Disability Protections Are Extended to Pregnant Employees

Can the employer legally fire a pregnant employee, who, after using up all her leave under California's Pregnancy Disability Leave Law (the pregnancy law), is still unable to return to work?

The laws prohibit pregnancy discrimination of pregnant employees. Pregnancy discrimination is defined as discrimination on the basis of pregnancy, childbirth, and related medical conditions. Some prohibited conduct include firing, demoting, harassing, retaliating, refusing health benefits, denying promotion, or denying medical leave.

Under the law, pregnancy (and all its related medical conditions such as severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth) is considered a temporary disability. California's pregnancy law allows up to four months of leave for pregnant employees. But what if the employee used up all that allowable leave and still cannot return to work, and is fired? Is she out of remedies?

Not quite. Consider the following case:

Ana Sanchez worked for Swissport, Inc. for over a year as a cleaning employee when she became pregnant. Her pregnancy was diagnosed as high-risk, requiring bed rest. She then requested a temporary leave of absence from her employer. She was granted 19 weeks of leave, consisting of her accrued vacation time plus time allotted by the California Family Rights Act (CFRA) and the pregnancy law. She was due to give birth in three months when she ran out of pregnancy disability leave. Because she had not returned to work after her 19 weeks of leave expired, her employer terminated her.

Ms. Sanchez filed a wrongful termination case against her employer, claiming that Swissport discriminated against her based on her pregnancy and pregnancy-related disability and that Swissport failed to accommodate and engage her in a timely, good faith interactive process. Ms. Sanchez argued that she should have received more leave as part of California's Fair Employment and Housing Act (the disability law). Swissport countered that according to the pregnancy law, leave is capped at four months, which it had provided to Ms. Sanchez. She was terminated only when her leave expired and she still could not return to work.

The Court of Appeal ruled in favor of Ms. Sanchez, concluding that the pregnancy law is not the only exclusive remedy for an employee seeking reasonable accommodation of her pregnancy-related disability. Once the maximum four-month leave period specified in the pregnancy law has expired, a pregnant employee is still entitled to protections for disabled employees under the disability law.

The court concluded that remedies under the pregnancy law were intended to “augment, rather than supplant” the remedies provided by the disability law. In other words, the remedies provided by the pregnancy law are “in addition to” the remedies for pregnancy-related medical conditions under the disability law.

In addition to leave under the pregnancy law, pregnant employees also qualify for regular disability leave, which has no specified duration. This means employers may be required to continue providing accommodations after a pregnant employee has used up her four-month pregnancy disability leave. Such an accommodation may include granting the employee additional leave, if said leave will eventually enable the employee to perform the essential functions of her job.

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