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Patrick, Esq.
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Category: California Employment Law
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We are a small (10 employees) California construction company.

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We are a small (10 employees) California construction company. One of our employees is about three months pregnant and just found out that she has to be on bed rest until the baby is born. Are we legally required to keep her position open to her after she has the baby? We 're looking at about six months. Please let me know. Thanks, Nancy
Hello and thank you for entrusting me to assist you.

The laws governing pregnancy disability leave can certainly be overwhelming, as you're dealing with an intersection of state and federal law and different state law programs, all applying to employers of varying size. For a small company, however, things are rather straight forward.

Specifically, the California Pregnancy Disability Leave Law (PDLL), contained in the Fair Employment and Housing Act, applies to employers who employ five or more employees and applies to all employees, irrespective of the amount of time they have been employed. PDLL requires employers to provide for up to four-months of protected leave per pregnancy that can be taken on a continual basis or in smaller increments, as needed.

Specifically, Government Code 12945 states as follows:

"(a) 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
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."

An employee who invokes their right to take leave under the PDLL cannot be terminated in retaliation for taking such leave. However, once the 4 month period has expired, they may be terminated (note that larger companies would be bound to adhere to an additional requirement to permit "baby bonding" time of an additional 12 weeks).

Only if the employee has unequivocally indicated they plan to be out for longer than the four months permitted by PDLL would their termination be proper. Otherwise, their position must be held to allow them to return at that time.

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

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Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
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