Employee discloses pregnancy 5 days after being hired.

The employee is 6 months pregnant, and does not obviously show because she is
very overweight. She would be on leave during our upcoming busiest season of
the year. We we are a small company, 4 employees. I need to hire a different
person. What are my legal options?

Asked on May 3, 2017 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You cannot terminate her because she is pregnant: that is clearly illegal. (It is considered illegal sex-based discrimination against women, since only women get pregnant.) However, if you only have 4 employees, you are too small to be covered by any of the pregnancy leave laws (at 5 employees, you are covered by CA law, but not federal law--federal law does not kick in until 50 employees). That means that if she takes leave without you specifically granting her approval for it, it is an unauthorized absence and you may terminate her for that. So you could refuse to let her have any leave (she can can use any sick or vacation days she has earned, however), terminate her if she leaves, replace her, and not have to rehire her--as long as there are no more than 4 employees total.

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