That answer may depend on whether you are a California small business owner or an employee
I’ve recently had 3 different small business owners/office managers contact me recently with questions about performance, discipline, and/or terminating a pregnant employee and also how pregnancy leaves work.
In a nutshell, the question is, can I discipline and/or terminate a pregnant employee or does the fact that they are pregnant give them a golden ticket in the workplace? How long does pregnancy or pregnancy-related leave last?
Photo by Suhyeon Choi on Unsplash
No Discrimination
First, FEHA (Fair Employment and Housing Act) covers ALL employers in California, regardless of size. FEHA is the state’s civil rights act. The agency prohibits discrimination and harassment in both the employment and housing worlds. FEHA prohibits employers from discriminating against pregnant workers. EEOC also covers discrimination and harassment at the federal leve
And, yes, there are still stories today of businesses firing an employee as soon as the employee says that they are pregnant. That’s clearly discrimination and is illegal. The ethical/morale issue is something we can discuss later if you want.
Business owners have a legitimate fear about who is going to do the work when an employee takes an extended leave. So, they sometimes have a knee-jerk reaction. While that’s understandable, employers have to comply with the laws. So, that leads us to the second regulation.
Pregnancy-related Disability Leave
Second, is the Pregnancy-Related Disability Leave (PDL) act. This act covers California employers with 5 or more employees. PDL allows an employee to take up to 17 1/3 weeks of protected leave due to pregnancy or pregnancy-related conditions. This leave is protected leave because (1) employers have to grant the time off, (2) employees must be reinstated to their original positions, and (3) employees can not be retaliated against for requesting the leave, taking the leave, etc.
PDL for the smaller employer (under 50 employees) is pretty straight-forward. When a healthcare provider says that the employee needs time off, the leave starts. Likewise, when a healthcare provider says the employee is cleared to return to work, the leave ends.
Find the DFEH’s Pregnancy Disability Leave FAQs here.
Leave interaction during Pregnancy
Thirdly, employers with 50 or employees need to coordinate PDL with FMLA (but not CFRA). This is a complicated integration between the leaves. Please let me know if you have specific questions about this interaction.
Baby Bonding Time
Lastly, is the baby bonding leave options. FMLA/CFRA covers baby bonding for employers with 50 or more employees and is part of the leave integration above. California also enacted New Parent Leave for employers with 20-49 employees a couple of years ago. All of those leaves require up to 12 weeks of unpaid leave for baby bonding. In addition, EDD has a program called Paid Family Leave (PFL) which is a partial-wage replacement for up to 6-weeks for baby bonding. PFL isn’t a protected leave. Smaller employers (under 20 employees) aren’t covered by a requirement to grant additional time (after PDL) or to reinstate an employee who takes additional time off.
Discrimination and Performance/ Discipline during Pregnancy
Here’s where businesses sometimes feel stuck. Sometimes, there are pregnant employees who aren’t performing well. Each of businesses who I talked to about their issues, had a performance (and/or discipline) component.
Case One – A Costly Mistake
In one case, the pregnant employee had made a major mistake and cost the business a LOT of money. She tried to blame a couple other employees but the paperwork clearly had her name and signature on it. Previously, she had been verbally counseled several times about the importance of checking the paperwork and ensuring that everything was correct. The business owner had a solid reason for terminating the employee. The termination letter was clear, had a complete description of the events and included a rough timeline of the verbal counselings. After a discussion with an attorney, they terminated the employee with confidence.
Case Two – Accumulation of Mistakes
In the second case, the pregnant employee had been working there for a couple of years. In looking back over her employment history, she’d been written up several times. But the write-ups tended to be clustered — the office manager would write her up 2-3 times in a 6-8 week period. Then nothing for several months. And, while most of the warnings (verbal and written) were “policy violations,” she wasn’t doing the exact same thing over and over again.
She didn’t following the proper process for workflow, she didn’t get a required signature on a key document, she was using her cell phone during working hours, and she didn’t complete her tasks in a timely manner.
After some discussion, the employer determined that they didn’t want to terminate the employee at this time. They are going to monitor the employee and the next time she violates a policy (especially one that has come up before), give her a cumulative final warning. In the past, the warnings have been very specific (which normally I LOVE).
But, in this case, given the number of warnings in the past, they are going to give her a more general warning that includes an outline the specifics in the past year: the multitude of verbal warnings as well as the written warnings. Then, it’ll have a statement that says something like, any future violations of any policy will lead to immediate discipline, up to and including termination of employment.
Note – they aren’t going to list everything. Just the violations in the past 12 months and, depending on what the final policy violation ends up being, they may only include the counseling and write-ups from 2019 (even if that’s only the past 5-6 months).
Case Three – Performance and Training
The last situation that came up was with a new hire (of about 4 months). The owner wonders if he made the right choice. He didn’t feel that the new hire/introductory time gave him enough time to see if she could master the work. Unfortunately, this is a very small business with less than 5 employees and there isn’t another position to move her into. The position requires exacting, details to be accurately recorded. The employee has made a number of mistakes. None of them have been significant in terms of time or money but only because someone else is checking the new hire’s work.
My question is: was the training effective? Does she know and understand the process and why it is critical that the numbers are accurate?
The business owner said that he thought the individual training the new hire had done that. However, he was honest in that he wasn’t 100% confident that the training had been satisfactory. He is often out of the office and wasn’t closely monitoring the training process.
Together we came up with a plan to implement a 30-60-90 day performance improvement plan (PIP). During the PIP, the business owner, trainer, and new hire will meet together regularly to discuss the work, the process, any mistakes and what is going well. If she doesn’t show immediate, sustained improvement, further corrective action will be taken, up to and including termination.
Notes:
New Hire/Introductory time — remember we no longer say “probationary period.” The word probationary indicates that there is a greater right to employment after that period is complete. We always want to retain the at-will employment status. So, if you have any previous documents that may still refer to a probationary period, change it to a new hire or introductory period.
Last, but not least, remember, I’m not an attorney and this isn’t legal advice. These are best practices for human resources in California. If you have a specific incident/question, contact your employment law attorney. If you need a referral, contact me.