Having a pregnancy leave policy that permits pregnant employees to take time off for childbirth is only the first step in complying with the law. As one employer recently learned, it’s just as important to have post-leave follow-up policies. We’ll explain what this employer did wrong and the post-pregnancy leave policies the employer should have had.

Acosta Tacos is a small, family-run chain of taquerias in Los Angeles. Acosta Tacos’ employee handbook simply stated that female employees are permitted to take pregnancy disability leave. The company maintained no other pregnancy-related policies and posted none of the required workplace notices.

When Acosta Tacos cashier “Tara” told her supervisor, “Victor,” that she was going into labor a month early, her leave was approved on the spot, as the company’s policy provided. Victor told Tara that he’d find someone to cover her shifts while she was out, and to call him when she was ready to return to work. No one at Acosta Tacos expressed unhappiness over Tara needing to be out, and there was no indication of animosity toward her because of her pregnancy.

Unfortunately, Acosta Tacos dropped the ball by failing to have post-pregnancy leave policies and protocol.

Two Crucial Mistakes

Acosta Tacos’ first mistake was that when Tara called Victor to tell him she was ready to return to work after being out for only a month, she was told that her position had been filled during her leave. While Tara was out, he’d hired two new employees to cover her shifts. Victor explained that he’d try to find her a new position, and in the meantime, assigned her to fill in for an absent employee.

California law requires that an employee who takes pregnancy disability leave be reinstated to her same position on returning from leave. If an employer cannot reinstate the retuning employee to her exact same position—because it was eliminated or because filling the position on a temporary basis during the leave would have created a substantial business hardship—the employee must be returned to a “substantially similar” position (unless none exist because of companywide layoffs or business closure). The employer must be able to provide objective facts demonstrating that it was unable to reinstate the employee to her same position.

The second mistake Acosta Tacos made was that it fired Tara for breastfeeding her newborn baby during her meal period.

While Tara was filling in for the absent employee, her partner brought their infant to the store so that Tara could breastfeed the baby during a meal break. Because no private space was available, Tara fed the baby in the family car in the store’s parking lot. Tara then finished out her shift.

The next day, the manager of another Acosta Tacos location asked Tara to fill in for one of his employees who was out sick. Victor objected, stating that he learned that Tara breastfed her baby on company property the night before. He told her that she couldn’t come back to work until she finished lactation. Tara protested that she needed to be able to breastfeed her baby but also needed to go back to work immediately. Victor replied that he didn’t like her attitude and terminated her.

California employers are required to provide female employees who wish to express breast milk for nursing infants with:

• A reasonable opportunity to take breaks for expressing breast milk or breastfeeding, which can be timed with the employee’s regular break schedule.
• Reasonable access to a private location to express breast milk, other than public restrooms if possible, that is in close proximity to the employee’s regular work area.

Failure to provide the time and facilities required can result in a $100 civil penalty for each violation—as well as damages and other fines if the employee files a complaint or lawsuit.

Employer Pays for Pregnancy Disability, Sex Bias

Tara filed a complaint against Acosta Tacos, as well as Victor and the company’s owner individually, with the California Department of Fair Employment and Housing (DFEH). Following its investigation, the DFEH found that the company, the manager, and the owner engaged in pregnancy disability discrimination for not reinstating Tara to her previous position and in sex discrimination for terminating Tara for breastfeeding, and for not providing her with the time and private facilities to do so. The DFEH also found that Tara’s termination was retaliation for her objections to Victor’s statement that she couldn’t breastfeed during her breaks.

Tara was awarded $20,000 in back wages and $20,000 in emotional distress damages. In addition, the agency hit Acosta Tacos with a $5,000 administrative fine.

Pregnancy Leave Policy Checklist

Acosta Tacos learned the hard way that simply having a pregnancy disability leave policy is only the first step in fulfilling an employer’s obligations under California law. Post-leave follow-up policies are just as important as having the correct leave policy.

To avoid the mistakes Acosta Tacos made, employers should make sure to have policies that address each of the following:

• Posting the required workplace notices regarding pregnancy disability leave, the California Family Rights Act, and California antidiscrimination laws (workplace posters can be downloaded at the DFEH’s website at www.dfeh.ca.gov).
• Permitting disabled or pregnant employees to take leave as mandated by state and federal law.
• Post-leave reinstatement of employees.
• Lactation time and facilities (allowing employees to express breast milk during scheduled breaks, if possible, or making additional time available to do so on a paid or unpaid basis).
• An inquiry and complaint procedure for employees who have questions or concerns about pregnancy leave and post-leave rights.

Written by BLR, Inc.

Labels: California, Employees, Employers