Pregnancy
The Federal Unemployment Tax Act (FUTA), 26 USC 3304 (a) (12), provides that "no person shall be denied compensation . . . solely on the basis of pregnancy or termination of pregnancy."
There is no provision in the Calif. Unemp. Ins. Code pertaining to the availability of claimants who are pregnant. Consequently, availability under such circumstances must be determined in the same manner as all other availability issues. The claimant must be ready, willing, and able to accept suitable employment. If restrictions are placed on acceptable employment, the claimant must show good cause for the restrictions, and a substantial field of employment must remain open to the claimant.
If, due to pregnancy, the claimant voluntarily leaves work, refuses work, is reluctant to seek work, or places unreasonable restrictions on acceptable work, an availability issue exists under Section 1253(c). However, if the claimant demonstrates a willingness to work without any restrictions, she is presumed available.
This concept was further enforced as a result of the Cathy Gunn case wherein the court found that because the claimant's unemployment was not due directly to her pregnancy, she had placed no additional restrictions on her availability, and she was willing to seek employment in her usual occupation for which there was a substantial remaining labor market, she should be considered able to work.
Employers Unwilling to Hire Pregnant Woman
The fact that employers may not be willing to hire pregnant women, of itself, is no bar to holding a pregnant woman available for work. For example, in P-B-197, the claimant, a general office clerk, was in her seventh month of pregnancy. Because employers in the area were generally unwilling to hire applicants who were noticeably pregnant, the field office policy was to withhold referrals in such cases. However, a labor market existed for clerk-typists in the area and the claimant was willing to accept this work. The Board held that the referral policy of the field office did not render the claimant unavailable since a labor market existed and she placed no restrictions on suitable work.
Since employers in certain industries may be reluctant to hire pregnant women, consideration should be given to the claimant's occupational skills and employer attitudes when assigning such a claimant's seek work plan.
Post-Pregnancy Eligibility
While some women can and do return to work soon after the birth of their child, usually the claimant will refrain from accepting immediate employment either through preference or by orders of her doctor.
P-B-69 discussed the case of a claimant whose doctor would not release her to return to immediate work. The claimant was in continued claim status at the time she entered the hospital on April 10 to give birth. Her baby was born two hours later. When the claimant was released from the hospital on April 12, she felt able to return to work. The claimant certified for benefits for the weeks ending April 12 through May 3 without reporting her hospitalization or the birth of her baby. At the appeal hearing the claimant presented a doctor's statement dated August 12, which said the claimant could have returned to work May 26. In determining that the claimant was not able to work during the period in question, the Appeals Board stated:
". . . [T]he claimant has conceded that she was not able to work or at least available for work each regular working day in her usual occupation as an executive secretary during the week beginning April 6, when she was hospitalized for the birth of her child. The claimant contends, however, that she was able to work immediately thereafter and . . . certainly took some action consistent with this contention; she reported in person to the Department and sought work. Nevertheless, an immediate return to work would have been contrary to her doctor's recommendation at the time the claimant left the hospital on April 12. The claimant's inability to work was in effect subsequently confirmed by her doctor in his statement of August 26, that the claimant could have returned to work May 26 . . . evidence supports a finding that the claimant, despite her aspirations, was not able to work . . . the week beginning April 6, through the week ending May 3."
Any presumption that a claimant is not able to work immediately following childbirth, is rebuttable by medical verification that the claimant is able to return to work.