BakerHostetler's Employment and Labor Group would like to bring to your attention the following recent changes to the California Pregnancy Disability Leave (PDL) Regulations affecting employer obligations and liabilities:
"Perceived Pregnancy" Added as New Basis for Discrimination
Effective December 30, 2012, an employer will be held liable for any acts of discrimination based upon the perception that an employee is pregnant. This amendment expands the protected class of pregnant employees to include those who are not pregnant, but who suffer adverse employment actions based on the perception by employers that they are pregnant. The following is a list of other unlawful conduct for which employers can now be held liable:
- Transferring an employee affected by pregnancy over her objection to another position, except that an employer may transfer an employee for its legitimate operational needs unrelated to the employee's pregnancy or perceived pregnancy;
- Requiring an employee to take a leave of absence because of pregnancy or perceived pregnancy when the employee has not requested leave;
- Retaliating, discharging or otherwise discriminating against an applicant or employee because she has opposed employment practices forbidden under the Fair Employment and Housing Act (FEHA) or because she has filed a complaint, testified or assisted in any proceeding under the FEHA.
Calculation of Four Month Leave Period
- Employees are now eligible for up to four months of PDL per pregnancy, not per year.
- The regulations now calculate the four month leave period in hours instead of days. Four months is defined as one-third of a year or 17 1/3 weeks, and a full-time employee working 40 hours a week is entitled to 693 hours of leave. Part-time employees working 20 hours per week are entitled to 346.6 hours of leave. An employee who works 48 hours per week is entitled to 832 hours of leave.
- Employers may now account for increments of intermittent leave or reduced work schedules using an increment no greater than the shortest period of time the employer uses to account for use of other forms of leave, but not greater than one hour.
Reinstatement Rights of Employees Returning From PDL
- It is no longer a defense to an employee's right to reinstatement for an employer to claim that each means of preserving the job or duties for the employee (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the employer's ability to operate the business.
- However, an employer may defend against a claim that it unlawfully failed to reinstate an employee to the same position she held before a leave or transfer, if the employer can show that the employee would not have held the position at that time for legitimate business reasons unrelated to the employee taking pregnancy disability leave or transfer (such as layoff pursuant to a plant closure). Even if the employer has given an employee a written guarantee of reinstatement, an employee has no greater right to reinstatement to the same position than those rights she would have had if continuously at work during the pregnancy disability leave or transfer period. Similarly, an employer's refusal to reinstate an employee to a comparable position is justified if the employer proves that it would not have offered a comparable position to the employee if she would have been continuously at work during the pregnancy disability leave or transfer period.
- An employer has an affirmative duty to provide notice of available positions to the employee. If a comparable position is not available on the employee's scheduled date of reinstatement, but the employee is later reinstated within the 60 calendar day period, the period between the employee's scheduled date of reinstatement and the date of her actual reinstatement will not be counted for purposes of any employee pay or benefit.
- A position is considered "available" if it is open on the employee's scheduled date of reinstatement or within 60 calendar days of the scheduled reinstatement date and the employee is qualified for the position. This is a change from the previous requirement that the position be open within 10 working days from the employee's scheduled date of reinstatement.
Reasonable Accommodation Requirements
Effective December 30, 2012, there is no eligibility requirement, such as minimum hours worked or length of service, before an employee affected or disabled by pregnancy is eligible for reasonable accommodation. Also, under the new regulations, the right to take pregnancy disability leave is separate and distinct from the right to take leave of absence as a reasonable accommodation under Government Code section 12940. The new Section 7219.17 sets forth the rules that apply to any request for reasonable accommodation, transfer or disability leave because of pregnancy.
Notices "A" and "B" and Medical Certification Form
Notices A and B and the approved medical certification form have been updated:
Notices A and B have been amended with some key changes in the employers' responsibility to inform its workforce of their PDL rights.
- Employers may now electronically post Notices A and B. Those employers who publish handbooks that describe other kinds of reasonable accommodation, transfers or temporary disability leaves are encouraged to include a description of reasonable accommodation, transfer and pregnancy disability leave in the next edition of its handbook or distribute copies of these notices on an annual basis.
- For FEHA-covered employers with a work force comprised of 10 percent or more of persons whose primary language is not English, the Notices must be translated into the languages spoken by these employees. Employers must also give verbal or written notice in the appropriate language to those employees of their rights to pregnancy disability leave, reasonable accommodation and transfer once the employer knows the employee is pregnant.
Overlap with CFRA and FMLA, Continuing Medical Coverage
Effective December 30, 2012, the maximum leave entitlement for employees who qualify for California Family Rights Act (CFRA) leave for both pregnancy disability leave and CFRA leave for reasons of the birth of a child and/or the employee's own serious health condition is 29 1/3 weeks assuming the employee is disabled by pregnancy for 17 1/3 weeks and then requests a 12 week CFRA leave. The right to take pregnancy disability leave is separate and distinct from the right to take leave of absence as a reasonable accommodation under Government Code section 12940.
Furthermore, employers must maintain and pay for coverage for an eligible female employee who takes pregnancy disability leave for the duration of the leave (not to exceed four months in a 12-month period) at the same level and under the same conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. This coverage period cannot be used to meet an employer's obligation to pay for 12 weeks of group health coverage during CFRA or FMLA leave.
Employers may recover from the employee premiums paid while the employee was on pregnancy disability leave if the employee fails to return at the end of the leave and the employee's failure to return is for a reason other than: (1) taking CFRA leave; (2) continuation or recurrence or onset of health condition that entitles employee to pregnancy disability leave; (3) non-pregnancy related medical conditions requiring further leave; and (4) any other circumstance beyond the control of the employee, including where the employer is responsible for the employee's failure to return.
Under the new law, there is no longer any distinction between Title VII and non-Title VII employers. Thus, there is no obligation for non-Title VII employers to pay an employee disabled by pregnancy for six weeks.
New and Modified Definitions
The newly adopted PDL regulations also include some newly defined and modified terms. The newly defined terms are as follows:
- A condition related to pregnancy, childbirth or a related medical condition
- Eligible female employee
- Group health plan
- Intermittent leave
- Perceived pregnancy
- Reasonable accommodation of an employee affected by pregnancy
- Reduced work schedule
- Related medical condition
The following terms have been modified:
- Affected by pregnancy
- Because of pregnancy
- Disabled by pregnancy
- Employment in the same position
- Employment in a comparable position
- Four months
- Health care provider
- Medical certification (previously Certification)