2013 Updates to the FEHA California Pregnancy Regulations

by Orrick - Global Employment Law Group
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Amendments to California’s pregnancy regulations became effective on December 30, 2012, creating many new responsibilities for employers. While employers should take note of all of the amended regulations, some of the most significant changes are discussed below.

Employees are now eligible for up to four months of pregnancy-disability leave (PDL) per pregnancy, not per year. The first notable change is the clarification of what “four months” means in terms of maximum leave entitlement. The regulations explain that “four months” is computed as the average number of days or hours that an employee would normally work within one-third of a year (or, 17⅓ weeks). For example, a full-time employee working 40 hours per week would be entitled to 693 hours of leave (40 hours x 17⅓ weeks). Likewise, a part-time employee who works 20 hours per week is entitled to fewer hours of leave (346.5), and an employee who works more than 40 hours a week would be entitled to more than 693 hours. An employee may also take leave on an intermittent basis, and an employer may account for that leave using either the shortest period of time that the employer uses to account for any leave, or one hour, whichever is smaller.

Next, the regulations clarify that employers must continue insurance coverage for the entire PDL period, under the same conditions as if the employee had not taken the leave. Moreover, employers may not use the time they maintain and pay for health coverage during pregnancy leave to meet their obligations to provide coverage for CFRA protected leave. Therefore, employers may be required to maintain the employee’s healthcare coverage for a period of up to 29⅓ weeks if the employee takes her maximum PDL entitlement and then takes her maximum CFRA entitlement for baby-bonding (or for any other CFRA-qualifying reason).

The definition of disabled by pregnancy has expanded. Previously, a woman was “disabled by pregnancy” if she was unable to perform one or more of the essential functions of her job, or was unable to perform one of these functions without undue risk to herself, her pregnancy’s successful completion, or other persons. The regulations now provide a non-exhaustive list of conditions that may render an employee “disabled by pregnancy”: severe morning sickness, needing time off for prenatal or postnatal care, bed rest, post-partum depression, gestational diabetes, pregnancy-induced hypertension, preeclampsia, childbirth, loss or end of pregnancy, and recovery from childbirth, loss or end of pregnancy.

Under the new regulations, an employer is excused from reinstating an employee to her exact same position only if the employer can prove by a preponderance of the evidence that the employee would not have been employed upon her return for reasons unrelated to the leave, such as a mass layoff. Employers can no longer refuse to reinstate an employee to her same position by arguing that keeping her position open would substantially undermine the employer’s ability to operate the business safely and efficiently. As before, if an employer cannot reinstate an employee to her exact same position, the employer has a duty to reinstate her to a comparable position for which she is qualified. Previously, employers were required to notify employees of comparable positions that became available within ten days of the employee’s scheduled date of reinstatement. Now, employers must notify the employee of comparable positions that become available within 60 calendar days of the employee’s scheduled date of reinstatement, or to which she is entitled because of a prior agreement or policy. This notification can be in any form.

Another area of notable change concerns reasonable accommodation. First, undue hardship is not a defense to reasonable accommodation because of the limited duration and scope of these accommodations. Second, an employee may accommodate a pregnant employee by transferring her to a less strenuous or hazardous position, if her healthcare provider says it is medically advisable, and the employee is qualified. An employer is not required to create a job solely to accommodate the employee if it would otherwise not create the job, would have to discharge another employee, or violate a collective bargaining agreement. However, the employer must create a light-duty job if it has done so for occupationally-injured employees. The regulations also include a non-exhaustive list of other types of accommodations, such as modifying work schedules, providing stools or chairs, or allowing more frequent restroom breaks.

The new regulations also require employers to give employees advance written notice of their rights under the statute.  In particular, the amendments require three methods of distributing this notice (all three methods of distribution are required). First, employers must post the notice in a conspicuous place (electronic posting is acceptable). Second, employers must give the notice to an employee who alerts the employer of their pregnancy. And third, employers must publish the notice in the next edition of the employee handbook, or distribute it annually (electronic publication is acceptable). In addition, the template notices in the regulations have been reworded to include even more information about pregnancy disability leave, reasonable accommodations, and employers’ obligations to their employees.

Finally, employees who are “perceived to be pregnant” are now protected from discrimination.

A full copy of the amended regulations can be found at Title 2, California Code of Regulations, Sections 7921.2 et seq.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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