a poster on another board from a Canadian company that has only 2 employees in California and one of them is pregnant. With only 2 CA employees, is there ANY protected leave required, or ANY income replacement other than SDI?

Thanks. I HATE California maternity leave issue. :mad:

We also have Paid Family Leave (PFL), which allows a mother (or father for that matter) up to 6 weeks off in a twelve month period to "bond with a new family member." http://www.edd.ca.gov/direp/de2511.pdf

Thanks. I take it the reason that there is no "minimum employees" for this is because it is funded by SDI deductions. This will help my Canadian payroll person. :)

I would strongly recommend that she be granted the time that her doctor certifies her as disabled, up to 4 months. There are ways to get around the minimum employee requirement, and employment lawyers smell fired pregnant women the way sharks smell blood.

So why does the law bother implementing a minimum employee standard, if employers who fall below it have to adhere to the standard as well?

Have any of these attorneys tried to manage a two-person office with only one person for four months?

Sorry, you'll get no sympathy from me. I have resigned myself to not having another child because I can't get a job with a firm big enough to guarantee me a decent maternity leave (not that I would want to leave my current job!).

The company has options- it can hire a temp, or offer a severance package, or hire a third employee and hope that the business will support it by the time the pregnant employee can come back.

Would the same hold true if the employee had pnemonia? Would the employer still be required to hold the job open?

Nope, the claim would be based on the CA constitution, which prohibits gender-based discrimination (and pregnancy discrimination is a type of gender disc).

I have to echo cbg's question. The minimum employee level is supposed to be so small businesses are not unfairly burdened by the loss of the employee's services. While you may be able to successfully argue in some cases that the employee could be replaced without harm to the employer, a two person operation wouldn't have that difficult of a time showing how a 50% staff reduction would be undue hardship. I understand Megan's caution towards giving a jury a sympathetic story to hear, but I can't imagine the minimum requirement being ignored without some kind of discrimination horror story to back it up. Then again, I am not a lawyer.

Also, BSPCPA did not point out that the PFL is not protected leave. I think Pattymd knows that from the many other similar posts, but I wanted to make sure.

Megan, I'm not trying to start a fight.

But if an employee who is pregnant can get up to four months off despite being below the employee limit, and an employee (gender unspecified) with a non-maternity condition cannot, could not any male employee who needed extended leave claim gender discrimination? Could not a woman over childbearing years who needed extended medical leave claim age discrimination?

As you're describing it, a woman who is pregnant has more rights than anyone else. And that's discrimination.

Pregnancy discrimination is classed as sex discrimination because only one gender suffers from it. The male and older female employees who need leaves are protected by FMLA, CFRA, and disability discrimination laws. Realistically, pregnant women ARE more likely to be discriminated against - most employers worry that they won't return from their leave.

Fundimentally, it is in society's best interest to protect pregnant women, particularly employed pregnant women. We want children to be raised in the best possible environment, and having mama lose her job isn't going to help that. This is at a cost of 8-17 weeks of having to hire a temp or what have you. I think it is worth it.

But we're talking about situations where FMLA and CFRA etc. do not apply. Employers of under 5 employees, which is what we're talking about here, do not have FMLA protection or CFRA protection; nor are they subject to discrimination laws. You're describing a situation in which a pregnant woman is entitled to keep her job when someone who breaks his leg or contracts pneumonia does not. I'm sorry, but I fail to see how that is in society's best interest. Even the Pregnancy Discrimination Act does not grant a woman who is pregnant MORE rights than anyone else; it grants her EQUAL rights. If the pregnant woman is entitled to keep her job, so should the the other hypothetical employees. And if they can't, why should she?

(Same tone)

The difference is that there is no societal benefit to broken legs and pneumonia, like there is with babies. Also, if you tell the interviewer, "I got fired from my last job because they couldn't accommodate my broken leg," you are much more likely to get hired than, "I got pregnant, and they couldn't accommodate my maternity leave."

And keep in mind, I am not saying that these are protected rights under California law. I certainly would not risk getting pregnant at a firm with less than 5 employees. What I am saying is that a clever attorney can make a good argument that the decision to fire the pregnant employee was a wrongful termination based on public policy, rooted in the CA constitution. From an employer's perspective, that is too big a risk. But from an employee's perspective, if you really need a job, it is too big a risk as well.