Amendments to California’s pregnancy anti-discrimination regulations will extend coverage to “perceived pregnancy,” defined as “being regarded or treated by an employer or other covered entity as being pregnant or having a related medical condition.” With no additional guidance as to who is included in this protected class (which may include those who are not pregnant, but, because of a perception that they are, suffer adverse employment actions), it remains to be seen how the Department of Fair Employment and Housing Fair Employment and Housing Commission or California courts will interpret this term.
In the context of pregnancy disability leaves, the amended regulations will expand the definition of “disabled by pregnancy” and clarify that the “four months” leave period is calculated in hours, rather than days. California eEmployers with at least five employees must provide four months of pregnancy disability leave (“PDL”), whether paid or unpaid, to California employees who are “disabled by pregnancy.”
In addition, the regulations clarify an employer’s responsibility regarding reasonable accommodation or transfer of California employees disabled by pregnancy and detail changes to the medical certification and documentation process. Finally, they make mandatory changes to the notices that provide employees information about their rights and responsibilities when seeking PDL (Notice A) and PDL and California Family Rights Act (“CFRA”) leave (Notice B).
The new regulations are effective beginning December 30, 2012.
“Disabled by Pregnancy” and “Four Months”
In addition to any leave permitted under the federal Family and Medical Leave Act (“FMLA”) or the CFRA, California covered employers with at least five employees must provide four months of PDL to California employees who are disabled by pregnancy. (Time taken for PDL can run concurrently with FMLA leave, but not CFRA leave. There are no eligibility requirements for PDL or to request a reasonable accommodation or transfer.)
The new regulations provide an illustrative list of covered conditions for which an employee “disabled by pregnancy” may be entitled to time off. These conditions include, among others, severe morning sickness, prenatal or postnatal care, pregnancy-induced hypertension, preeclampsia, post-partum depression, childbirth, loss or end of pregnancy, and recovery from childbirth or loss or end of pregnancy.
Under the amendments, employees will be eligible for up to four months of PDL per pregnancy, not per year. The regulations provide examples of how to calculate the four-month period for employees who work full-time, part-time, or a variable schedule. For a full-time employee working 40 hours a week, the regulations explain that four months of PDL is equal to 693 hours.
Reasonable Accommodation or Transfer
The regulations detail the process employers must follow in accommodating leave and transfer requests of employees affected by pregnancy. It is unlawful for an employer to deny a request if it is based on the advice of the employee’s health care provider and is reasonable. Whether a requested accommodation is reasonable must be determined on a case-by-case basis. The employer must engage in a good faith interactive process with the employee to identify and implement a reasonable accommodation.
Significantly, 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. However, 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 an employer permits temporarily disabled workers to transfer to alternate positions, they also must reasonably accommodate the transfer requests of employees disabled by pregnancy.
Employees must be reinstated to the same or comparable position when there is no longer a medical need for the transfer, intermittent leave, or reduced work schedule.
Notice & Medical Certification
The regulations state that employees must provide timely oral or written notice of the need for a reasonable accommodation, transfer or PDL. Where the need is foreseeable, employees must provide at least 30 days’ advance notice. Where the need is not foreseeable, employees must provide notice as soon as practicable. Employers must respond to an employee’s request no later than 10 days after having received it.
An employer may require an employee to provide a medical certification of the need for leave. The regulations state that a medical certification requesting a reasonable accommodation or transfer will be “sufficient” if it contains the following information:
- A description of the requested reasonable accommodation or transfer;
- A statement describing the medical advisability of the reasonable accommodation or transfer because of pregnancy; and
- The date on which the need for reasonable accommodation or transfer became or will become medically advisable and the estimated duration of the reasonable accommodation or transfer.
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Before December 30th, California employers should review their policies and practices concerning pregnancy leave and revise them as necessary. Non-discrimination policies should include “perceived pregnancy” as a protected class. Finally, employers should post the revised Notices (and provide an employee who informs the employer that she is pregnant with a copy of the appropriate Notice), as applicable, and update their medical certification forms.