Final regulations issued by the California Fair Employment and Housing Commission’s (FEHC’s) Office of Administrative Law will change the way in which employers in the state administer pregnancy disability leave and treatment of pregnant employees.
The changes, which become effective December 30, 2012, are summarized below:
Perceived pregnancy discrimination
The final regulations expand discrimination protections to employees that an employer "perceives" as being pregnant. "Perceived" pregnancy discrimination means being regarded or treated by an employer (or other covered entity) as being pregnant or having a related medical condition.
According to the Commission, perceived pregnancy was added after receiving public input from employer groups that the current regulations did not differentiate between the requirements to provide reasonable accommodation, transfer, and pregnancy disability leaves to pregnant employees, which would not be available to employees perceived to be pregnant and protect against discrimination on the basis of pregnancy, which would include perceived pregnancy.
"Disabled by pregnancy"
The final regulations provide that an employee 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, loss or end of pregnancy.
The newly added list of conditions is not exclusive, and is for illustrative purposes only, say the regulations. The Commission added the list of conditions after it received input from both employers and groups representing employees that clarifying examples of the types of conditions in which an employee could be disabled pre-and post-natal would be useful.
The term a "condition related to pregnancy, childbirth, or a related medical condition," was also amended to include lactation. The final regulations state that generally, lactation without medical complications is not a disabling "related medical condition" requiring pregnancy disability leave, although it may require transfer to a less strenuous or hazardous position or other reasonable accommodation.
Four months calculations
Recognizing that the 4-month period of leave allowed for pregnancy disability can be an ambiguous term—especially when leave is taken intermittently, the Commission determined that it would be more useful to know the number of days in 4 months in order to calculate an employee’s total leave eligibility.
Under the final regulations, a 4-month leave means time off for the number of days or hours the employee would normally work within 4 calendar months (one-third of a year or 17? weeks) if the leave is taken continuously, following the date the pregnancy disability leave commences. For a full time employee who works 40 hours per week, "four months" is 693 hours of leave entitlement, based on 40 hours per week times 17? weeks.
For employees who work more or less than 40 hours a per week, or who work on variable work schedules, the number of working days that constitutes "four months" is calculated on a pro rata or proportional basis.
For example, the regulations state that for an employee who works 20 hours per week, "four months" means 346.5 hours of leave entitlement. For an employee who normally works 48 hours per week, "four months" means 832 hours of leave entitlement. reasonable (CA Code of Regs. Tit. 2, Div. 4, Ch. 1. Sub 6A Sec. 7291.9). If an employee’s schedule varies from month to month, a monthly average of the hours worked over the 4months prior to the beginning of the leave should be used for calculating the employee’s normal work month.
Note: The final regulations make it clear that employees are eligible for up to 4 months of leave per pregnancy, not per year.
The final regulations specifically prohibit employers from refusing to maintain and to pay for coverage under a group health plan for an eligible employee who takes pregnancy disability leave under the same terms and conditions that would have been provided if the employee had not taken leave. The Commission added this definition to conform to the 2011 state legislation requiring employers to continue group health plan coverage for employees taking pregnancy disability leave. (Stats. 2011, c. 510 (S.B. 299, Sec.1.5).
The Commission added this definition, which roughly follows the definition of "reasonable accommodation" for disability under state law. The final regulations include clarifying examples of the kinds of reasonable accommodation needed by women disabled by pregnancy, childbirth, or related medical conditions. The regulations contain provisions regarding transfer during pregnancy.
The final regulations make it clear that the right to provide reasonable accommodation does not apply to an employee who is perceived to be pregnant. This provision applies only to an employee who is "affected" or "disabled" by pregnancy.
The final regulations for pregnancy disability do not contain an "undue hardship" exception because the pregnancy disability law (Gov. Code Sec. 12945, Sub. (a)(3)(A)) does not include such an exception. The final regulations unequivocally state that 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, transfer, or disability leave.
The regulations provide that when a reasonable accommodation, such as a change of work duties or job restructuring, is granted, it may not affect the employee’s independent right to take up to 4 months for pregnancy disability leave under state law. If the requested reasonable accommodation, however, involves a reduction in hours worked such as a reduced work schedule, or intermittent leave, the employer may consider this as a form of pregnancy disability leave and deduct the hours from the employee’s 4 month leave entitlement.
