeks to 39 weeks, and allows retroactive payment of benefits for income loss beginning January 27, 2020.
These are difficult and unprecedented times for all of us, including those who are bringing new life into this uncertain world. Although we can anticipate a "new normal," that transition does not allow employers to unlawfully deprive employees of their jobs, compensation, or dignity.
Outten & Golden continues to monitor developments to protect our personnel and families, and we will continue to update you about your employment rights and protections.
Please stay safe and contact one of our attorneys if you have concerns about how pregnancy, childbirth, and COVID-19 impact your workplace rights.