The Good Mother and The Workplace

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To some extent, California law protects the phases of mothering, from pregnancy to caring for a sick child

By KAREN V. CLOPTON

Clopton

The title of this article reflects the indisputable fact that women bear the babies, nurse the babies and, more often than not, remain the primary caregivers of young children in our society. While parenting as children get older often becomes more of a joint effort, the focus of this article is on how women can be good mothers and survive the challenges of the workplace.

The article is not intended to offend or exclude men as parents of babies and young children, since there are certainly wonderful fathers who are intimately involved in the full-time raising of babies, even on occasion in the absence of a mother. However, the focus of this article is on the mother.

Mothering has several phases that can affect the workplace and the mother's ability to work: pregnancy; recuperation from childbirth; bonding with the baby; nursing or lactation period; obtaining qualified childcare; participating in the child's education; and attending to a sick child (both for short-term illness and long-term serious illnesses).

Each of these areas can impact the workplace and each mothering phase is protected by California law to a certain extent. The purpose of this article is to inform working mothers, prospective mothers, attorneys and employers of their respective rights, obligations and responsibilities under state and federal law.

Pregnancy

While having a baby is certainly an expensive proposition, in most instances it can no longer cost working mothers their employment. Both state and federal law prohibit discrimination in employment on the basis of pregnancy.

Under federal law, the Title VII Pregnancy Discrimination Act of 1978 (PDA), 42 USC §2000e(k), Title VII §701(k), and the EEOC Pregnancy Discrimination Act regulations 29 Code of Federal Regulations (CFR) §1604 govern pregnancy discrimination.

The FEHA protects pregnant women working for private and public employers with five or more employees. California pregnancy protections for employed women include:

• The right to take a doctor-certified disability leave before or after the baby is born;
• The right to return to a job after taking a disability leave for four months or less;
• The ability to transfer to a less strenuous or hazardous position during the pregnancy;
• The right to reasonable accommodation based on the advice of the woman's physician; and
• The right to pregnancy-related medical coverage if medical benefits are provided by the employer.

Pregnancy disability leave

When an expectant mother has to take time off from work for medical reasons related to pregnancy or childbirth, she is usually entitled to some kind of paid pregnancy-disability coverage. Most employers are part of California's State Disability Insurance (SDI) system, but some are not. Some employers provide disability coverage through another plan, and some employers provide additional coverage.

SDI benefits are available to most working women who are temporarily disabled by pregnancy. The period of coverage depends on the length of time the doctor certifies that she is disabled.Standard SDI payments for pregnant employees include up to four weeks before birth, six weeks after vaginal birth, or eight weeks after a Caesarean birth.

Eligible employees receive two-thirds of their average weekly wage at the time of temporary disability, up to a maximum of $490.

If the woman's physician certifies that she is disabled, she may also be eligible for paid pregnancy-disability leave longer than standard SDI payments.

Whether pregnancy-disability leave is paid or unpaid depends on the employer's personnel policies and whether employees are covered by disability insurance. Women who work for larger companies often collect SDI during the eight to 12 weeks they are disabled by pregnancy and childbirth, and after that time has elapsed, they may take additional unpaid leave under the California Family Rights Act which runs concurrently with the federal Family Medical Leave Act.

Lactation accommodation

Under California Labor Code §§1030-1033, "every employer, including the state and any political subdivision, shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid."

In addition, "the employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee's work area, for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section."

Family and medical leave

The right to unpaid family and medical leave is available to either parent to care for a newborn, newly adopted child or foster child. It also is available for a serious health condition affecting the employee, child, spouse or employee's parent. If the employer pays for a share of health benefits, the employer must continue to make those payments while the employee is taking this unpaid leave.

Under federal law, the Family and Medical Leave Act (FMLA) 29 USC §2601 et seq. and the U.S. Depart-ment of Labor (DOL) FMLA regulations 29CFR §825.100-800 govern family and medical leave discrimination. In California, the California Family Rights Act (CFRA) Cal. Gov. Code §12945.2 and Fair Employment and Housing Commission (FEHC) CFRA regulations 2 CCR §7297.0 et seq. govern.