The final regulations state that an employer may require written medical certification. However, the employer must notify the employee of the need to provide medical certification; the deadline for providing certification; what constitutes sufficient medical certification; and the consequences for failing to provide medical certification. The medical certification requirements for pregnancy disability leave closely follow those of the FMLA. .
Notice of the need for medical certification must be given each time a certification is required. The employer must provide the employee with any employer-required medical certification form for the employee’s health care provider to complete. For this purpose, the FEHC has created a Certification of Health Care Provider for Pregnancy Disability Leave, Transfer and/or Reasonable Accommodation form. An employer may also develop its own form.
Reinstatement after leave
An employee who exercises her right to take pregnancy disability leave is guaranteed a right to return to the same position. If the employer is excused from reinstating the employee to her same position (see below), the employee may be entitled to reinstatement to a comparable position.
A comparable position is one that that is virtually identical to the employee’s position held prior to accommodation, transfer, or leave in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. It must be performed at the same or geographically proximate worksite from the employee’s prior position and ordinarily has the same shift or the same or an equivalent work schedule.
The final regulations provide that the employer must provide the employee with a guarantee of reinstatement in writing, if requested to do so by the employee. If the employee takes intermittent leave or a reduced work schedule, only one written guarantee of reinstatement is required. Refusing to honor the guarantee is an unlawful employment practice unless the refusal is based on one of the exceptions to reinstatement discussed below.
An employee has no greater right to reinstatement to the same position or to other benefits and conditions of employment than those rights she would have had if she had been continuously at work during the pregnancy disability leave or transfer period. This is true even if the employer has given the employee a written guarantee of reinstatement.
The employer may refuse to reinstate the employee to her same position or duties if the employee would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking pregnancy disability leave or transfer (such as a layoff pursuant to a plant closure). If the employer is excused from reinstating the employee to her same position, it may also refuse to reinstate the employee to a comparable position if the employer proves either:
- The employer would not have offered a comparable position to the employee if she would
- There is no comparable position available.
Note: A position is "available" if there is a position open on the employee’s scheduled date of reinstatement or within 60 calendar days for which the employee is qualified, or to which the employee is entitled by company policy, contract, or collective bargaining agreement. If a comparable position is not available on the employee’s scheduled date of reinstatement, but the employee is later reinstated under the 60 calendar day period, the period between the employee’s scheduled date of reinstatement and the date of her actual reinstatement cannot be counted for purposes of any employee pay or benefit.
An employer has an affirmative duty to provide notice of available positions to the employee by means reasonably calculated to inform the employee of comparable positions during the requirement period. Examples include notification in person, by letter, telephone or email, or by links to postings on the company’s website if there is a section for job openings.
An employer must give employees reasonable advance notice of FEHA rights and obligations regarding pregnancy, childbirth or related medical conditions as set forth in Notice A or Notice B, depending on the employer’s size. The final regulations contain new versions of both Notice A and Notice B, reflecting the recent changes to the regulations.
Employers must post and keep the appropriate notice posted in a conspicuous place or places where employees congregate. Electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the legal requirements for notice. An employer is also required to give an employee a copy of the appropriate notice as soon as practicable after the employee tells the employer of her pregnancy or sooner if the employee inquires about reasonable accommodation, transfer, or pregnancy disability leaves.
The final regulations "encourage" employers that publish an employee handbook that describes other kinds of reasonable accommodation, transfers or temporary disability leaves available to its employees to include a description of reasonable accommodation, transfer, and pregnancy disability leave in the next edition of its handbook that it publishes following adoption of these regulations. In the alternative, the employer may distribute a copy of its Notice to its employees at least annually (distribution may be by electronic mail).
Any FEHA-covered employer whose work force at any facility or establishment is comprised of 10 percent or more persons whose primary language is not English must translate the notice into the language or languages spoken by employees. In addition, the employer must make a reasonable effort to give either verbal or written notice in the appropriate language to any employee who the employer knows is not proficient in English, and for whom written notice previously has not been given in her primary language.
Susan Schoenfeld, J.D., is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, sexual harassment, and general employment discrimination. She has litigated numerous cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor. In addition to litigating employment cases in state and federal court, she provided training and counseling to corporate clients regarding employment-related issues. Prior to entering private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for the Office of Federal Contract Compliance Programs, the Directorate of Civil Rights, and the Mine Safety and Health Administration. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from Union College, and her law degree from the National Law Center at George Washington University.
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