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California Employment Law

We are are a company of just 1 employee (me,...

Resolved • Response time 16 minutes

3 Apr 2013

We are are a company of just 1 employee (me, the owner/founder who is not paid and I have 1 person on salary who is also a part owner.) My 1 employee is pregnant. What are the rules/laws around paid and unpaid leave, continuation of healthcare (which I provide today) and job protection for companies this size?
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3 Apr 2013

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California Employment Lawyer's response
3 Apr 2013
Patrick, Esq.
Patrick, Esq.
Hello and thank you for entrusting me to answer your question. Only employers with 5 or more employees are bound by California's Pregnancy Disability Leave Law (PDLL), which requires such employers to provide pregnant employees with a reasonable period of protected job leave not to exceed 4 months. Other laws, such as the FMLA or California's Baby Bonding Leave Law, apply only to employers with 50 or more employees. Although there is no specific legislative act that requires employers with less than 5 employees to protect the jobs of pregnant employees, suits for discrimination have and can be brought on the ground that the termination of a pregnant employee constitutes a violation of the state constitution. Specifically, Article I, § 8 of the California Constitution prohibits discrimination or perferential treatment of hiring and employment of "....any individual or group on the basis of race, sex, color, ethnicity, or national origin..." While the constitution does not specify pregnancy, pregnancy is arguably encompassed within "sex-based" discrimination. Thus, although the law does not expressly prohibit employers with less than 5 employees to terminate a pregnant employee, the law arguably requires employers with less than 5 employees to reasonably accommodate pregnant employees out on leave and to treat them no differently than they would any other employee out on leave for a similar length of time. Since you only have one employee, there is obviously no yardstick for how other employees would or have been treated who need to take time off work. However, the general guideline is to provide any and all accommodations that do not impose "undue hardship." So, if you can hire a temporary worker or get by with no support staff, that would be advisable in order to avoid any charge that you discriminated on the basis of gender. With regard to health care continuation, California's PDLL, referenced above, requires employers to maintain and pay for coverage under a group health plan for an employee who takes PDLL leave at the same level and under the same conditions as if the employee had continued working. However, as PDLL does not apply to employers with less than 5 employees, this again is inapplicable. There is no requirement that employers pay employee's out on pregnancy leave their ordinary salary. 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 to you.
3 Apr 2013
Customer reply
3 Apr 2013
Thanks - this is very helpful. I have no intention of discontinuing my 1 employee's employment assuming she takes a reasonable amount of time. At some point if she wanted to extend her leave for months and months, I would certainly need to backfill the spot. I may also be willing to continue healthcare coverage (or the 50% I currently pay.) Otherwise it sounds like there is no paid time off she can expect. She has taken all her vacation time already. So the day she goes on mat leave I may stop her payroll. And then restart it when she returns. Correct? Appreciate it!
3 Apr 2013
California Employment Lawyer's response
3 Apr 2013
Patrick, Esq.
Patrick, Esq.
Thank you very much for your reply. Your summary of the law is correct. I should note, however, that while employers in this circumstance are not required to pay any portion of the employee's salary while they are out on leave, the employee may be eligible for short term disability through the State of California. SDI does not provide any sort of job protection or otherwise affect what I have described above, but this is nonetheless a form of wage replacement which may be available under the circumstance. Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you. Kindest regards.
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Patrick, Esq.
Patrick, Esq.
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3 Apr 2013
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