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What to Expect When Your Employee is Expecting

November 21, 2022 5925

Employers of five or more full-time or part-time employees must make PDL available to employees. 

Initial steps

While it might be tempting to ask if you suspect an employee might be pregnant, it is best to let the employee approach you with news of her pregnancy. When an employee learns of her pregnancy, she should inform her employer as soon as reasonably or personally possible. It is advised that, "If possible, an employee must provide her employer with at least 30 days advance notice of the date for which the pregnancy disability leave is sought." As an employer, it’s an opportunity to say, “Congratulations!” and provide a copy of Your Rights and Obligations as a Pregnant Employee and the office policy manual for the employee to review current leave policies. It’s best to remain available should she have any questions she’d like to discuss. Open communication during this time is vital. Have a discussion with your employee as to how much time she expects to be away from the office. If she’s unsure, allow her the time to discuss and determine this with her health care provider as she progresses. The actual time designated as Pregnancy Disability Leave is determined by the employee’s health care provider, not the employee.

Establish an office policy that indicates that all pregnant employees should provide a letter or certification from a health care provider stating estimated delivery date, any special accommodations, work limitations and probable duration of the disability required and keep a copy in her seperate confidential personnel file.

The information provided by the health care provider need not contain more than stated above, and as with all medical information, it is considered confidential. Such policies requiring information provided by an employee’s health care provider should be consistent with all of the types of disability leave documents required by your office.

Health and financial information (wage assignments, garnishments, etc.) must be kept in a separate, confidential file apart from the personnel file. The California Labor Law Digest states, “Establish a confidential file for each employee that contains information related to the employee’s medical issues. Keep it separate from the regular personnel file and grant access only to those with a legitimate need to know the information.”

Discrimination

It is unlawful for an employer to discriminate against or harass employees because of pregnancy, perceived pregnancy, childbirth, breastfeeding, or any related medical condition. It is also unlawful to retaliate against an employee because of pregnancy, perceived pregnancy or because the employee exercised the right to take a pregnancy disability leave or to seek reasonable accommodation. If a pregnant employee is temporarily unable to perform her duties, you must treat her like any other employee who has a temporary disability. As a general rule, if an office of fewer than five employees that provides leave for other types of illnesses or disabilities, it is advisable that the same leave be provided for pregnancy-related disability as well.

Workplace Hazards

Once an employer is notified of a pregnancy, the first obligation is to assess if there are any risks within the workplace for the pregnant employee.

We recommend:

  • Assessing the risks to which a pregnant woman, woman who has recently given birth or woman who is breastfeeding is exposed and the length of the exposure;
  • Informing any employee concerned with identified risks with information on the control/protective measures that will be put in place;
  • Determining the practical measures to be implemented in the workplace to protect against the risks.

There are concerns around exposures to mercury, radiation and certain chemicals, including nitrous oxide, by women or men who are trying to conceive as well as by pregnant women. To be cautious, it is best to have a pregnant staff member, or one who is trying to conceive, refrain from being in the same operatory when nitrous oxide is being administered, unless the employee’s physician states otherwise.

Even the best scavenger system does not prevent exposure to nitrous oxide gas as patients can have their mouths open during procedures allowing the gas to escape.

It is important for office staff to be aware of the workplace risks for pregnant employees and to discuss ways in which the entire office can accommodate such employees without drastically altering the office environment. A letter from the employee’s health care provider may also advise how long she should avoid or limit exposure to specific substances or avoid or limit performance of specific tasks. The employee should provide this health care provider’s letter to the employer, who should place it in the employee’s confidential personnel file.

The California Radiation Control Regulations state that each licensed dentist must instruct occupationally exposed individuals on the health risks associated with radiation. Licensed dentists are responsible for knowing the following regulatory provisions (10 CFR 20, Section 20.1208):

a.  The licensed dentist shall ensure that the dose to an embryo/fetus during the entire pregnancy, due to occupational exposure of a declared pregnant woman, does not exceed 0.5 rem (5 mSv).

b.  The licensed dentist shall make efforts to avoid substantial variation above a uniform monthly exposure rate to a declared pregnant woman so as to satisfy the limit in paragraph (a) of this section.

c.  The dose to an embryo/fetus shall be taken as the deep-dose equivalent to the declared pregnant woman.

d.  If the dose to an embryo/fetus is found to have exceeded 0.5 rem (5 mSv), or is within 0.05 rem (0.5 mSv) of this dose, by the time the woman declares the pregnancy to the licensed dentist, the dentist shall be deemed to be in compliance with paragraph (a) of this section if the additional dose to the embryo/fetus does not exceed 0.05 rem (0.5 mSv) during the remainder of the pregnancy.

Employers should provide a pregnant employee with a personnel monitoring device (dosimeter) to wear at all times while in the office. Results from the dosimeter can be provided to the employee and kept in the employee’s medical record.

