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Patrick, Esq.
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Category: California Employment Law
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One of my employees went on maternity leave in February, 2011

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One of my employee's went on maternity leave in February, 2011 she phoned me yesterday to say she is ready to return to work. How do I stand as the employer do I have to legally take her back after this length of time off and if so does she return to her employment on the same hours. I am currently fully staffed and obviously had to replace her position with another employee.
Thank you for your help in answering this issue?

Vicky, Pomona, CA
Hello Vicky,

I hope you are doing well today. How many employees does your company employ? How long was this indvidual employed before they took leave?

I very much look forward to assisting you regarding this matter.
Customer: replied 3 years ago.


Hope you are doing well too. I currently have 22 employees.

The employee DOH was 9/25/2009.

Let me know if you require any further information.

Thank you

Thank you very much for your reply.

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 relatively 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
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."

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 at any time and for any reason pursuant to the doctrine of "at will" employment codified at Labor Code 2922.

Note that companies with 50 or more employees would be bound to adhere to an additional requirement to permit "baby bonding" time of an additional 12 weeks. Beyond this, however, an employer is free to terminate employees on maternity leave as they please.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

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

Very best wishes and happy holidays to you.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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