by Sayema Hameed
California’s new Pregnancy Disability Leave regulations took effect on December 30, 2012. The new regulations, which can be found in Title 2 of the California Code of Regulations, Sections 7291.2 through 7291.18, were adopted to provide clarity and guidance to employers and employees regarding their respective rights and responsibilities concerning pregnancy, childbirth and related medical conditions under California’s Fair Employment and Housing Act, California Government Code Sections 12940-12951 (“FEHA”).
FEHA’s Pregnancy Disability Leave Law
FEHA, which applies to employers with five (5) or more full or part-time employees, contains specific provisions concerning pregnancy and pregnancy leave. Under FEHA, it is unlawful for an employer to harass or discriminate against an employee because of pregnancy. In addition, under FEHA, an employer is required to provide up to four (4) months of job-protected disability leave to a female employee “disabled by pregnancy, childbirth, or a related medical condition.” An employer may require an employee who plans to take pregnancy disability leave to give the employer “reasonable notice” of the date that the leave will commence and the estimated duration of the leave. If an employer provides health benefits under any group health plan, the employer is obligated to maintain and continue to pay for the employee’s health insurance coverage for up to four (4) months while the employee is out on pregnancy disability leave. Employers are also required to provide reasonable accommodation (including, if reasonable, temporary transfer to a less strenuous or hazardous position) to a pregnant employee upon request, with the advice of her health care provider, related to her pregnancy, childbirth, or related medical condition. Gov’t Code § 12945.
California’s New Pregnancy Disability Leave (“PDL”) Regulations
The new PDL regulations have added and modified definitions of numerous terms used in FEHA and in the regulations. For example, the newly modified definition of the phrase “disabled by pregnancy” includes specific examples of what it means to be disabled by pregnancy:
As another example, the new regulations now define “four months” as follows:[blockquote]“Four months” means the number of days the employee would normally work within four calendar months (one-third of a year equaling 17⅓ weeks), if the leave is taken continuously, following the date the pregnancy disability leave commences. If an employee’s schedule varies from month to month, a monthly average of the hours worked over the four months prior to the beginning of the leave shall be used for calculating the employee’s normal work month. 2 CCR § 7291.2(l).[/blockquote]
In addition to defining many useful terms, the new regulations also provide explicit guidance and clarification on various aspects of the pregnancy disability leave law, including as follows:
It is unlawful for an employer to harass an employee because of pregnancy or because of perceived pregnancy (which is defined as “being regarded or treated by an employer or other covered entity as being pregnant or having a related medical condition”). 2 CCR § 7291.3. This means that an employer can be held liable for acts of discrimination based on the perception that an employee is pregnant (even if she is not actually pregnant).
There is no eligibility requirement (such as minimum hours worked or length of service requirement) before an employee affected or disabled by pregnancy becomes eligible for reasonable accommodation, transfer or disability leave. 2 CCR § 7291.4. This means that an employer cannot impose a minimum length of service or hours requirement on an employee before she becomes entitled to her PDL rights under FEHA. This is in contrast to the California Family Rights Act (CFRA), which does impose both a length of service (12 months) and hours worked (1,250 hours of service during the previous 12-month period) requirement before an employee can request CFRA leave.
It is unlawful for any employer to refuse to hire, employ, promote, or select for training an applicant or employee because of pregnancy or perceived pregnancy. 2 CCR § 7291.6.
It is unlawful for an employer to transfer an employee affected by pregnancy over her objections to another position, except if the employee’s health care provider provides medical certification that the employee has a medical need for intermittent leave or reduced work schedule because of pregnancy. Then the employer may require the employee to transfer temporarily to an available alternative position that meets the needs of the employee. The alternative position must have the equivalent rate of pay and benefits and must better accommodate the employee’s leave requirements than her regular job, but it does not have to have equivalent duties. 2 CCR § 7291.6(a)(1)(G) and 2 CCR § 7291.8(c).
It is unlawful for an employer to require an employee to take a leave of absence because of pregnancy or perceived pregnancy if the employee has not requested leave. 2 CCR § 7291.6.
It is unlawful for an employer to deny a request for reasonable accommodation made by an employee affected by pregnancy if the employee’s request is based on the advice of her health care provider and the requested accommodation is reasonable, which is determined on a case-by-case basis. The employer and employee must engage in a good faith interactive process to identify and implement a reasonable accommodation. An employer’s grant of reasonable accommodation does not affect the employee’s independent right to take pregnancy disability leave. 2 CCR § 7291.7 and 2 CCR § 7291.17(a).
It is unlawful for an employer to deny the request of an employee affected by pregnancy for a temporary transfer to a less strenuous or hazardous position if the request is based on the advice of her health care provider and the transfer can be reasonably accommodated by the employer. The employer is not required to create a brand new position for the employee or discharge another employee. The employer must reinstate the employee to her same or comparable position when the employee’s health care provider certifies that there is no longer a medical need for the transfer. 2 CCR § 7291.8.
Employers must provide leave of up to four months, as needed, for the time an employee is “actually disabled because of pregnancy.” A “four month leave” means time off for the number of days or hours the employee would normally work within four calendar months (17 1/3 weeks). For example, an employee who works 40 hours per week would be entitled to up to 693 hours of leave (40 hours per week multiplied by 17 1/3 weeks). An employee who normally works 20 hours per week would be entitled to up to 346.5 hours of leave. An employee who normally works 48 hours per week would get up to 832 hours of leave. The leave does not have to be taken all at once but may taken intermittently or through a reduced work schedule as determined by the employee’s health care provider. Employees are eligible for up to four months of leave per pregnancy, not per year. 2 CCR § 7291.9.
