Date: Mar 01, 2013
Magazine:
March 2013 - Produce Rule Explored

California’s Fair Employment and Housing Commission recently amended its regulations to the state’s Pregnancy Disability Leave Law.  The new regulations provide expanded protections and clarifications with regard to employer obligations related to Pregnancy Disability Leave (“PDL”).

California law provides that employers with five or more employees must provide up to four months of PDL to employees disabled by pregnancy.  PDL has no minimum hours worked or length of service requirements, so an employee can conceivably be eligible for PDL on the first day of employment.  An employee who is disabled because of pregnancy or a pregnancy-related condition may take PDL before or after the child’s birth and PDL leave does not run concurrently to any leave entitlement the employee may have under the California Family Rights Act (“CFRA”).

The new regulations which took effect on December 30, 2012 clarify and, in some instances, expand the PDL protections afforded to employees under in the following respects:

“Perceived Pregnancy" Added as New Basis for Discrimination

Under the new regulations, an employer will be held liable for any acts of discrimination based not only on pregnant employees, but upon actions based on the employer’s perception that an employee is pregnant, even if she is not.  Thus the amendment expands the protected class to include those who are not pregnant, but who suffer adverse employment actions based on the perception by employers that they are pregnant.  This concept is similar to the “perceived disability” regulations under the Americans with Disabilities Act, but is new relative to the pregnancy disability leave law.

Broadened Definition of “Disabled by Pregnancy”

The regulations broaden the definition of “disabled by pregnancy” to include time off for disabilities previously unrecognized, such as postnatal care, bed rest, gestational diabetes and hypertension.  Also included are post-partum depression, childbirth, loss, or end of pregnancy, and recovery from childbirth.

Calculation of Four Month Leave Period

The regulations have modified the definition of “four months” so that an eligible employee’s “four month” leave period is now calculated in hours rather than days.  “Four months” is defined as one-third of a year or 17 1/3 weeks.  A full-time employee who works 40 hours a week would be entitled to 693 hours of leave (40 X 17.33).  A part-time employee who works 20 hours per week would be entitled to 346.6 hours of leave.  Also, employees are now eligible for up to four months of PDL per pregnancy, not per year.

Expanded Accommodation and Reinstatement Rights

The new regulations expand an employer’s reasonable accommodation obligations to include modifying work schedules to provide earlier or later hours; providing stools; and/or providing additional break time for lactation or rest room needs.

An employee on pregnancy leave generally still has a right to reinstatement to the same position, or a comparable position, subject to employer defenses. However under the new regulations, other types of conduct is now unlawful as well.  For example, it is now unlawful for an employer to transfer a pregnant employee (or perceived to be pregnant) over her objection unless the employer can establish it did so for a legitimate business reason unrelated to pregnancy.  Also, the regulations provide an employer may not require a pregnant (or presumably pregnant) employee to take a leave of absence when the employee has not requested leave.  Lastly, it is unlawful to retaliate against an applicant or employee who has opposed unlawful employment practices under the Fair Employment and Housing Act.

Defenses to failure to reinstate have been limited by the regulations.  It is no longer a defense to an employee’s right to reinstatement for an employer to claim that each means of preserving the job or duties for the employee (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the employer’s ability to operate the business.

However, if the employer can show that the employee would not have held the position at that time for legitimate business reasons unrelated to the employee’s pregnancy disability leave, the employer may have a valid defense against a claim that it unlawfully failed to reinstate an employee to the same position she held before a leave or transfer.  An example would be a layoff pursuant to a packing house closure).  Moreover, it is a valid defense to a failure to reinstate claim if the employer can prove that it would not have offered a comparable position to the employee even if she had continuously worked during the pregnancy disability leave or transfer period.

New Forms, Notices and Language Requirements

The new regulations include new certification forms and amend Notices “A” and “B,” which include important changes to the information employers must give employees about their rights and responsibilities under pregnancy disability leave (Notice “A”) and the California Family Rights Act (Notice “B”).  Employers may now send or post these notices electronically or via email, and are no longer required to send hard-copy documents.

Finally, the regulations also contain a new requirement that employers give oral or written notice to non-proficient English speakers and written notice translated into any language spoken by 10% or more of the workforce at a particular workplace.

Consecutive CFRA and PDL Leaves

Under the new regulations, the maximum leave entitlement for employees who qualify for both pregnancy disability leave and CFRA leave for reasons of the birth of a child and/or the employee’s own serious health condition is 29 1/3 weeks (i.e. employee is disabled by pregnancy for 17 1/3 weeks plus 12 weeks of CFRA leave.)  The right to take pregnancy disability leave is separate and distinct from the right to take leave of absence as a reasonable accommodation under CFRA.

Furthermore, employers must maintain and pay for health coverage for an eligible female employee who takes PDL for the duration of the leave (not to exceed four months in a 12-month period) at the same level and under the same conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave.  This coverage period is separate from an employer’s obligation to pay for 12 weeks of group health coverage during CFRA or FMLA leave.

However, an employer may recover from the employee premiums paid while the employee was on PDL if the employee fails to return at the end of the leave and the employee’s failure to return is for a reason other than: (1) taking CFRA leave; (2) continuation or recurrence or onset of health condition that entitles employee to pregnancy disability leave; (3) non-pregnancy related medical conditions requiring further leave; and (4) any other circumstance beyond the control of the employee, including where the employer is responsible for the employee’s failure to return.

Conclusion

The amended regulations are already in effect.  Employers should take this opportunity to review their policies, practices, PDL forms and notices, and handbooks and update them to conform with the new regulations.  Employees with HR responsibilities should familiarize themselves with the new regulations and requirements for handling leave and accommodation requests.

WG Staff Contact

Jason Resnick
Vice President & General Counsel
949-885-2253

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