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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7218
Experience:  Significant experience in all areas of employment law.
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I have a small manufacturing co

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I have a small manufacturing co. in southern california and one of my plant worker is pregnant. I received a limited (modified) work duties through her doctor upon my request. based on the limited work duties, she cannot lift, carry, push, pull anything over 10LB, and should avoid any harsh chemicals (used for cleaning). it will be very hard to accommodate the "over 10LB". It is hard for me to ask other employees to DROP what they are doing every time to carry for her, lift for her, ETC. avoiding chemical is actually easy, I can send her home 30min early during the end of day cleaning... can I ask her to not come in while she is pregnant? but that her position will be available when she is ready to return to work w/o having to worry that I might be sued for wrongful termination?? should I and can I turn to my workers comp co or the EDD for guidance? pls advise. thank you, XXXXX XXXXX
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Susan,

Thank you for entrusting me to answer your question.

Pursuant to California's Pregnancy Disability Leave Act, codified at Government Code 12945 et seq., it is unlawful for ". . .an employer to refuse to provide reasonable accommodation for an employee for conditions related to pregnancy, childbirth, or related medical conditions, if she so requests, with the advice of her health care provider."

Typically, an accommodation is "reasonable" if it does not impose undue hardship on the employer. ("...Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation.") An employer must also typically engage in an interactive process with the employee to determine what accommodations can be made.

What is "reasonable" under the circumstances is a "question of fact," meaning that there is no set rule and each case must be evaluated on its own merits. However, courts have held that a modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases." Thus, it is "reasonable" if it appears to be "feasible" or "plausible."

Attempts to find "reasonable accommodations" should typically be documented in writing.

If there is no way to reasonably accommodate a pregnant employee, they can be asked to take time off from work, but California's Pregnancy Disability Leave Law protects a pregnant employee's job for up to 4 months. Specifically, Government Code 12945(a) states as follows:

In addition to the provisions that govern pregnancy,
childbirth, or a related medical condition in Sections 12926 and
12940, each of the following shall be an unlawful employment
practice, unless based upon a bona fide occupational qualification:
(1) For an employer to refuse to allow a female employee disabled
by pregnancy, childbirth, or a related medical condition to take a
leave for a reasonable period of time not to exceed four months
and
thereafter return to work, as set forth in the commission's
regulations. The employee shall be entitled to utilize any accrued
vacation leave during this period of time. Reasonable period of time
means that period during which the female employee is disabled on
account of pregnancy, childbirth, or a related medical condition."

Finally, you asked: "Can I turn to my workers comp co or the EDD for guidance?"

The EDD and workers comp carriers typically do not provide information or advice on these subjects.

So to summarize, an employer need not accommodate an employee's pregnancy related limitations if there is no reasonable way to do so. What is "reasonable" is a question of fact and depends on whether the accommodation is "feasible" or "plausible." If no reasonable accommodation can be made, a pregnant employee is entitled to up to 4 months of protected unpaid leave.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
Expert:  Patrick, Esq. replied 2 years ago.
In case my original answer was unclear or insufficient on this point (which I realize it may have been), here is a very helpful guide from the EEOC that discusses what makes accommodations "reasonable." Although it is discussing "accommodations" in the context of the federal Americans With Disabilities Act, the same standards basically apply. It may help you to review it. http://www.eeoc.gov/policy/docs/accommodation.html

Again, I would be very grateful for your accept so that I may receive credit for assisting you. Accepting will not result in an additional charge to your account but is necessary in order for me to be compensated for my time.

Very kindest regards.
Customer: replied 2 years ago.
thank you, XXXXX XXXXX things:
1) I just notice that my questions may be posted, that, its not private from the Disclaimer Section just before receiving your answer, PLEASE delete my full name or at least the last name ( had I known before, I would not have used my full name!)
2) asking the employee to take 4 months off b/c I am unable to accommodate will not expose me of ANY backlash (ie law suit)? what type of documents should I have on file for this procedure (ie just a letter is sufficient?)
thank you
Expert:  Patrick, Esq. replied 2 years ago.
Hello again. I will alert the moderators to have your personal information removed from this posting. Had I notice your last name was included, I would have already initiated that process on my own. Sorry for that.

"Asking the employee to take 4 months off b/c I am unable to accommodate will not expose me of ANY backlash (ie law suit)? what type of documents should I have on file for this procedure (ie just a letter is sufficient?)"

People file frivolous unsubstantiated lawsuits all the time, and I can't predict what will or will not happen in a given instance. I can only provide legal information. Legally speaking, an employer is under no obligation to continue to pay a pregnant employee who cannot perform the essential functions of her position with reasonable accommodations. In such instance, the law clearly provides that the employee may be sent home for up to 4 months of protected job leave.

It would be very wise to document communications with a pregnant employee which demonstrate your efforts to provide reasonable accommodations, and any other documents or proofs which indicate that the accommodations required are not reasonable because they would put an undue strain on the business. The employee should also typically be informed in writing of their right to return to work within four months, that way they do not believe they are being terminated or fall under the mistaken impression that they have longer than 4 months of protected leave.

I sincerely XXXXX XXXXX this clarifies my answer and again would be very grateful for your "accept."

Best regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7218
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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