An employee who takes pregnancy disability leave is guaranteed the right to return to her same position. An employer can reinstate an employee who takes leave to a comparable position only if her same position no longer exists, such as in a layoff due to plant closure. In that case, the employer must offer a position that is comparable in terms of pay, benefits, location and working conditions, unless the employer can prove that no comparable position exists. If an employee takes CFRA leave at the end of her pregnancy disability leave, the employee’s right to reinstatement is governed by CFRA, which provides for reinstatement to the same or comparable position.An employer cannot refuse to return a woman who has taken a pregnancy leave to her original position because the employer likes her temporary replacement better or because of performance deficiencies discovered while she was on leave. 2 CCR § 7291.10.
An employer is not required to pay an employee during pregnancy disability leave unless the employer pays other employees for other temporary disability leaves. An employee may be entitled to receive state disability insurance during pregnancy disability leave and may contact the California Employment Development Department for more information. An employer may require an employee to use, or an employee may elect to use, accrued paid sick days during an otherwise unpaid pregnancy disability leave. An employee may elect, at her option, to use accrued paid vacation days or paid time off (PTO). 2 CCR § 7291.11.
An employer shall maintain and pay for coverage under a group health plan for an eligible female employee who takes pregnancy disability leave at the same level that coverage would have been provided if the employee continued working for the duration of the leave. The employer’s obligation to maintain and pay for group health coverage during pregnancy disability leave is separate and distinct from the employer’s obligation to pay for 12 weeks of group health coverage during CFRA leave. 2 CCR § 7291.11.
During pregnancy disability leave, the employee shall retain employee status, and the employee shall accrue seniority and participate in employee benefit plans to the same extent as would apply to any other unpaid leave of absence. 2 CCR § 7291.11.
Pregnancy disability leave can run concurrently with FMLA leave, but pregnancy disability leave is separate and distinct from CFRA leave. This means that an employee can take up to 17 1/3 weeks of pregnancy disability leave and then take up to 12 weeks of CFRA leave for reason of the birth of her child. Neither the employee nor the child is required to have a serious health condition in order for the employee to take CFRA leave. Where an employee has used all of her pregnancy disability leave before the birth of the child and her health care provider determines that a continuation of leave is medically necessary, the employee may utilize her CFRA leave prior to the birth of the child. The maximum statutory leave entitlement provided by pregnancy disability leave and CFRA leave is 29 1/3 workweeks. 2 CCR § 7291.12 and 2 CCR § 7291.13.
Employers are required to give their employees “reasonable advance notice” of employee rights and responsibilities concerning pregnancy, childbirth or related medical conditions as set forth in Notice A (for employers with less than 50 employees who are, therefore, not subject to CFRA/FMLA) and Notice B (for employers with 50 or more employees who are subject to CFRA/FMLA). Employers shall post the appropriate notice in a conspicuous place or where employees congregate. Electronic posting and distribution of Notice A or B is also allowed. Employers must also give their employees a copy of the appropriate notice as soon as practicable after an employee notifies the employer of her pregnancy or asks about reasonable accommodation, transfer or pregnancy disability leave.Employers who publish employee handbooks are encouraged to include a description of reasonable accommodation, transfer and pregnancy disability leave in the next edition or distribute copies of these notices on an annual basis. 2 CCR § 7291.16 and 2 CCR § 7291.18.
An employer whose work force is comprised of ten percent (10%) or more of persons whose primary language is not English must translate the Notice into the language(s) spoken by this group of employees. An employer must make a reasonable effort to give either verbal or written notice in the appropriate language to any employee who is not proficient in English and who has not received notice of her rights regarding pregnancy disability leave, transfer and reasonable accommodation. 2 CCR § 7291.16.
An employee must provide timely oral or written notice of the need for reasonable accommodation, transfer or pregnancy disability leave. Where the need is foreseeable, the employee must provide at least thirty (30) days’ advance notice and shall make a reasonable effort to minimize disruption to the employer’s operations. When 30 days’ notice is not practicable, the employee must provide notice as soon as practicable. The employer must respond to an employee’s request no later than ten (10) calendar days after receiving the request. 2 CCR § 7291.17.
Employers may require their employees to provide written medical certification of the need for reasonable accommodation, transfer or leave. The employer must notify the employee of the medical certification requirement and deadline and must provide the employee with the medical certification form for the employee’s health care provider to complete. 2 CCR § 7291.17. Employers may use the Medical Certification Form provided in the regulations or create their own form. 2 CCR § 7291.17(e).
A medical certification form requesting reasonable accommodation or transfer is sufficient if it contains: (1) a description of the requested accommodation or transfer; (2) a statement describing the medical advisability of the accommodation or transfer; and (3) the date on which the need for accommodation or transfer became or will become medically advisable and the estimated duration of the accommodation or transfer. 2 CCR § 7291.17(b).
A medical certification form requesting leave is sufficient if it contains: (1) a statement that the employee needs to take pregnancy disability leave because of pregnancy, childbirth or related medical condition; (2) the date on which the employee became disabled and the estimated duration of the leave. 2 CCR § 7291.17(b).
As a condition of an employee’s return from pregnancy disability leave, an employer may require the employee to obtain a release to “return-to-work” from her health care provider, but only if the employer has a uniformly applied practice or policy of requiring such releases from other employees returning to work after a non-pregnancy related disability leave. 2 CCR § 7291.17(d).
You can view California’s new pregnancy disability leave regulations here: http://www.dfeh.ca.gov/res/docs/FEHC%20Pregnancy%20Regs/FINAL_APPROVED_PREG_REGS_CLEAN_11_30_12.pdf
Employers should revise their policies and practices as needed to comply with the new regulations, including posting and distributing the revised Notice A or Notice B and updating their Medical Certification Form.