In the past year, we have heard versions of the same story more times than we can count. An employee is a few months pregnant. Her employer announces a company-wide return-to-office mandate. She reaches out to HR asking whether she can continue working remotely given her medical situation. Then, one of two things happens: either nothing, or something worse than nothing.
Sometimes HR goes quiet. Sometimes a manager tells her the policy applies to everyone and there are no exceptions. Sometimes she is handed a performance improvement plan two weeks after submitting her accommodation request. In each of these cases, the employee is left wondering whether what is happening to her is normal, whether she has any real options, and whether anyone is actually on her side.
The answer to that last question, under California law, is yes. The law is on your side. Here’s what you need to know.
California’s Legal Framework: More Protection Than Federal Law Alone
Pregnant employees in California are protected by several overlapping laws, each of which can independently require an employer to provide accommodations, leave, or both. An employer who thinks it has covered its bases under one statute may still be in violation of another.
The Fair Employment and Housing Act (FEHA) is California’s primary anti-discrimination law. It prohibits discrimination based on sex, which expressly includes pregnancy, childbirth, breastfeeding, and related medical conditions. It also requires employers with five or more employees to engage in a good-faith interactive process and to provide reasonable accommodations to employees with disabilities, including pregnancy-related disabilities.
Critically, a pregnancy-related condition does not need to be permanently or severely disabling to qualify. Conditions like severe nausea, pelvic girdle pain, preeclampsia risk, or anything that makes commuting physically difficult can all trigger accommodation obligations.
The Pregnancy Disability Leave law (PDL) provides up to four months of protected leave per pregnancy for employees who are disabled by pregnancy, childbirth, or a related medical condition. PDL applies to employers with five or more employees. It runs concurrently with FMLA leave but separately from CFRA leave. And it includes reinstatement rights: when an employee returns from PDL, her employer is generally required to restore her to the same position she held before she went on leave.
The California Family Rights Act (CFRA) provides up to 12 weeks of protected family and medical leave per year for qualifying employees at covered employers. CFRA leave can follow PDL, which means a pregnant employee may be entitled to approximately seven months of combined protected leave in connection with a single pregnancy. CFRA has its own reinstatement protections as well.
When Does a Return-to-Office Policy Trigger Accommodation Obligations?
Not every pregnant employee is automatically entitled to work remotely. The law requires a connection between the medical condition and the accommodation being requested. But that connection is not hard to establish, and the threshold for triggering an employer’s obligations is lower than most HR departments will tell you.
Are You Disabled by Pregnancy?
California sets a deliberately low bar for what counts as a disability. If your pregnancy is making it hard to commute, to sit at a desk for eight hours, to manage unpredictable symptoms in a shared office environment, or to get through a workday without rest, you likely qualify. Conditions that regularly meet this standard include:
- Severe morning sickness or hyperemesis gravidarum
- Gestational hypertension or preeclampsia
- Pelvic or back pain that makes commuting difficult
- High-risk pregnancies requiring reduced physical activity
- Immune suppression that makes crowded environments risky
- Prenatal mental health conditions exacerbated by workplace stress
The disability just needs to limit a major life activity.
Is Remote Work a Reasonable Accommodation for Your Condition?
There are a few things that work in your favor here.
First, if you’re disabled by pregnancy and your job duties can be performed remotely, remote work is increasingly a recognized form of reasonable accommodation under state and federal law. For example, in Larkin v. Total Quality Logistics, LLC, a jury awarded the plaintiff $22.5 million after finding that her employer wrongfully denied her the right to work remotely as an accommodation for her high-risk pregnancy, leading to the death of her infant.
Second, in California, many, many companies have successfully operated entirely remotely since the COVID-19 pandemic. When a San Francisco technology company that functioned perfectly well as a distributed team for six years now argues that an employee’s role “cannot be done remotely,” that argument is considerably harder to sustain than it would have been before 2020. If your employer let you work remotely for an extended period without any degradation in your performance or output, the burden is on them to explain why that is suddenly impossible.
Would the Accommodation Cause Undue Hardship?
An employer can lawfully decline an accommodation request only if granting it would cause undue hardship. Under California law, that’s a high bar. It requires a genuine assessment of the employer’s size, financial resources, operational structure, and the actual impact on the business. For large technology companies in San Francisco with the infrastructure to support remote and hybrid teams, arguing undue hardship on a request to let one pregnant employee work from home is a difficult position to maintain.
The Interactive Process: A Legal Obligation, Not a Formality
When a pregnant employee requests a remote work accommodation, her employer has a legal duty to engage in what the EEOC calls the “interactive process.” This is a mandatory, good-faith dialogue between the employer and employee aimed at identifying an effective accommodation.
