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California Strengthens Pregnancy Disability Leave

Posted by attorney Stephen Sommers

As of December 30, 2012 new regulations became effective that affect California’s Pregnancy Disability Leave. The Department of Fair Employment and Housing (“DFEH") implemented new regulations interpreting the Pregnancy Disability Leave (“PDL") Law, California Government Code § 12945 (the “Pregnancy Disability Regulations") and new regulations interpreting reasonable accommodation under the Fair Employment and Housing Act (“FEHA"), Gov. Code § 12900 et seq (the “Disability Discrimination Regulations"). The new regulations under California state law include the following:

  • With the advice of her physician, an employee as an accommodation can request transfer to a less strenuous or hazardous position for the duration of her pregnancy.
  • It is unlawful to discriminate against or harass an applicant or employee based on perceived pregnancy.
  • Under the new regulations, if no comparable position is available upon her return, an employer has an affirmative duty to provide notice of available positions to the employee that she would be qualified for within 60 calendar days.
  • If an employer has a more generous leave policy for similarly situated employees with other temporary disabilities than is required for pregnancy purposes under these regulations, the employer must provide the more generous leave to employees temporarily disabled by pregnancy.
  • If the employer’s more generous leave policy exceeds four months, the employer’s return policy after taking the leave would govern, not the return rights specified in these regulations.
  • An employer cannot require an employee to take a leave of absence because of a pregnancy or perceived pregnancy when the employee has not requested leave.
  • An employer cannot transfer an employee to another position affected by a pregnancy over the employee’s objection unless the transfer is for legitimate operational needs unrelated to the pregnancy.
  • The right to take pregnancy disability leave is separate and distinct from the right to take leave of absence as a reasonable accommodation under Government Code section 12940.

Among the significant new regulations are:

  1. A Change to the Definition of Four Months.

The new regulation defines four months as the number of days or hours an employee would work within four calendar months. Previously, the regulation defined four months as 88 paid, eight-hour days for full time employees. This revision is critical for employees who decide to take intermittent leaves because their right to the leave no longer expires after four months. The employee can take the applicable number of leave days or hours calculated for a four month leave period per pregnancy not per year.

A section of the new regulation reads as follows:

“All employers must provide a leave of up to four months, as needed, for the period(s) of time an employee is actually disabled because of pregnancy even if an employer has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees.

(1) A “four month leave" means time off for the number of days or hours the employee would normally work within four calendar months (one-third of a year or 17 1/3 weeks). For a full time employee who works 40 hours per week, “four months" 693 hours of leave entitlement, based on 40 hours per week times 17 1/3 weeks.

(2) For employees who work more or less than 40 hours a per week, or who work on variable work schedules, the number of working days that constitutes “four months" is calculated on a pro rata or proportional basis.

(A) For example, for an employee who works 20 hours per week, “four months" means 346.5 hours of leave entitlement. For an employee who normally works 48 hours per week, “four months" means 832 hours of leave entitlement" (C.C.R § 7291.9).

  1. The New Law Expands When a Woman Is Legally Defined as Disabled by Pregnancy.

A woman used to only be “disabled by pregnancy," if in the opinion of her health care provider she was unable to perform any one or more of the essential functions of her job or to perform any functions without undue risk to herself and her pregnancy. The new definition has been significantly expanded to include time off for situations such as gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, childbirth, loss or end of pregnancy and recovery from childbirth, loss or end of pregnancy.

A section of the new regulation reads as follows:

“A woman is disabled by pregnancy if, in the opinion of her health care provider, she is unable because of pregnancy to perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons. An employee also may be considered to be “disabled by pregnancy" if, in the opinion of her health care provider, she is suffering from severe “morning sickness" or needs to take time off for: prenatal or postnatal care; bed rest; Adopted Proposed Pregnancy Regulations – As adopted by the FEHC on 10.02.12 Page 2 gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; childbirth; loss or end of pregnancy; or recovery from childbirth, loss or end of pregnancy. The preceding list of conditions is intended to be non-exclusive and illustrative only" (C.C.R § 7291.2(f)).

  1. The New Law Mandates Continued Group Health Coverage during Leave.

An employer is now required to maintain and pay for the employee’s health insurance during the pregnancy disability leave, but it is not to exceed four months over a twelve month period. The employer is also entitled to recover from the employee the premium paid while on leave under certain circumstances.

A section of the new regulation reads as follows:

“An employer shall maintain and pay for coverage for an eligible female employee who takes pregnancy disability leave for the duration of the leave, not to exceed four months over the course of a 12-month period, beginning on the date the pregnancy disability leave begins, 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" (C.C.R § 7291.11(c1).

The above summary only refers to some of the many significant changes from the new regulations. For a more detailed review and help on how these new regulations might effect you, please contact the attorneys at Sommers Employment Law Group.

  1. The Pregnancy Disability Regulations are located at C.C.R. § 7291.2 et seq.

  2. The Disability Discrimination Regulations are located at C.C.R. § 7293.5 et seq.

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