By Ann M. Noel, Esq., Noel Workplace Consulting[1]

Changes to California’s pregnancy discrimination regulations, effective December 30, 2012, provide much needed guidance to employees, applicants and employers about reasonable accommodation, transfer and disability leave for pregnant women in the workplace.[2]
 
Here are the top ten reasons why these pregnancy regulations should be essential to your practice if you represent pregnant workers or advise employers with pregnant workers.
 
No. 1:  New and Improved Definitions!
The new pregnancy regulations provide clarity on a number of important terms used in this field. 

Some notable examples include:

  1. Disabled by Pregnancy.”  The new regulations place the determination of whether a woman is disabled by pregnancy squarely in the medical evaluation of the woman’s health care provider.  The regulations specify that a woman is “disabled by pregnancy” if, in the opinion of her health care provider, she is unable because of pregnancy to perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons.  An employee also may be considered to be “disabled by pregnancy” if, in the opinion of her health care provider, she is suffering from severe “morning sickness” or needs to take time off for prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; childbirth; loss or end of pregnancy; or recovery from childbirth.  The regulations specify that this list is non-exclusive and illustrative only.[3]
  2. Four Months.”  FEHA provides that a woman can take a pregnancy disability leave up to “four months” when she is disabled by pregnancy, childbirth or a related medical condition.[4]  The new regulations clarify that “four months” means the number of days and hours an employee would work in one-third of a year.[5]
  3. Health Care Provider.”  The new regulations follow the federal Department of Labor’s definition used in the Family and Medical Leave Act (FMLA)[6] regulations [7] for a “health care provider” and also add marriage and family therapists and acupuncturists. [8]
  4. Reasonable Accommodation.”  For the first time, the new regulations provide a definition of and provisions about reasonable accommodation.  A “reasonable accommodation” is defined as one that is “effective in enabling an employee to perform the essential functions of a job” and may include modifying work practices, policies, work duties, or work schedules as well as permitting more frequent rest breaks, providing furniture such as stools or chairs, or providing break time and a private room to express breast milk.[9]  This definition tracks, in large part, a comparable definition for “reasonable accommodation” in the Commission’s new disability regulations.[10]  
  5. Related Medical Condition.”  The Fair Employment and Housing Act (FEHA)[11]  defines “sex” to include pregnancy, childbirth or breastfeeding or medical conditions related to pregnancy, childbirth or breastfeeding.[12]  The new regulations provide numerous examples of “related medical conditions” which include gestational diabetes, pregnancy-induced hypertension; preeclampsia; lactation-related conditions such as mastitis; loss or end of pregnancy; recovery from loss or end of pregnancy; or post-partum depression.[13]

No. 2:  Making it Crystal Clear – No Eligibility Requirements for Reasonable Accommodation, Transfer or Pregnancy Disability Leave
Unlike leave taken as a “serious health condition” under the California Family Rights Act (CFRA)[14] or the FMLA, pregnancy disability leave under FEHA has no eligibility requirements, such as minimum hours worked or length of service, before an employee is eligible for reasonable accommodation, transfer or disability leave.[15]  These regulations make that explicit.[16]
 
No. 3:  Distinguishing Between the Twins:  Equal Treatment vs. Pregnancy Disability
The FEHA provides protection for pregnancy in two very different, seemingly contradictory ways. 
 
The Equal Treatment Twin:  First, as the definition of “sex” includes pregnancy, childbirth, breastfeeding or related medical conditions, all of FEHA’s employment causes of action protecting against sex discrimination apply to discrimination because of pregnancy, childbirth, breastfeeding or related medical conditions, as well as “a perception that the person has any of those characteristics,” such as a perception that an employee is pregnant.[17]  The new regulations track this reality, stating that an employer, because of an employee’s or applicant’s pregnancy or perceived pregnancy, cannot refuse to hire, employ, train, or promote that individual and also cannot fire, harass, discriminate against, retaliate against, or transfer or require the individual to take leave against her wishes.[18]
 
The “Pregnancy Disability” Twin:  The new pregnancy regulations also provide guidance on the second important aspect of how FEHA protects pregnant employees, by requiring employers to provide reasonable accommodation, transfer employees to less strenuous or hazardous conditions, and afford employees pregnancy disability leave for their medical needs because of pregnancy, childbirth, breastfeeding, or related medical conditions.[19]  For these protections, the closest analogy is comparable disability provisions in FEHA and the Commission’s new disability regulations.[20]
 
