Disability versus unemployment during maternity leave

Asked about 2 years ago - Montebello, CA


I am pregnant for the second time and am wondering if I am eligible for unemployment? I am pregnant for the second time via IVF. The first time was traditional pregnancy that ended up being high risk. Would I be eligible for disability insurance as well or isit one or the other?


Attorney answers (2)

  1. Marilynn Mika Spencer

    Contributor Level 20


    Lawyer agrees

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    Answered . (1) Very generally, unemployment is for when you are able to work and disability is for when you are not able to work. You cannot get them both at the same time, as qualifying for one will disqualify you from the other. (2) Your fertility impairment may allow you unpaid time off work during your pregnancy as a reasonable accommodation for your disability. This assumes the condition meets the definition of "disability" under the law, which it is likely to do, especially under California law. (3) You have the right to be from discrimination at work because of your pregnancy. (4) You have family leave rights.

    To elaborate a little on unemployment eligibility: Generally, a person claiming unemployment benefits (a “claimant”) is eligible for benefits if he or she is: (1) out of work due to no fault of his or her own; AND (2) physically able to work; AND (3) actively seeking work; AND (4) ready to accept work. Details about eligibility for unemployment benefits can be found on the web site of the California Employment Development Department (EDD) here: http://www.edd.ca.gov/Unemployment/FAQ_-_Eligib...

    Pregnancy discrimination is unlawful under California and federal law.

    FEDERAL RIGHTS: In 1978, Congress amended the Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17, by passing the Pregnancy Discrimination Act.

    Under the Pregnancy Discrimination Act, "discrimination" means to treat a pregnant employee differently from non-pregnant employees, and adversely. The employee must be able to make a connection between the discriminatory treatment and the protected status (being pregnant). In other words, the employee will have to show that her pregnancy is reason the employer is treating her adversely. There are various ways to do this. Negative comments from supervisors or management; a sudden change in treatment (for the worse) as soon as or shortly after the employer learns about the pregnancy or the effects of pregnancy; or other incriminating conduct. Note it is not unlawful for an employer to apply the same leave of absence policy to pregnant and non-pregnant employees.

    For information on pregnancy discrimination, see:

    For information on the Pregnancy Discrimination Act, see:

    This law is enforced by the Equal Employment Opportunity Commission (EEOC). www.EEOC.gov

    Under federal law, leave taken for an employee's incapacity due to pregnancy, childbirth or related medical conditions is governed by the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA), just like leave for any other “serious health condition” of an employee. See my Avvo guide to the FMLA for more information: http://www.avvo.com/pages/show?category_id=6&pe....

    CALIFORNIA RIGHTS: California employers must comply with federal law, as above, and also must comply with state law. The California pregnancy disability leave law, Government Code section 12945(a) (PDLL), is part of the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA). The PDLL requires employers to provide employees up to four months of unpaid leave for disability caused by pregnancy, childbirth or a related medical conditions.

    Under some circumstances, an employer may be required to transfer an employee affected by pregnancy, childbirth or related medical conditions to a different job.

    (continued in Comment below)

    *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your... more
  2. Kristine S Karila

    Contributor Level 16


    Lawyer agrees

    Answered . More facts are needed to help you. Are you currently employed or unemployed and collecting unemployment compensation? If you are employed and your employer has 50 or more employees within a 75 mile radius and you have worked basically full time during the past year and have not used up all of your family leave time, you may be eligible to take time off to give birth and bond with your baby - up to 12 weeks. It is unpaid time, but you may be able to use any earned and unused vacation, PTO or sick time. In addition, if you suffer from pregnancy related complications, you may be able to take an ADDITIONAL 4 months from work - for a total of up to 7 months and your employer must return you to the same or similar position. I don't believe you can collect disability insurance and workers' compensation at the same time. I have successfully asserted the rights of many pregnant employees who were denied their rights. 949-481-6909.

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