Changes to FEHA Pregnancy Regulations

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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New pregnancy regulations proposed by the Fair Employment and Housing Commission (FEHC) were approved on November 30, 2012. The changes to the California Fair Employment and Housing Act (FEHA), which applies to employers with five or more employees, went into effect on December 30, 2012.

The substantive changes in the new regulations include:

(a) an expanded definition of “disabled by pregnancy,” which includes a non-exclusive list of medical conditions related to pregnancy;

(b) clarification of the definition of “four months” of leave as one-third of a year, equaling 17 1/3 weeks;

(c) clarification of employer responsibilities with regard to reasonable accommodations and transfers;

(d) added prohibitions against discrimination or harassment based on “perceived pregnancy”;

(e) new notices, which are required to be posted and given to employees affected by pregnancy, [Notice A for employers with less than 50 employees, and Notice B for employers with 50 or more employees]; and

(f) an obligation, for employers that choose to require medical certification from the employee, to notify the employee in writing and provide a form for the medical provider to complete. Employers may develop their own form or use the form provided in the regulations (pages 24 and 25).

According to Keith Watts, the managing shareholder in Ogletree Deakins’ Orange County office, “The good news for employers is that where before there was ambiguity in the pregnancy regulations, we now have greater clarity. Unfortunately, with clarity comes the burden of additional requirements. While these requirements are similar in some respects to those that already exist under the Family and Medical Leave Act and the California Family Rights Act, failure to comply may provide another ‘employment trap for the unwary’ and lead to more employment litigation.”

For an in-depth analysis of the new regulations, click here.

 

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