New California Pregnancy Leave
By Christopher W. Olmsted
Under the California Fair Employment and Housing Act, covered California employers are required to provide up to four months of leave time for employees with pregnancy-related disabilities. Additionally, employers must accommodate pregnant employees in various ways. California has implemented new pregnancy leave regulations effective December 30, 2012. Employers should note the changes and update policies and practices.
Generally, a woman is “disabled by pregnancy” if, in the opinion of her health care provider, she is unable because of pregnancy to perform any essential job function.
The new regulations add specific examples of conditions which may be considered disabling or which may give rise to the right to time off. They include: severe morning sickness, 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.
Employers should note that some of these conditions may occur after pregnancy. For example, an employee suffering from post-partum depression may be entitled to time off, a job transfer, or other form of reasonable accommodation.
The regulations specify that generally lactation without medical complications is not a “disability related medical condition” requiring pregnancy disability leave, although it may require transfer to a less strenuous or hazardous position or other reasonable accommodation.
The regulations also note that with respect to lactation, California Labor Code section 1030 requires employees to provide break time to express breast milk.
Amount of Leave Time
California PDL provides up to four months of leave time. How should an employer calculate that time period? Many employers have assumed that four months equals 16 weeks. Under the new regulations, this assumption is incorrect. The new regulations specify that “four months” is equal to 17 1/3 weeks (one-third of 52 weeks).
If an employee does not work full time, the four months is calculated based on the number of days the employee would normally work within four continuous calendar months. A full time employee would be entitled to 693 hours of leave based on 40 hours per week times 17 1/3 weeks. Part time employees receive a pro rata amount. For example, an employee who works 20 hours per week is entitled to 346.5 hours of leave. And, notably, a person who works 48 hours per week is entitled to 832 hours of leave.
If an employee’s schedule varies from month to month, a monthly average of the hours worked over the four months prior to the beginning of the leave shall be used for calculating the employee’s normal work month.
Reasonable Accommodation or Transfer
Most California employers are aware that PDL provides up to four months of time off from work. Another aspect of the law that is often overlooked is the obligation to provide reasonable accommodation or transfer to another position. The new regulations supply additional details in this regard.
Reasonable accommodation of an employee affected by pregnancy is any change in the work environment or in the way a job is customarily done that is effective in enabling an employee to perform essential job functions. In this regard it is not unlike reasonable accommodation under the ADA or FEHA for disabled employees.
The regulations mandate that employers provide any reasonable accommodation that is medically advisable. As with the ADA and FEHA, employers are obligated to engage in an interactive process with the employee. However, unlike the ADA and FEHA, the regulations provide no avenue for discussing alternative accommodations and offer no exceptions for undue hardship.
Where the accommodation is a change in job duties or restructuring, the employee’s four month leave entitlement is unaffected. But where the accommodation is a reduced schedule or intermittent time off, the time is deducted from the leave entitlement.
The regulations also require an employer to transfer an employee to an available position upon advice of a health care provider.
PDL requires employers to reinstate employees to their original positions upon the conclusion of the pregnancy-related medical condition. The new regulations eliminate an exception that permitted employers to deny reinstatement where preserving the job would substantially undermine the employer’s ability to operate the business safely and efficiently.
If the employer is excused from reinstating the employee to the same position (e.g. the position was eliminated for reasons unrelated to the absence) then the employer must reinstate the employee to a comparable position. The new regulations specify that the employer must offer any position for which the employee is qualified, if it opens up within 60 calendar days of the schedule return date. The new regulations also state that the employer has an affirmative obligation to provide notice of openings to the employee by phone, email, website links, letter or in person.
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