[COLUMN] Reasonable accommodation for pregnancy-related disability

Q: I worked in healthcare in Los Angeles. Several months ago, I was pregnant. My doctor ordered me to take leave from work because my pregnancy was high-risk. My employer granted me leave. However, two weeks into my leave, I miscarried, and due to complications, I had to have surgery. My doctor advised me to go on several weeks of leave in order to heal. My employer told me that since I was no longer pregnant, I had to return to work in two weeks. My doctor would not medically clear me to go back to work. After two weeks, I was fired. Do I have any remedies?

A: Yes, you do! Under California’s Pregnancy Disability Leave Law, pregnancy (and all its related medical conditions such as severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth) is considered a temporary disability. A miscarriage and its attendant complications are pregnancy-related, and thus covered by California’s pregnancy law.

Similar to temporarily-disabled employees, a pregnant employee (or an employee who has suffered a miscarriage) is entitled to reasonable accommodation. The employer must enter into a good-faith, interactive process to determine if there is a reasonable accommodation that would allow the employee to keep working. An employer’s failure to engage in the interactive process in good faith is itself a violation of California law.

Two of the most common ways to extend reasonable accommodation to the employee are:
1) to grant the employee enough medical leave to resolve their temporary disability, and
2) accommodate the employee’s return to work with restrictions.

The employer may consult with the employee to find out what the employee’s limitations are that prevent her from doing the job, finding out how the employee could do her job with a reasonable accommodation, and identifying potential accommodations and assessing their effectiveness.

Despite abundant information available regarding pregnancy and disability discrimination laws, some employers fail to comply. Consider the following report from mynewsla.com:
Pamela Almodovar worked as a manager at a Marriott hotel in Arcadia, CA. In June 2020, she advised her employer that she was pregnant, and two months later, per her doctor’s orders, requested disability leave due to a high-risk pregnancy. She was allowed to work with restrictions but the employer allegedly “responded to her pregnancy restrictions with hostility.” She was assigned to work at another location that increased her commute from 10 miles to 50 miles.

Per doctor’s orders, she went on leave and stopped working. When she gave birth, the baby was stillborn. Her employer initially assured her she still had a job. However, when her doctor ordered that she remain on leave until the end of the year, the employer “began applying a great deal of pressure” on her to go back to work, threatening termination if she did not comply. Aldomovar, fearful of losing her job, talked to her doctor, who cleared her to work with restrictions. However, when she reported to work, her employer told her that they had decided to end her employment rather than allow her to come back to work with restrictions.

Aldomovar sued the employer alleging wrongful termination, sex, pregnancy and disability discrimination, and retaliation. The case is currently pending at the Los Angeles Superior Court.

Pregnancy discrimination is defined as discrimination on the basis of pregnancy, childbirth, and related medical conditions. Prohibited conduct includes firing, demoting, harassing, retaliating, refusing health benefits, denying promotion, denying medical leave, and treating a pregnant employee differently.

Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave. Any leave, seniority, or reinstatement rights other workers get from the employer when they cannot work for health reasons should be available to pregnant women and new mothers who are temporarily physically disabled.

Discriminated pregnant employees may recover the following remedies: back pay, hiring, promotion, reinstatement, front pay, compensatory damages, including emotional pain and suffering, and in more serious violations, punitive damages. Aggrieved employees may also recover attorneys’ fees, expert witness fees, and court costs.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]
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