Last week, Governor Brown signed two bills (AB 592 and SB 299) that further protect an employee's rights during pregnancy disability or family medical leave. Both bills, which take effect on January 1, 2012, require employers with five or more employees to continue paying their share of an employee's health care benefits for up to four months in any 12-month period while the employee is out on Pregnancy Disability Leave ("PDL"). California's PDL law makes it unlawful for employers with five or more employees to refuse to grant a leave of absence of up to four months to a female employee affected by pregnancy, childbirth or related conditions. Additionally, AB 592 expressly clarifies that employers are liable under California law for interfering or attempting to interfere with an employee's right to take family or pregnancy leave. Labor and employment attorney, Amy Messigian, discusses these new bills and how they affect your employees.
The California Family Rights Act ("CFRA") makes it unlawful for employers with 50 or more employees to refuse to grant an eligible employee's request for up to 12 workweeks of unpaid leave in a 12-month period to bond with the employee's newborn or newly adopted or fostered child, care for a covered person with a serious health condition or attend to their own serious health condition. Because pregnancy is not a covered condition under CFRA, any PDL leave is in addition to leave taken under CFRA.
AB 592 brings California law in line with federal law by expressly extending liability to employers that "interfere with, restrain, or deny the exercise of, or the attempt to exercise" any rights under the CFRA and PDL leave laws. Acts of interference may include "writing up" an employee for taking leave or otherwise punishing the employee for taking leave.
Both bills also amend Government Code section 12945(a) to create employer liability for refusing to maintain and pay for coverage under a group health plan for an employee who takes PDL leave. Under this new provision, health coverage must be maintained and paid by the employer for the duration of the leave, not to exceed four months over the course of a 12-month period, commencing the date the leave begins. The coverage must remain "at the level and under the conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave."
Previously, California law did not require employers to continue an employee's health benefits while on PDL. Employers with 50 or more employees were obligated to maintain health benefits during any overlapping period of leave under the federal Family and Medical Leave Act ("FMLA"), typically the first 12 weeks of leave. Now, any employer with five or more employees will be required to continue paying their portion of an employee's health benefits for the entire duration of the PDL leave, up to four months.
Employers will be entitled to seek reimbursement for health insurance premiums paid during PDL leave if the employee fails to return to work at the conclusion of a PDL leave of absence, unless further absence is authorized under CFRA (e.g., for baby bonding) or the employee is unable to return to work due to the continuation or onset of a health condition or other circumstance beyond her control.
Employers with five or more employees should review their current leave of absence policies and make any modifications necessary to comply with these new laws.