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Disability versus unemployment during maternity leave

Montebello, CA |

Hello,

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?

Thanks

Attorney Answers 2

Posted

(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_-_Eligibility.htm#Whataretheeligibilityrequirements

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:
http://eeoc.gov/laws/types/pregnancy.cfm

For information on the Pregnancy Discrimination Act, see:
http://eeoc.gov/laws/statutes/pregnancy.cfm

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&permalink=family-and-medical-leave-fmla-summary-of-key-provisions.

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 claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

(continued from Answer above) California has its own family and medical leave law, the California Family Rights Act, Government Code section 12945.2 (CFRA). It is substantially similar to the FMLA, but an employee's incapacity due to pregnancy, childbirth or related medical condition is not included in the definition of “serious health condition.” This is usually beneficial to the employee because CFRA leave and pregnancy disability leave are two separate and distinct rights under California law. They do NOT run concurrently, as they do under the FMLA. Instead, an employee in California may take four months of PDLL plus 12 weeks of family leave, provided of course that the employee meets the other conditions of these laws. Please look at my guide to unlawful discrimination: http://www.avvo.com/pages/show?category_id=6&permalink=what-is-unlawful-employment-discrimination--california-law which should help you understand lawful and unlawful discrimination, how to enforce your rights, and time limits. Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.

Posted

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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