No. 4:  Providing Guidance for the First Time about Reasonable Accommodation
The new regulations provide guidance regarding reasonable accommodation for an employee affected by pregnancy.  An employer must provide reasonable accommodation to an employee affected by pregnancy if the employee’s request is based on the medical advice of her health care provider, the request is “reasonable” as determined on a case-by-case basis taking into account the employee’s medical needs, the needed accommodation’s duration, the employer’s legally permissible past and current practices and other such factors.  The employer and employee must engage in an interactive process to identify and to implement the employee’s request for reasonable accommodation.[21]  The regulations provide that a reasonable accommodation must not interfere with an employee’s independent right to take a pregnancy disability leave except where the accommodation is a reduction in hours or intermittent leave, in which case, the employer may deduct the hours from the employee’s four month leave entitlement.[22]  An employer may require medical certification substantiating the employee’s need for reasonable accommodation.
 
No. 5:  Providing Transfers for both Twins:  Equal Treatment and Disability
FEHA has two provisions covering transfer to less strenuous or hazardous conditions, and the new regulations reflect these two mandates.  First, employers with a policy, practice or collective bargaining agreement requiring or authorizing the transfer of temporarily disabled employees to less strenuous or hazardous positions or duties, including work-related injuries, must apply such policy, practice or collective bargaining agreement equally to an employee disabled by pregnancy who requests a transfer.[23]
 
Second, regardless of whether an employer has a transfer policy, an employer must grant the request of an employee affected by pregnancy to transfer provided that the request is based on the advice of the employee’s health care provider stating that it’s medically advisable for her to transfer, and the transfer can be reasonably effected by the employer.[24]  The regulations note that an employer is not required to create a new position, discharge another employee, violate the terms of a collective bargaining agreement, transfer another employee with more seniority, or promote or transfer any employee who is not qualified to perform the new job.[25]  The employer may, but is not required to, transfer another employee to accommodate the pregnant employee’s transfer request.[26]  An employer may require medical certification substantiating the need for the transfer. [27]  The employer bears the burden of proof to show that a transfer cannot be reasonably accommodated.[28]
 
Other points worth noting:  an employer may transfer an employee to an alternative position if there is a medical need for intermittent leave or a reduced leave schedule.  However, the employee must be qualified for the alternative position, and the position must have an equivalent rate of pay and benefits (but not duties) and must better accommodate the employee’s leave requirements.[29]

No. 6:  More Information on Pregnancy Disability Leaves & Reinstatement Rights
The new regulations provide more guidance to employers and employees on how to calculate the four-month leave.[30] For employees who work more or less than a 40 hour schedule, the leave is calculated on a pro rata or proportional basis.[31]  For all employees, leave may be taken all at once, on a reduced schedule, or intermittently.[32]  Employers may account for leave in increments of the shortest period of time the employer’s payroll system uses to account for other forms of leave, as long as the amount is not more than one hour.[33]  More generous policies available for other disability leaves must be applied to pregnancy disability leave, as well.[34]  Denial of pregnancy disability leave is an unlawful employment practice.[35]

An employee is entitled to guaranteed reinstatement after pregnancy disability leave or transfer to the same position unless employment would have ceased for reasons unrelated to taking the leave or transfer such as layoff because of a plant closure.[36]  The new regulations have eliminated the business necessity defense for employers.  If the job ceases, an employee has a right to a comparable position (similar to the right that she would have had if she’d been working when the layoff occurred).[37]  An employer must offer any comparable job which is available within 60 calendar days of the employee’s scheduled date of reinstatement for which the employee is qualified, or to which the employee is entitled by company policy, contract or collective bargaining agreement.[38]  An employer has an affirmative duty to provide notice of available positions to the employee by means reasonably calculated to inform the employee of the open positions.[39]
 
No. 7:  Longer Periods for Continuing Group Health Coverage
As of January 1, 2012, employers are required to continue group health benefits for employees taking pregnancy disability leave, not to exceed four months over the course of a year, beginning on the date the leave begins and maintained at the same level and conditions of coverage had the employee continued working.[40]  The regulations specify that the time that an employer maintains group health coverage during pregnancy disability leave cannot be used to meet an employer’s obligation to pay for 12 weeks of group health coverage during CFRA leave, regardless of whether the pregnancy disability leave is designated as family and medical leave under FMLA.[41]  Entitlements to employer-paid group health coverage during pregnancy disability leave and during CFRA are two separate and distinct entitlements.[42]  Employers may recover premiums for employees who fail to return to work after taking leave and the failure to return is for a reason other than the employee is taking CFRA leave, other medical leave, taking care of a sick family member, or other reasons beyond the control of the employee, such as a layoff.
 