Employers can inform an employee of the risks of radiation exposure by providing a copy of Section XIII of the Radiation Safety in Dental Practice |A Study Guide and may use Pregnancy Declaration for Radiation Safety to document an employee’s voluntary declaration of pregnancy and that the employee has been informed of facts on occupational radiation exposure and on exposure to an embryo-fetus as required by law.

Employer Obligations and Managment of Pregnancy Disability Leave

California’s Pregnancy Disability Leave (PDL) law states that employers of five or more employees must provide PDL. It is a recommended conservative best practice that all employers, even those under a five-employee head count, provide the pregnancy leave.

Full-time and part-time employees are eligible for PDL from the onset of employment. The duration of leave is up to four months for eligible employees disabled by pregnancy, childbirth or a related medical condition. This duration includes the amount of time employees may need prior to and after the birth of the baby. The employee’s health care provider, not the employee, designates the duration of leave.

When an employer grants an employee’s request for PDL, that employer is guaranteeing that the employee will return to the same position or a comparable one. If an employer should discover indications of poor performance or inadequacies in an employee’s role, the best course is to meet with the employee to discuss the performance expectations when the employee returns and then to monitor and document performance going forward.

Because of the legal risks of failing to comply with pregnancy disability laws, employers who wish to make changes to an employee’s job status before, during or after a leave of absence should seek the advice of an employment attorney prior to taking any action.

PDL does not have to be taken in one continuous period of time. Employees can take leave intermittently or on a reduced work schedule, when necessary, as determined by the employee’s health care provider.

If an employee is disabled longer than four months because, for example, the employee is placed on bed rest or needs additional time off at the end of four months, the employee may be entitled to additional unpaid, job-protected leave under the California Family Rights Act (CFRA) or as a reasonable accommodation for a pregnancy-related or other disability under the Americans with Disabilities Act and California’s Fair Employment and Housing Act.

More detailed information can be found in the State of California Civil Rights Department Pregnancy Leave brochure.

Calculating Pregnancy Disability Leave
Four months of PDL are calculated based on how many hours your employee works per week. For this calculation, four months equals 17 ⅓ weeks. Take the average number of hours the employee works per week and multiply that number by 17 ⅓. That will give you the number of hours of leave the employee is entitled to in her “four months” of PDL. (Cal. Code Regs. tit. 2, § 11042(a)).

# of hours worked per week x 17 1/3     = # of hours of PDL

# of hours worked per week # of hours of Pregnancy Disability Leave
12 208
20 346.5
28 485
32 554.5
40 693

Salary and Benefits During Leave

Employers who provide health insurance coverage for employees who take leave for other temporary disabilities must provide coverage for employees who take leave for pregnancy, childbirth or related medical conditions. (Cal. Code Regs., tit. 2, § 11044(c))

You can require, or the employee may choose to use accrued sick leave during the otherwise unpaid portion of PDL. You can also permit the use of sick leave benefits to supplement SDI benefits. In other words, you can integrate and coordinate the sick leave benefit with SDI as long as the employee does not receive more than 100 percent of the employee’s wages. The employee may also use accrued vacation leave to receive compensation for which the employee is eligible. But an employer may not require an employee to use vacation leave or other accrued time off during pregnancy disability leave (other than sick leave, in certain instances).

Return Rights

It is illegal for an employer to fire an employee because that employee is pregnant or taking pregnancy disability leave. Employers are required by law to reinstate employees to the same position those employees had before taking leave, and an employee may request this guarantee in writing. In some situations, an employee may be reinstated to a position that is comparable (same tasks, skills, benefits, and pay) to the job they had before taking PDL.

However, pregnancy disability leave does not protect employees from employment actions not related to their pregnancy, such as layoffs if the employee would not have been employed in the same position due to legitimate business issues.  However, proving that an employee would have been laid off regardless of whether the employee took PDL may be difficult to prove.

Beyond Pregnancy Leave

Pregnancy leave is not for “baby bonding time” but to provide time off when the employee’s health care provider states that the employee is disabled by the employee’s pregnancy, childbirth and recovery or any related medical condition. After the employee is no longer disabled, PDL does not cover time simply to stay at home with a new baby.

The FMLA and CFRA both require covered employers to provide time off for personal illness, to attend to the illness of a family member and in connection with the birth or adoption of a child. Though this sounds simple, FMLA and CFRA issues are among the most litigated of all employment law cases and can result in large liabilities.  Baby bonding leave protections in general only apply to eligible employees (mothers and fathers) who need time off from work after a biological child is born, adopted or placed with the parents for fostering and who work for employers who meet certain requirements as described below.

Baby Bonding Leave

California Family Rights Act. Effective, Jan. 1, 2021, applies to employers of 5 or more employees. An eligible employee  can take up to 12 workweeks of CFRA job protected leave within one year of a child’s birth, adoption or foster care placement. If both parents of a new child work for the same employer, each parent is entitled to up to 12 weeks of leave. Covered employees must have worked for the employer for a minimum of 12 months (need not be consecutive) and worked at least 1,250 hours in the 12 months prior to the need for leave. The employee is guaranteed 12 weeks of job-protected leave in writing, which includes continued health care coverage and job return rights. Starting January 1, 2021, if both parents of a new child work for the same employer, each parent is entitled to up to 12 weeks of leave.

