An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

A woman is “disabled by pregnancy” if, in the opinion of her health care provider, she is unable because of pregnancy to perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons. 1080 An employee also may be considered to be “disabled by pregnancy” if, in the opinion of her health care provider, she is suffering from severe “morning sickness” or needs to take time off for: prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; childbirth; loss or end of pregnancy; or recovery from childbirth, loss or end of pregnancy. This list of qualifying conditions is non-exclusive. 1081 A woman may be entitled to pregnancy disability leave if she is disabled by any medically recognized physical or mental condition related to pregnancy, childbirth or recovery from pregnancy or childbirth. 1082 Related medical conditions include, but are not limited to, lactation-related medical conditions such as mastitis. 1083 B. L ENGTH O F L EAVE An employee is entitled to up to four months (i.e. 17- 1/3 weeks or one-third of a year) of leave for the period the employee is actually disabled by pregnancy. 1084 For employees who work more or less than 40 hours per week, or who work variable work schedules, the number of working days that constitutes “four months” is calculated on a pro rata or proportional basis. 1085 Schools must provide pregnancy disability leave even if it has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees. 1086 A school may not treat employees disabled by pregnancy less favorably than it treats other disabled employees. 1087 Thus, if a school has a more generous leave policy for other temporarily disabled employees than that provided for by the FEHA, the school is required to provide equal leave to employees disabled by pregnancy. 1088 Leave may be taken intermittently or on a reduced work schedule when medically advisable, as determined by the employee’s health care provider. 1089 Sanchez v. Swissport, Inc. 1090 The California Court of Appeal has held that, under the Fair Employment and Housing Act, an employer may have an obligation to reasonably accommodate an employee disabled by pregnancy after she has exhausted all of her statutorily protected pregnancy disability leave. Specifically, the Court held that additional unpaid leave may be a reasonable accommodation. C. U SE O F V ACATION A ND S ICK L EAVE A school may require an employee to use any of her accrued sick leave during the otherwise unpaid portion of her pregnancy disability leave (“PDL”). Also, a woman may request the use of her sick leave, vacation leave and any other leave credits she has in order to receive compensation during the unpaid portion of her PDL. Extending the four-month PDL by adding sick leave, vacation leave or any other leave credits to the pregnancy disability leave is at the discretion of the school. Such requests should be considered in the same manner as similar requests for non-pregnant employees.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 262