No. 8:  Notice Requirements and New Notices to Post
The new regulations have notice requirements for employers and employees[43] as well as revamped notices for employers to post.[44]
 
No. 9:  Medical Certification and Medical Privacy
The new regulations also clearly delineate the medical information an employee needs to provide an employer for reasonable accommodation, transfer, or to take pregnancy disability leave.  To qualify for reasonable accommodation or transfer, an employer may require that an employee provide a medical certification from her health care provider that indicates the medical advisability of the reasonable accommodation or transfer.  This medical certification should contain a description of the requested reasonable accommodation or transfer, a statement describing the medical advisability of the requested reasonable accommodation or transfer because of pregnancy, and the date on which the need for reasonable accommodation or transfer became or will become medically advisable and the estimated duration of the reasonable accommodation or transfer.[45]
 
Similarly, a medical certification indicating disability necessitating a pregnancy disability leave is sufficient if it contains a statement that the employee needs to take pregnancy disability leave because she is disabled by pregnancy, childbirth or a related medical condition and the date on which the employee became disabled because of pregnancy and the estimated duration of the leave.[46] 
 
The regulations provide a medical certification form that the employer can give to the employee to give to her health care provider to furnish this information. [47]  If the certification satisfies the requirements listed above, the employer must accept it as sufficient and cannot ask the employee to provide additional information beyond that allowed by the pregnancy regulations.  If additional time is requested beyond the time originally estimated by the health care provider, the employer may require the employee to obtain recertification.[48]
 
No. 10:  When Four Months is Not Four Months – Thinking of Extra Leave as a Reasonable Accommodation of a Disability
Finally, the new regulations recognize that the right to take pregnancy disability leave is separate and distinct from any right to take a leave of absence as a form of reasonable accommodation for a physical or mental disability.  At the end or depletion of an employee’s pregnancy disability leave, an employee with a physical or mental disability, which may or may not be due to pregnancy, childbirth or related medical condition, may be entitled to reasonable accommodation for that disability.  Entitlement to a leave for a physical or mental disability must be determined on a case by case basis, using the standards provided in the Commission’s disability discrimination regulations. That right is not diminished by the employee’s exercise of her right to take a pregnancy disability leave.[49]
 
Note that a 2013 decision by the California Court of Appeal in Sanchez. v. Swissport, Inc.[50] held that pregnancy disability leave augments rather than replaces any leave provisions an employee might have for reasonable accommodation for a disability, buttressing its holding by citing the new pregnancy regulations.[51]

Use These Regulations!
Thanks to the hard work of the Fair Employment and Housing Commission and the invaluable input it received from many commentators, California now has landmark regulations protecting employment rights of pregnant workers.  These regulations need to be used to defend those employees.  As the Sanchez v. Swissport[52] decision indicates, a progressive, far-reaching statute with broad definitions of disability and reasonable accommodation rights for all disabled employees, including pregnant workers, plus comprehensive regulations interpreting that statute, equal good law for California. 

 __________________________


[1] Ann M. Noel, Esq., Noel Workplace Consulting, was through December 31, 2012, the Fair Employment and Housing Commission’s Executive and Legal Affairs Secretary and had principal responsibility for drafting and promulgating the new pregnancy and disability discrimination regulations. 
 
[2] See California Code of Regulations, title 2, §§ 11035 – 11051 (Cal. Code Regs., tit. 2).  All references are to Cal. Code Regs, tit. 2.  The Fair Employment and Housing Commission promulgated the pregnancy regulations as one of its last official acts.  As of January 1, 2013, the Commission ceased to exist and its rulemaking functions devolved to the newly-created Fair Employment and Housing Council.  On June 27, 2012, Governor Jerry Brown approved S.B. 1038 (Stats. 2012, c. 46), which eliminated the Commission and created the Fair Employment and Housing Council within the DFEH.
 