Family and Medical Leave Act. The federal FMLA applies to employers with 50 or more employees and apply to family and medical leaves. An eligible employee can take up to 12 workweeks of unpaid FMLA within one year of a child’s birth, adoption or foster care placement. Covered employees must have worked for the employer for a minimum of 12 months and worked at least 1,250 hours in 12 months at a worksite with at least 50 employees in a 75-mile radius. This requirement could apply to practice owners with two practices.

Important note for employers of 50 or more employees: FMLA can run concurrently with PDL under some circumstances. FMLA and CRFA usually run concurrently, except during PDL.

The State of California Civil Rights Department website offers detailed information on these leaves of absence. Family, Medical, and Pregnancy Disability Leave for Employees in California

Employers should understand that if the requirements for covered employers are not met or if the employee does not meet the requirements of a covered employer, and the leave does not fall under another disability law, then the employee would generally not be entitled to take that additional protected “bonding leave” by law. Employers could then consider any requests for additional time post-pregnancy leave under their personal leaves of absence policies, which employers have the right to grant or deny.

CDA Practice Support offers additional information and resources related to: 

Lactation Accommodation Requirements

All employers in California are required to reasonably accommodate all employees who want to express breast milk at work.

Employers must provide a reasonable amount of break time for employees to express breast milk and provide the use of a private place, other than a bathroom, near the employee’s work area. The employee’s normal work area can be used if it allows the employee to express milk in private.

In addition, the room must comply with the following requirements:

  • Be safe, clean and free from hazardous materials, as defined in Labor Code Section 6382.
  • Contain a surface to place a breast pump and personal items.
  • Contain a place to sit.
  • Have access to electricity or alternative devices, including, but not limited to extension cords or charging stations needed to operate an electric or battery-powered breast pump.

Employers must also comply with providing access to a sink with running water and a refrigerator suitable for storing milk and if a refrigerator is not feasible, the employer may provide another cooling device, such as a cooler.

Temporary or Multi-purpose Room

While there is no requirement that an employer provide a permanent location designated solely for lactation accommodation by its employees, if a temporary location is used, it’s subject to the following requirements:

  • The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations;
  • The temporary lactation location must be private and free from intrusion while an employee expresses milk;
  • The temporary lactation location must be used only for lactation purposes while an employee expresses milk; and
  • The temporary lactation location must otherwise meet the requirements of state law concerning lactation accommodation.

If the designated room has additional uses (such as an employee break room or the employer’s office), the room must remain completely private for the time it is in use for lactation purposes.

Any employer in a multi-tenant building or multi-employer worksite may comply with providing a shared space among multiple employees within the building if the employers cannot provide a compliant location within the employer’s own workspace.

Undue hardship

For employers with less than 50 employees, the law includes an undue hardship exemption regarding the location provided for lactation accommodation. This is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature or structure of the employer's business. An employer who can demonstrate to the State of California Civil Rights Department that it is an undue hardship to find a location other than a bathroom (due to the size, nature or structure of the business) must instead make reasonable efforts to find a private and close location other than a toilet stall.

Use of Meal and Rest Breaks

Employees who wish to express break milk can be required to use the paid rest break time already provided by law. If the employee needs a reasonable amount of additional time for expressing milk beyond the normal paid rest break, the time must be provided, but it can be unpaid. Employees can also choose to use lunch break time to express breast milk, but this does not relieve you of your responsibility to provide reasonable additional time along with rest breaks.

The Labor Commissioner may issue a citation if you violate this law, subjecting you to a civil penalty of $100 for each violation, in addition to any fines or penalties for missed rest breaks.

Length of Accommodation

California law has no time limitation. All employers must reasonably accommodate nursing mothers if they request the accommodation, even if it’s beyond one year.

Compliance and Notification

Employers must develop a written policy in the employee manual or set of policies that:

  • Includes a statement that employees have a right to request lactation accommodation;
  • Includes instructions on how an employee requests an accommodation;
  • The employer’s responsibility to respond to the request,
  • A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of the law.

Employees must provide a copy of the policy to employees upon hire, when an employee inquires or requests parental leave.

An employer who fails to comply with providing break time or an adequate lactation accommodation may be fined one hundred dollars ($100) for each day an employee is denied reasonable break time or adequate space to express milk.

Recordkeeping Requirements

All written request and denial records must be maintained for (3) three years from the date of written request.

Employers should consult legal counsel prior to claiming an undue hardship or denying an employee’s request for lactation accommodation.

In the course of your role as an employer, you will likely encounter a pregnancy leave of absence. While this might be inconvenient and stressful, managing an employee’s leave of absence should be thoughtfully discussed and documented from the onset. You must do your due diligence, follow all disability laws and practice policies. Not providing the leave for your employees could be very costly to your practice.

For a list of vendors of personnel monitors for radiation, nitrous oxide and other chemicals visit cda.org.

Additional information and Notice Requirements:

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