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Destination: Delivery / A Roadmap Through Pregnancy
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Take Leave and Keep Your Job? Yes, It's the Law

September 14, 1998|BOB ROSENBLATT

No pregnant woman wants to worry about losing her job because she takes some time off before giving birth, or because she stays home for a time with her infant.

Her right to take an unpaid leave and then return to the same work and salary is guaranteed by law.

And the same protections are offered to anybody--man or woman--who needs time away from work to deal with a serious health condition or to care for a spouse, child or parent with a serious condition.

These protections are available under two state laws and one federal statute. But lots of people don't know their rights, and even a law school professor could get confused by puzzles posed by the intersection of the three laws.

Let's unravel the mysteries.

Consider the case of Jane Smith, who is pregnant. Under the California Fair Employment and Housing Act, which covers companies with five or more workers, she can take up to six weeks' leave for a normal pregnancy. She is also permitted a total of four months--including the six weeks--to deal with any disability caused by pregnancy, childbirth or postpartum problems. If her doctor says she cannot work, she is entitled to take that unpaid disability leave.

For example, Jane might take two weeks of leave early in the pregnancy because of morning sickness, two weeks just before and after giving birth, and five more weeks later--all because of health problems. Pregnancy-related health difficulties are considered temporary disabilities under the state law.

To qualify for pregnancy-related disability leave, she must be "unable to perform one or more essential functions of her job without undue risk to herself, successful completion of her pregnancy, or to other persons," according to the state's official definition of pregnancy disability.

For instance, she might be a supermarket checker, and her doctor says it would be dangerous for her to stand on her feet for a full eight-hour shift.

If she wants to continue full-time work, she has the right to ask her employer for an accommodation that would allow her to continue working or transfer to another task.

However, if she decides in consultation with her doctor to stop working, she has an absolute legal right to do that, and to return to the same or comparable job later.

Family Rights Act Allows 12 Weeks Off

Let's say Jane has now given birth, and does not have health problems. She wants to spend some time at home with her baby. The California Family Rights Act allows her to take unpaid leave up to 12 weeks. This law applies to all businesses with 50 or more employees, and employees who have worked at least 1,250 hours in the past 12-month period.

Thus, if Jane worked at one of these companies, and she was disabled due to a pregnancy-related problem, she can potentially take seven months off without pay--four months under the pregnancy disability rules of the Fair Employment and Housing Act and 12 weeks under the Family Rights Act.

The same 12-week rights extend to adoption of a child. You must use your leave within one year of taking custody of the child.

The father of a newborn also has the right to take 12 weeks of unpaid leave, the right that any parent is allowed to "bond" with a newborn.

Under each of these laws, Jane's job is protected. She must get her old position back, or if the particular job is not available, she must be given a comparable assignment in terms of responsibility, pay and benefits.

Our second mythical case involves Ron Bellevue, who has just learned his mother suffered a stroke, and will be bedridden. Ron is guaranteed up to 12 weeks off without pay under both state law--the California Family Rights Act--and federal law--the Family and Medical Leave Act--to care for his mother. The laws give employees time off to deal with their own serious health condition, or to help a sick spouse, child or parent.

The key word is a "serious" health condition. Some examples include cancer, asthma, pneumonia, Alzheimer's disease, arthritis, diabetes, epilepsy, heart conditions, strokes, back conditions and injuries caused by accidents, according to a guide to the federal law compiled by the National Partnership for Women and Families.

The employer can ask for documentary proof of the condition. This can be satisfied with a statement from a doctor, who fills out a form certifying that there is a serious health condition, without providing details of the diagnosis or treatment.

California Law Protects Privacy

California law is more protective of privacy than the federal law, which allows the employer to ask for detailed information.

Under state law a worker "may have a son or a spouse or a parent who had a nervous breakdown, but does not have to divulge this [or any other medical diagnosis] to the employer," said Prudence K. Poppink, a hearing officer with the state Fair Employment and Housing Commission. Under state law, if the worker obtains a form filled out properly by the doctor, it must be accepted by the employer.

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