The California Fair Employment & Housing Commission (FEHC) is currently considering proposed Regulations that would provide guidance on the interpretation of California’s pregnancy disability leave (PDL) law. The PDL law is codified at California Government Code sec. 12945, and employers with 5 or more employees in California are covered by this statute.

The PDL law allows employees who are disabled as a result of “pregnancy, childbirth or related medical conditions” to take up to a maximum of 4 months of unpaid disability leave, if certified by their health care provider. An employee who takes PDL must be returned to their former position after the completion of PDL and, realistically, the only defense to reinstatement is that the employee’s position no longer exists.

Currently, PDL may be taken in blocks of time or intermittently. Employers are required to reasonably accommodate employees who are disabled as a result of pregnancy. To be eligible for PDL, employees do not have to meet any minimum hours or length of service requirements. For example, an employee would eligible for PDL on her first day of work, provided she has a doctor’s certification for the pregnancy related disability.

The proposed Regulations may expand the definition of the term "affected by pregnancy" to encompass not just medical conditions related to a pregnancy, but to also include "physical and mental conditions related to pregnancy or childbirth." This new definition could include post-partum depression, or even just stress related to having a child, as well as, an employee who suffers mental anguish due to giving her baby up for adoption. Further, the proposed Regulations may allow women whose pregnancy is terminated due to stillbirth, miscarriage or abortion to take protected PDL.

In addition, the proposed Regulations would expand the definition of "health care provider" to include licensed midwives, clinical psychologists, and clinical social workers. The inclusion of clinical psychologists and social workers will allow women who are suffering from post-partum depression or issues involved with having an abortion or choosing to give their babies up for adoption to obtain medical certifications for PDL from these individuals.

Pregnant employees in California may also be entitled to 12 weeks of unpaid job-protected leave under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), if the employee meets the eligibility requirements for leave under those statutes. The FMLA runs concurrently with PDL, the CFRA does not run concurrently with PDL. The CFRA provides employees with 12 weeks of unpaid, job-protected leave to bond with a new child after the disability related to the pregnancy and childbirth is over. This means that an employee could conceivably be entitled to seven months of job-protected leave. Currently such situations are relatively rare; however, with the expansion of the reasons for which an employee may use PDL, this situation may become increasingly common.

Employers who are covered by the PDL law should track the progress of these proposed regulations. At a minimum, employers covered by the PDL and/or the FMLA and CFRA must establish policies and procedures that set forth what the employee’s obligations are regarding notice of the need for a leave and the requirements for providing a medical certification to cover the period of disability. Further, employers must understand their obligations regarding the reinstatement rights of individuals returning from these leaves or face costly and distracting litigation from employees who believe that their rights under these statutes have been violated.