In other words, your employer can’t just point to an RTO policy and call it a day. They need to:
- Acknowledge your request
- Have a genuine conversation about your limitations and needs
- Explore whether remote work, a hybrid schedule, a modified schedule, or some other adjustment would address the problem
- Consider any medical documentation provided
- Respond within a reasonable time
The part that surprises many employees is this: an employer who skips this process, or who performs it as a bureaucratic exercise without any real intention of finding a solution, violates FEHA regardless of whether the underlying accommodation request would have been granted. The failure to engage is itself an independent legal violation. It does not matter how legitimate the RTO policy is. It does not matter whether the employer genuinely believes remote work is impractical. If the interactive process was not conducted in good faith, the employer has broken the law.
This is also where we see some of the most egregious employer conduct. An employee submits an accommodation request. HR sends a form letter acknowledging receipt. Weeks pass. The RTO deadline arrives. Nothing has been resolved, and the employee is told she needs to report to the office or be considered absent without authorization. This is not a gray area. It is an unlawful failure to engage.
Is It Illegal to Revoke Remote Work During Pregnancy?
This is one of the questions we hear most often from pregnant employees in the Bay Area tech sector, and the answer deserves a direct response.
An employer who revokes or denies remote work specifically because an employee is pregnant, or to avoid having to accommodate her, is committing pregnancy discrimination under FEHA. That’s illegal. No question.
The more common situation, though, is the employer who insists it is not doing anything of the sort: it’s just applying a neutral, company-wide RTO policy to everyone equally.
This is where employers tend to get overconfident. A supposedly neutral policy does not protect an employer from liability if it refuses to accommodate an employee whose disability requires a modification to that policy.
Companies can also retaliate against workers that request pregnancy accommodations, either by revoking remote work privileges or otherwise penalizing the employee. We often see this happen because a manager who is annoyed by the accommodation request begins documenting performance issues that were never previously mentioned.
A Note on San Francisco and the Tech Industry
There is something worth naming directly about the specific context of San Francisco tech companies, because it comes up in our practice constantly.
These are companies that built their identities around disruption, employee empowerment, and progressive workplace culture. Many of them have explicit commitments to supporting working parents, to gender equity, to psychological safety. Some have entire internal programs dedicated to supporting pregnant employees and new mothers. And then a pregnant employee submits an accommodation request in response to an RTO mandate and suddenly the company that prides itself on its values cannot seem to find a pathway to letting her work from home three days a week.
The gap between the stated culture and the actual experience is often not the result of malicious intent at the top. It is the result of mid-level managers implementing RTO policies without any guidance on how accommodation obligations interact with those policies, HR teams that are more focused on consistent enforcement than on individual compliance, and legal departments that approve the policy without thinking carefully about what happens when it meets a protected class. The outcome for the employee is the same regardless of where the failure originated.
These companies also negotiated remote and hybrid arrangements with employees as part of their compensation packages, often in writing. When they now issue RTO mandates that conflict with those agreements, they are not just running afoul of FEHA. In some cases they are also facing contract law arguments that are entirely independent of the discrimination analysis.
If a tech company tells a pregnant employee that her role requires in-person presence and cannot be accommodated remotely, while simultaneously employing people in identical roles from Austin, Seattle, or London, that inconsistency is going to be a problem in litigation. We make sure those arguments are made.
What to Do If This Is Happening to You
If you are pregnant, facing a return-to-office mandate, and your employer is not engaging seriously with your accommodation needs, the most important thing you can do right now is start building a record.
Get your medical condition documented by your treating provider. Ask your obstetrician, midwife, or specialist to put in writing what your condition is, what limitations it creates, and why commuting or in-office work is medically problematic. The more specific this documentation is, the better.
Submit a written accommodation request to HR. State clearly that you are requesting remote or hybrid work as a reasonable accommodation for a pregnancy-related medical condition. Keep a copy. Note the date you sent it. This is the act that triggers your employer’s legal obligations, and having it in writing removes any dispute about whether it was made.
Participate in the interactive process, but pay attention to how the employer engages. Respond to questions, provide documentation, propose alternatives. Your good-faith participation protects your legal position if the matter escalates. But also take notes on every conversation. If a manager says something dismissive or if HR stops responding, document it with dates and specifics.
Do not assume you have unlimited time to act. FEHA claims generally must be filed with the Civil Rights Department within three years of the unlawful act, but other claims have shorter windows, and waiting makes cases harder to build. The sooner you consult an attorney, the more options you are likely to have.
Talk to the Professionals About Remote Work Pregnancy Discrimination
Return-to-office mandates are a legitimate exercise of employer authority. We are not arguing otherwise. But they are not a mechanism for avoiding the obligation to accommodate pregnant employees, and they are not a defense against discrimination claims when they are applied in ways that violate California law.
You do not have to choose between your health and your job. At Le Clerc & Le Clerc, LLP, we represent pregnant employees and new mothers in San Francisco and throughout California whose employers have failed them. We have had these conversations with hundreds of clients. We know how these cases are built, and we know how to fight them.
If any part of this article sounds like your situation, contact us today for your free, confidential consultation.
Your pregnancy is a protected condition. Your employer knows that, or it should. Let us make sure it matters.