California’s Fair Employment and Housing Act (FEHA) and Pregnancy Disability Leave Law (PDLL), as well as the federal Pregnancy Discrimination Act (PDA), require your employer to give you reasonable accommodations for pregnancy-related medical conditions. Although employers have been required to accommodate pregnant workers for over a decade, many employers simply do not care. In fact, one study found that at least 250,000 women per year are denied pregnancy-related accommodations.
Here’s what you need to know to assert your right to accommodations at work.
1. Your Employer Must Notify You of Your PDL Rights
When you tell your employer that you’re pregnant, they are required to provide formal notice of your rights under California’s Pregnancy Disability Leave Law. This is because California law is very protective of pregnant workers, but it is fairly complicated—and you cannot assert your rights if you don’t know what they are.
Despite clear law requiring employers to notify you of your rights, many employers choose to keep employees in the dark. You may need to specifically ask HR or your supervisor for information about your rights under the Pregnancy Disability Leave Law. If they shrug off your question and say things like, “I don’t know the rules in California,” you should know that this is not an excuse. It is your employer’s legal obligation to know the law and notify you of your rights.
2. You Are Entitled to Reasonable Accommodations
The PDLL, FEHA, and PDA all require your employer to make “reasonable accommodations” for your pregnancy-related medical conditions. This means that they must accommodate you if it doesn’t result in an “undue burden” on their business. This is a high standard, and it is the employer’s burden to show that you cannot be accommodated.
So what is a reasonable accommodation? The following are just examples of reasonable accommodations for pregnant workers:
- Additional or longer breaks to use the restroom, eat, rest, or check blood sugar;
- Time off for medical appointments;
- Help lifting heavy items and other restructuring of job duties to match medical restrictions;
- Modified equipment;
- Modified schedule or exemption from mandatory overtime;
- Working from home;
- Reassignment or transfer to another, less strenuous position.
If anyone else is granted the same accommodations that you are requesting, you should be granted the accommodations as well.
3. Always Request Accommodations in Writing!
Sometimes employers really don’t want to accommodate their pregnant employees. Sometimes they have an outdated belief that you will end up quitting when you have your baby anyway, or you will no longer be devoted to the job. Sometimes they feel like accommodating your medical needs is an unfair imposition.
That is why you always want to request accommodations in writing. You want it to be crystal clear that you asked for accommodations and asserted your legal rights. That way, your employer cannot pretend you did not request accommodations, then retaliate or discriminate against you.
You never know what is going to happen. It’s always best to protect yourself.
4. Your Employer Must Engage in the Interactive Process
Once you request accommodations, it is not enough for your employer to say, “that’s too hard” or “do we really have to do all that?” They have to actually try. This process of trying—of engaging with you and exploring solutions in good faith and with the hope of keeping you on—is called the “good faith interactive process,” and it is a significant obligation your employer owes you. You can read more about the interactive process here.
It is not enough to try once. Your employer cannot say, “well, you can go on leave early,” and then when you say that you would rather work, throw their hands up in the air and give up on you. They cannot say, “we’ll give you [insert co-worker’s] position,” if that position doesn’t meet your medical needs. Again, they have to really try, and that involves a back-and-forth.
On the flip side, you have to engage in the interactive process as well. That means that you may need to attend meetings with your employer or obtain notes from your doctor or specialist. This can be stressful, but you should know that engaging fully puts you in the best position to get the accommodations you need (or do something about it if your employer denies you accommodations).
5. Reasonable Accommodations Can Include Light Duty, a Transfer, or a Modified Schedule
A reasonable accommodation can take many forms. It can include light duty if you have a position that requires you to lift heavy items or engage in serious physical activity. If your position can easily be modified to eliminate heavy lifting or other physical tasks, your employer should make those modifications to allow you to continue working.
While your employer does not need to create a new position for you, they must consider you for positions that already exist within the organization. Often, reasonable accommodations include a transfer to a desk position (for positions that require patrol work or physical labor). Reasonable accommodations can also include shifting your schedule away from a graveyard shift, assigning you to shorter shifts, or assigning you to shifts with fewer employees (to reduce COVID exposure).
Switching to another shift schedule, working from home, and working shorter shifts or being excused from mandatory overtime can also be reasonable accommodations. For example, some clients suffer from serious fatigue during their first or third trimesters and their doctors request a maximum amount of work per day. This is likely to be a reasonable accommodation.
6. You Cannot Be Forced to Take Leave if You Can Work With Reasonable Accommodations
We have represented clients whose employers pressured or forced them to take leave, rather than providing accommodations, because it was easier for the employer. This is illegal. As long as you are able to work with reasonable accommodations, your employer cannot force you to take leave. Taking leave early can reduce the amount of time available after you give birth as well as depriving you of your right to make a living while pregnant.
7. You Are Entitled to Use PDL for Doctor’s Appointments
You have a right to the accommodation of limited time off to attend your regular prenatal appointments or necessary visits with specialists. You may use PDL for this time, meaning the time off is “job-protected” and you cannot be subject to discipline. Your employer is allowed to require you to use sick time for doctor’s appointments, but again, they are not allowed to discipline you for it under any attendance policy. They also cannot require you to find a replacement for your shift before allowing you to take the time off.
8. Your Doctor Is the Key to Obtaining Reasonable Accommodations
Your employer is allowed to require a doctor’s note to approve your requested accommodations. This means your doctor’s cooperation is absolutely essential to obtaining the accommodations you’re legally entitled to.
If you are having trouble with accommodations at work, discuss your challenges with your doctor. Talk about the accommodations that would help you perform your job and continue working. Then, have your doctor write a note. The note should:
- Specify that you are pregnant, recently gave birth, and/or have a pregnancy-related medical condition. This triggers the laws that provide you protection and require your employer to accommodate you.
- Set forth specific restrictions on what you can do at work. For example, your doctor should say that you cannot lift more than 25 pounds, or that you cannot work shifts of more than 8 hours.
- State that the accommodation will enable you to continue working. This makes it less likely the employer will use your note as an excuse to pressure you to take leave.
- State how long you will need the accommodation for. This can be changed as needed with an additional note in the future.
9. Your Employer Cannot Retaliate Against You for Requesting Accommodations
Your employer cannot demote you, reduce your schedule, deny you a promotion, cut your pay or benefits, or terminate you because they are annoyed that you sought pregnancy-related accommodations. If they do, they are breaking the law.
Talk to an Experienced Pregnancy Discrimination Lawyer
Pregnancy discrimination is rampant and data shows it significantly contributes to economic inequality that can persist for the rest of your career. We are one of the only law firms in the country with a highly specialized, expert team that focuses on pregnancy and family status discrimination cases. We know how stressful it can be to navigate complicated leave and accommodation laws while you’re pregnant or taking care of an infant or young child.
If you believe you've been denied accommodations at work or your employer's policies are non-compliant, we are here for you. Contact us today through our website or give us a call at (213) 214-3757 to find out how we may be able to help.