ERA: Family & Medical Leave Discrimination

Under federal and state laws, certain employees have the right to take up to 12 weeks of unpaid leave a year for the following reasons:

A “serious health condition” is an illness, injury, impairment or physical or mental condition that involves: (1) inpatient care in a hospital, hospice or residential medical care facility; or (2) continuing treatment by a health care provider.

The federal law providing for these leaves is the Family and Medical Leave Act (FMLA). The California law is the California Family Rights Act (CFRA). The two laws are almost identical. To be eligible for leave under FMLA or CFRA you must meet all of the following requirements:

Additional leave for pregnancy. Under California state law, if you are disabled due to pregnancy, childbirth, or related medical conditions, you may be entitled to take unpaid pregnancy disability leave for up to 4 months in addition to the 12 weeks of family and medical leave provided under FMLA or CFRA. For more information on pregnancy disability leave see Know Your Rights: Pregnancy Discrimination and Pregnancy Leave.

When you return to work after your leave, you have the right to the same or equivalent position. You do not have the right to your job if it was eliminated for legitimate business reasons unrelated to your leave. Also, if you are among the highest 10% paid employees, you may not have the right to your same job back if reinstatement would cause substantial economic harm to your employer.

During your leave you are entitled to get the same medical benefits you would get if you were at work. If your family members are usually covered by your health insurance policy, your employer must continue their coverage during your leave. If you usually pay a portion of your benefits and your employer pays a portion, this continues during your leave.

You cannot lose any employment benefits during your leave. For example, if you have a pension, disability insurance, sick leave, or other benefits you cannot lose those because you take a leave. However, you do not have the right to accrue additional benefits while you are on leave.

You may take intermittent or reduced-schedule leave for your own serious medical condition or to care for your parent, child or spouse. You cannot take your leave intermittently or on a reduced-schedule basis for a new child unless your employer agrees.

If you qualify for a family or medical leave, you have the right to take that leave free from harassment or discrimination. Your employer cannot interfere with your right to take leave or discriminate against you for requesting information about your rights or for taking a leave.

If you take leave for a serious health condition or to care for a sick child, parent or spouse, your employer can require you to provide medical certification from your doctor. Your employer can also require second and third opinions, but must pay for them. The certification does not have to include a diagnosis, but must have enough facts to show that the leave is necessary.
Employers are required to post a notice explaining family/medical leave laws in a prominent location in the workplace as well as include information in the employee handbook or personnel policies. If a significant number of employees at a workplace are not literate in English, the employer must provide notice in a language that the employees can understand.
In some States, you may be entitled to temporary disability leave. In California, you may be entitled to disability payments from the California Employment Development Department (EDD) while you are on unpaid leave for you own serious health condition or pregnancy. Contact you local EDD office for specific requirement to apply for benefits.
You may decide to or your employer may require you to substitute paid vacation days for all or part of family/medical leave.

In addition to any family/medical leave to which you may have a right, you may have the right to additional unpaid pregnancy disability leave:

In California, if you are pregnant and work for an employer with 5 or more employees, you have the right to take unpaid pregnancy disability leave for up to 4 months if you are disabled due to pregnancy, childbirth or related medical conditions regardless of the length of time in your position or the numbers of hours worked.

Discrimination based on pregnancy is illegal. Federal and many state laws prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions. Federal law applies to all employers with 15 or more employees. California law applies to all employers with 5 or more employees.

Pregnancy discrimination comes in many forms. Pregnancy discrimination can include all of the following actions by an employer: refusing to hire a pregnant applicant; firing or demoting a pregnant employee; denying the same or a similar job to a pregnant employee when she returns from a pregnancy-related leave; and treating a pregnant employee differently than other temporarily disabled employees.

Your employer must give pregnant employees the same treatment and benefits that it gives to employees with other temporary disabilities.

Your employer must provide you with any reasonable accommodation for pregnancy, childbirth, or related medical conditions that you request with the advice of your health care provider (e.g., changing your break schedule to allow for more bathroom visits)
You have the right to be transferred to a less strenuous or dangerous position during your pregnancy if you provide medical certification of your doctor and your employer can accommodate the request. You can also get a transfer if your employer has a policy of transferring temporarily disabled employees to less strenuous positions. When your doctor says that the transfer is no longer medically needed, you have the right to your old job back.

In other states, check with a local community legal organization or attorney to see if your state has any similar laws.