The California Family Rights Act (CFRA) requires private and public employers with 50 or more employees in a 75-mile radius to grant an unpaid family leave of up to 12 weeks annually to eligible employees. To be eligible to take the leave, the employee must have worked for the employer for at least a year and must have worked for at least 1,250 hours during the year before the leave.

Many employees confuse pregnancy-disability leave and family leave. They are two separate laws with different requirements and specifications. However, many employees are eligible to combine both leaves after the birth of a child.

For example, at the end of a standard eight to 12 week doctor-certified pregnancy-disability leave for which most employees will collect SDI benefits, a CFRA-eligible employee may request an additional CFRA/FMLA leave of up to 12 weeks. If an employee is experiencing a difficult pregnancy, she could potentially take up to four months off before and after the birth of the baby under the pregnancy-disability leave law, and then request a CFRA/FMLA leave.

Child's education

Working mothers often have a hard time attending their children's school functions during their working hours. Yet recent research shows there is a compelling connection between parental involvement with a child’s education and the child's academic performance.

California Labor Code §230.8 allows parents, grandparents and guardians who work for employers with 25 or more employees to take up to 40 hours off from work each year to participate in school and licensed day care activities.

Employees must first use vacation, personal leave or compensatory time off for this purpose, or may take unpaid time, if provided by the employer.

An employee eligible for time off, but who is dismissed or discriminated against for trying to use it, may contact the California Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE). In addition, an employee may file a complaint with the DLSE within six months after the occurrence of the violation.

Caring for a sick child

California Labor Code §233 requires all private and public employers who offer paid sick leave to allow employees to use a portion of that sick leave to care for an ill spouse, parent or child. The employee can use one-half of the employer-provided sick leave time for the care of family members.

If the employer provides an employee with 12 days of paid sick leave each year, the employee could use up to six days each calendar year for family members.

As used in this section: "child" means a biological, foster, or adopted child, a stepchild, a legal ward, a child of a domestic partner, or a child of a person standing in loco parentis.

The law covers short-term illnesses of family members, not long-term serious health conditions. A CFRA leave cannot be extended by use of this sick leave time. This law is enforced by the Division of Labor Standards Enforcement (DLSE) in the state Department of Industrial Relations.

Family leave under CFRA and the FMLA is also available for a serious health condition affecting the employee, child, spouse or parent. A serious health condition is an illness, injury, impairment or physical or mental condition that involves some kind of in-patient care or continuing treatment by a health-care provider.

Karen Clopton is the chief of operations and corporate counsel for the San Francisco State University Foundation Inc. She is an employment law and traditional labor relations expert.

MCLE ASSESSMENT TEST

Answer the following questions after reading the MCLE article on mothers in the workplace. Use the answer form provided to send the test, along with a $20 processing fee, to the State Bar. If you do not receive your certificate within four weeks, call Ibrahim Bah at 415-538-2028.

1. Pregnant employees can lose their jobs because of their medical condition.
2. Pregnant workers are entitled to four months paid maternity leave.
3. Nursing mothers have a right to express milk during work hours in a private place.
4. Employers can stop paying for health benefits during family leave.
5. Only full-time employees of large companies are eligible for protected family medical leave.
6. Pregnancy disability leave and family medical leave are the same.
7. A working mother can take unpaid family leave to take care of her child with a serious medical condition.
8. Only mothers are allowed to take time off to participate in their young children's school activities.
9. Working mothers are entitled to use their paid sick leave to care for their dependent children.
10. Pregnant women are entitled to a temporary transfer to a less strenuous job during pregnancy.
11. Daycare facilities are not included in the statute allowing employees time off to participate in children's school activities.
12. State disability insurance benefits are provided to all California workers.
13. A toilet stall is legally acceptable as a private place for expressing breast milk.
14. The right to unpaid family and medical leave is only available for care for newborns.
15. Grandparents can take up to 40 hours each year to participate in their grandchildren's school activities.
16. An employee may file a complaint with the Department of Labor Standard Enforcement if she is dismissed or discriminated against for attending school activities.
17. All private and public employers who offer paid sick leave must allow employees to use that sick leave to care for a sick child.
18. A sick child under the law refers only to an employee's biological child.
19. Sick leave and family medical leave are the same.
20. Family medical leave can be extended for a sick child with the use of sick leave time.

Certification

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