The California Department of Fair Employment and Housing has revised the regulations that apply to pregnancy discrimination. The revised regulations became effective on December 30, 2012. Key provisions include the following:
- The definition of “disabled by pregnancy” has been expanded. It now includes severe morning sickness, time off for pre-or postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, childbirth, loss or end of pregnancy, and recovery from childbirth or loss or end of pregnancy. “Four months leave” under the California Pregnancy Disability Leave law (PDL) means time off for the number of days or hours the employee normally would work within 17 1/3 weeks (1/3 of one year). A full-time employee who works 40 hours a week would be entitled to 693 hours of PDL leave (40 hours x 17.3 weeks).
- Employers must give employees advance notice of their pregnancy discrimination and leave rights. The DFEH has provided template notices for employees both covered under PDL only and PDL and the California Family Rights Act:
- Employers must distribute the notice by posting it in a conspicuous space (electronic posting is acceptable); giving it to an employee who notifies the employer of her pregnancy; and publishing it in the employee handbook or distributing it annually (electronic distribution is acceptable). The employer must provide a translated version if 10 percent or more of its workforce speaks a primary language other than English.
- Employees must provide oral or written notice of the need for pregnancy-related accommodation, transfer, or leave. When the need is foreseeable, they must provide at least 30 days notice. When not foreseeable, they must provide notice as soon as practicable. Employers must respond within 10 days. An employer can require an employee to provide medical certification of the need for leave, accommodation, or transfer. The certification must indicate the description of the need, a statement regarding the medical advisability of the request, and the date and estimated duration of the request. The employer may develop its own form or use the one provided in the regulations. The employer must give the employee at least 15 days to return the form.
- Employees may take pregnancy leave intermittently, and an employer may account for the leave using the shortest period of time it uses to record other leaves, or one hour, whichever is less. Employers must provide group health insurance coverage for the entire period of PDL leave under the same conditions as if the employee had not taken leave.
- Employers must reasonably accommodate pregnant employees if the accommodation request is based on the advice of the employee’s health care provider and is reasonable. Employers must engage in a good faith interactive process with the employee to determine whether any reasonable accommodation exists.
- An employee is entitled to a transfer to a less strenuous or hazardous position if the employee’s health care practitioner states that it is medically advisable and the employee is qualified for the position. An employer can deny the transfer only if it cannot reasonably accommodate the request. Employers are not required to create a job, fire another employee, or transfer an employee with more seniority. An employer must create a light duty job for pregnant employees if it does so for occupationally-injured employees.
- If the requested accommodation is a change in job duties or a job restructuring, the employee’s right to take up to four months of PDL is not affected. If the requested accommodation is a reduced work schedule or intermittent leave, the employer may consider this a form of PDL and deduct those hours from the four month leave entitlement.
- If the employee’s health care provider indicates that the employee has a need for intermittent leave or leave on a reduced work schedule, the employer may require the employee to transfer temporarily to an equivalent position in terms of pay and benefits (but not duties). When the transfer need ends, the employer must reinstate the employee to the same or a comparable position.
- Employers must also provide reasonable accommodations other than transfers and leave, which can include modifying practices, policies, duties, breaks, schedules, and furniture (e.g., providing stools or chairs).
- Upon the conclusion of PDL leave, the employer must reinstate the employee to the same position, unless the employee would not have been employed for legitimate business reasons, such as a layoff or plant closure. The employee would then be entitled to a comparable position unless the employer would not otherwise have offered the employee a comparable position had she not taken leave, or if no comparable position exists on either the date of reinstatement or within 60 days of that date. Employers must provide notice to the pregnant employee of comparable positions.
- Employees may be entitled to leave in addition to PDL leave, as a reasonable accommodation, to be determined on a case-by-case basis and applying the standards provided under disability law.
In the wake of the revised regulations, employers should (1) become familiar with all aspects of the new regulations, and train managers accordingly; (2) post the requirements and update employee handbooks to reflect all changes; and (3) designate an individual to handle and respond to pregnancy leave-related requests. Because these regulations are complex, employers should consult legal counsel when dealing with specific situations.
This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.