Ensuring Compliance With California’s Revised Pregnancy Disability Leave Regulations

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California recently adopted the most sweeping changes to the regulations implementing its  pregnancy disability leave (PDL) law in 17 years.  These changes, which became effective on December 30, 2012, significantly impact the manner in which employers must administer and provide pregnancy-related leaves, transfers and accommodations to their California employees.

Some of the most significant changes include the following:

  • Maintaining Group Health Plan Benefits: Employers must now continue to pay for the benefits of an employee participating in any company group health plan coverage for the duration of her PDL (up to four months during the course of a 12-month period).  PDL benefits are separate from and in addition to any benefits to which an employee may be entitled under the California Family Rights Act, including the right to continued participation in employer group health plan benefits for up to 12 weeks.
  • Reasonable Accommodations (Including Transfers): California employers were previously obligated to reasonably accommodate temporary disabilities caused by pregnancy.  There was, however, virtually no specific guidance regarding that obligation.  The new regulations include detailed guidance as to what accommodations other than temporary transfers may be offered and when such accommodations are reasonable.  For example, the new regulations provide that modifying work duties, practices or policies, and providing stools or chairs are examples of potentially reasonable accommodations.  Additionally, in keeping with similar guidance under the Americans with Disabilities Act and the California Fair Employment and Housing Act, the new regulations also require California employers and employees to engage in a good faith “interactive process” regarding any requests for reasonable accommodation.  This means that employers must engage in a dialogue with employees about requested pregnancy-related accommodations similar to that required when accommodations are requested by other disabled employees.
     
  • Calculating the Four-Month Leave Entitlement:  Employees are eligible for up to four months of pregnancy disability leave per pregnancy.  The previous regulations defined this four-month period as 88 paid, eight-hour days for full-time employees (the equivalent of 704 hours).  The new regulations have re-defined the four-month obligation as the number of days that an employee would normally work within four calendar months, defined as 17⅓ weeks.  For a full-time employee regularly scheduled to work 40 hours per week, four months now means 693 hours of leave entitlement, while the amount of leave available to employees who work more or less than five days a week, or who work variable work schedules, is calculated on a pro rata or proportional basis.  Although the new definition may result in slightly shorter leaves for full-time employees, it also requires employers to carefully track PDL.  As with the Family and Medical Leave Act regulations, the new regulations now provide that the minimum increment for tracking intermittent leave is the shortest period of time used by the employer to account for absences or use of leave, provided that it is one hour or less.

The new regulations also clarify that the provision of any reasonable accommodation that does not involve a reduction in hours worked does not affect (or reduce) an employee’s right to take up to four months of a pregnancy disability leave.

  • Medical Certification: Employers must now notify employees of the need to provide medical certification, the deadline for providing the medical certification, what constitutes sufficient medical certification, and the consequences for failing to provide medical certification.  Employers must now also notify employees of the medical certification requirement each time a certification is required and provide the employee with any employer-required medical certification form for the employee’s health care provider to complete.  Under the provisions of the new regulations, employers can delay granting (or continuing) a requested reasonable accommodation, transfer or leave to an employee who fails to provide timely certification after being requested to do so.  However, the new regulations do not expressly address when, if ever, an employer may terminate employment based on a failure to provide medical certification.  The new regulations also provide that to the extent that the employer’s sick or medical leave plan has certification requirements that are less stringent than those under the regulations, and the employee or employer elects to substitute sick, vacation, personal or family leave for unpaid pregnancy disability leave, the employer can only impose the less stringent certification requirements.
     
  • Approved Model Medical Certification Form: The regulations now include a model medical certification form for use by employers.  Although use of the model form is not mandatory, courts will presumably provide a safe harbor to employers using the approved form.  A copy of the approved medical certification form can be downloaded as a separate PDF file here.  
     
  • Reinstatement Rights: Previous regulations provided a defense to reinstating an employee at the end of leave where a comparable position was available but filling it with the returning employee would substantially undermine the employer’s ability to operate the business safely and efficiently.  Similarly, the previous regulations provided that employers did not have to preserve an employee’s job or duties (such as leaving her position unfilled or filling it with a temporary employee) where doing so would substantially undermine the employer’s ability to operate the business safely and efficiently.  The provisions have been eliminated from the new regulations.  

Under the new regulations, an employer who eliminates an employee’s position while she is on PDL must use reasonable means to notify her of other available comparable positions for which she is qualified within 60 calendar days of the date on which she would have been reinstated. 

  • Discrimination and Harassment Based on Perceived Pregnancy: Harassment and discrimination of job applicants and employees based upon perceived pregnancy is expressly unlawful under the new regulations.  Employers, however, need only provide leave, reasonable accommodation, transfers and continuation of benefits to employees based on an actual pregnancy (or related medical conditions) — not based upon a perceived pregnancy. 
     
  • Elimination of “Non-Title VII” Employer Provisions: The previous regulations had several exceptions to specified requirements for “Non-Title VII Employers,” which were defined as those with between 5 and 14 employees who were not subject to Title VII of the federal Civil Rights Act of 1964.  These provisions were eliminated from the new regulations. 
     
  • Updated Pregnancy Disability Leave Notices: Previously approved Notice A (for employers subject to Pregnancy Disability Leave) and Notice B (for employers subject to the Family and Medical Leave Act and the California Family Rights Act) were updated to reflect regulatory changes.  The most current version of these posters can be accessed  via the Internet site of the Department of Fair Employment and Housing.       

Although the new rules for posting and distributing notices are similar to the old rules, they now allow for electronic posting and distribution by email under some circumstances.

  • New Definition of Pregnancy Disability: Although the PDL previously protected employees temporarily disabled due to pregnancy, childbirth or a related medical condition, the previous regulations were vague as to what qualified as a “related medical condition.”  The new regulations state that a temporary disability includes (but is not limited to) the following “related medical conditions”: lactation, prenatal or postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, childbirth, loss or end of pregnancy, and recovery from childbirth, loss or end of pregnancy. 
     
  • New Definition of Health Care Providers: The new PDL regulations have also expanded the definition of who qualifies as a “Health Care Provider.”  The definition now includes marriage and family therapists, acupuncturists, licensed midwives, clinical psychologists, clinical social workers, chiropractors, and physician assistants.

Employers must ensure compliance with the new PDL regulations, which includes updating employment policies and forms, as well as administration of the leave, and integrating the new obligations with those under other applicable leave laws.  This includes, but is not limited to,  updating and distributing notices (as posters and otherwise), updating employee handbooks, personnel policies, and leave-related forms, measuring and tracking available leave consistently with the new rules, and ensuring the proper processing and consideration of requests for reasonable accommodations other than transfers or time off.  It is also important to train supervisors and human resources personnel regarding the most significant changes.  Employers are encouraged to consult with competent California employment counsel to facilitate the transition.

Topics:  Disability, Discrimination, Employer Group Health Plans, Paid Leave, Pregnancy, Pregnancy Discrimination, Reasonable Accommodation, Reinstatement

Published In: Civil Rights Updates, Labor & Employment Updates

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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