California's Department of Fair Employment and Housing has amended the Pregnancy Disability Leave (PDL) regulations to significantly expand the leave rights of eligible employees. The new regulations significantly broaden the definition of "disabled by pregnancy," make "perceived pregnancy" a basis for discrimination, redefine length of leave, expand the accommodation and reinstatement rights, and establish new notice requirements.
Broader Definition of Disabled by Pregnancy
Employees may now take pregnancy disability leave for previously unrecognized conditions "related to pregnancy," such as postnatal care; lactation-related conditions; gestational diabetes; hypertension; postpartum depression; childbirth; loss or end of pregnancy; and recovery from childbirth.
Liability for "Perceived Pregnancy" Discrimination
The new regulations prohibit discrimination based on the employer's perception that an employee is pregnant. "Perceived pregnancy" is defined as "being regarded or treated by an employer or other covered entity as being pregnant or having a related medical condition." The employer may require medical certification at its discretion in the event accommodations are requested, but should take care in that a request for documentation could in itself be considered discriminatory.
Length of Leave Redefined
The PDL law allows employees with pregnancy-related or childbirth-related disabilities up to four months of leave. The previous regulations defined four months as 88 paid, eight-hour days for full-time employees. The new regulations interpret four months as one-third of a year, or 17 1/3 weeks of leave, which is calculated in hours, rather than days. For example, an employee who works 40 hours a week would now be entitled to 693 hours of leave (40 X 17.33), as opposed to 88 days under the old definition. Employees also are eligible for up to four months of pregnancy disability leave per pregnancy, not per year.
In addition, the right to take pregnancy disability leave is separate from the right to take a leave of absence under the California Family Rights Act (CFRA). After 17 1/3 weeks of pregnancy disability leave under the PDL, employees may take an additional 12 weeks of CFRA leave to bond with the baby.
Accommodation and Reinstatement Rights
To the extent reasonable, employers have a duty to accommodate employees suffering from disabilities "related to pregnancy," including but not limited to accommodating requests to transfer to other positions, if the request is based on a recommendation of the employee's health care provider and will not cause undue hardship. On the other hand, it is unlawful for employers to involuntarily transfer an employee who is pregnant or perceived to be pregnant without a legitimate business reason unrelated to pregnancy. In addition, employers may not require a pregnant employee to take a leave of absence when the employee has not requested leave.
Once the employee is ready to return to work, the employer must reinstate her to the same or a comparable position. If no comparable position is available, the employer must provide notice within 60 days of available positions for which the employee would qualify. Employers may no longer use hardship to business operations as a defense to a failure-to-reinstate claim. However, inability to hold a position open for legitimate business reasons unrelated to the employee's pregnancy disability leave (e.g., layoffs) is a viable defense.
New Notice Requirements
The new regulations include new certification forms and notices, which contain important changes to the information employers must provide to employees about their rights and responsibilities under the PDL and CFRA.
Not only do California's PDL regulations establish new compliance requirements for employers, they also create potential new claims against employers while limiting the defenses available to them. California employers should prepare to face these challenges by updating their notices, policies and procedures and by providing training to key personnel about the new regulations.