[3] Section 11035(f).
 
[4] Gov. Code § 12945(a)(1).
 
[5] Section 11035(l), see also section 11042(a).
 
[6] The Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. §2601 et seq.)
 
[7] 29 C.F.R. § 825 et seq. at § 825.125.
 
[8] Section 11035(n).
 
[9] Section 11035(s).
 
[10] For the comparable disability regulations definition of “reasonable accommodation,” see Section 11065(p).
 
[11] Gov. Code § 12900, et seq.  The provisions covering reasonable accommodation, transfer and pregnancy disability leave are at Government Code section 12945.
 
[12] FEHA provides that the definition of “sex” includes pregnancy, childbirth or breastfeeding, or conditions related to pregnancy, childbirth or breastfeeding.  (Gov. Code § 12926(q)(1).)
 
[13] Section 11035(u).
 
[14] The Moore-Brown-Roberti Family Rights Act of 1993 (CFRA), Gov. Code §§ 12945.1 and 12945.2.
 
[15] Both CFRA and FMLA require that an employee work for an employer with 50 or more employees within 75 miles of where the employee works, that the employee have worked for the employer at least a year, and have worked 1,250 hours in the prior calendar year.  (Section 11087(e) (CFRA) & 29 C.F.R. 825.110 (FMLA).)
 
[16] Section 11037.
 
[17] Gov. Code § 12926(n), provides in relevant part, “‘[S]ex’ includes a perception that the person has any of those characteristics [e.g., sex, including pregnancy, childbirth, breastfeeding or related medical conditions].”
 
[18] See Government Code section 12940(a) – (o).
 
[19] Section 11039(a)(2).  See Gov. Code § 12945(a)(1) [pregnancy disability leave], (a)(3)(A) [reasonable accommodation], and (a)(3)(B) & (a)(3)(C) [transfers].
 
[20] Section 11064 et seq.
 
[21] Section 11040(a).
 
[22] Section 11040(b).
 
[23] Section 11041(a)(1) and see Gov. Code § 12945(a)(3)(B).
 
[24] Section 11041(a)(2)(A).
 
[25] Section 11041(a)(2)(B).
 
[26] Ibid.
 
[27] Section 11041(a)(2)(C).
 
[28] Section 11041(b).
 
[29] Section 11041(c).
 
[30] Section 11042(a)(1).
 
[31] Section 11042(a)(2).
 
[32] Section 11042(a)(2)(B).
 
[33] Section 11042(a)(4).
 
[34] Section 11042(b).
 
[35] Section 11042(c).
 
[36] Section 11043(a).
 
[37] Section 11043(c)(2).
 
[38] Section 11043(c)(2)(B).
 
[39] Section 11043(c)(2)(B)(2).
 
[40] Gov. Code section 12945(2)(A); section 11044(c)(2).
 
[41] Section 11044(c)(2).
 
[42] Section 11044(c)(2).  The Fair Employment and Housing Commission recognized that this provision contradicts a provision in the CFRA regulations at section 11092(c)(2), which indicates that group health coverage can be limited to a maximum of 12 workweeks in a 12 month period for both CFRA and FMLA leave.  The Commission believed, however, that this CFRA regulation misinterprets CFRA, which provides, at Gov. Code section 12945.2(f)(1), for group health coverage for 12 weeks for either CFRA leaveor FMLA leave.
 
[43] Sections 11049 & 11050.
 
[44] Section 11051(a) & (b).
 
[45] Section 11050(b) & (b)(6).
 
[46] Section 11050(b)(7).
 
[47] Section 11050(e).
 
[48] Section 11050(b)(8).
 
[49] Section 11047.
 
[50] (2013) 213 Cal.App. 4th 1331, 1339 [ 153 Cal.Rptr. 3d 367, 371-372].
 
[51] 213 Cal.App. 4th at 1339, fn. 6 [153 Cal.Rptr. 3d at 372, fn. 6].
 
[52] (2013) 213 Cal.App. 4th 1331, 1339 [ 153 Cal.Rptr. 3d 367, 371-372].

 

 

 

 

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