Labor Law: New Pregnancy Regulations for Employees

Written By: Joseph J. Nardulli

California has adopted some important new regulations recently becoming effective as of December 30, 2012. These regulations are essential for all employees in California to become familiar with since they have made some sweeping changes as to protection offered to pregnant employees in California.

It should be noted that there has not been any changes of substance in this area of the law since 1995. The new regulations now provide that: (1) employers are now required to provide reasonable accommodation to pregnant employees; (2) breastfeeding is now include as a related medical condition; (3) employers must continue group medical care coverage for employees taking pregnancy disability leave; (4) previous small employer exception for leave and providing health insurance are eliminated; and (5) employers may not interfere with an employee’s pregnancy rights.

As has been noted in an exceptional piece by Ann M. Noel, past Legal Affairs Secretary for the Fair Employment and Housing Commission, in the “California Labor and Employment Review”, the new regulations have two important and distinct components.[1] There are two important components in the area of regulations involving pregnancy of employees.

1.  The equal Treatment Component.

Now, the Fair Employment and Housing Act (FEHA), defines “sex” to include “pregnancy, childbirth, or medical condition related to pregnancy or childbirth”, and commencing this year breast feeding. As a consequence, discrimination based upon sex extends to discrimination based upon pregnancy, childbirth or related medical conditions as well as discrimination based upon “a perception that the person has any of those characteristics”, that an employee is pregnant.

Therefore, in accordance with the statutory language found in FEHA, 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. The employer may take these actions so-long as they are not based upon discrimination based upon pregnancy or perceived pregnancy.

 2.  The Disability Component.

FEHA, further protects pregnant employees by requiring employers to provide reasonable accommodations, transfer employees to less strenuous or hazardous conditions, and afford employees pregnancy disability leave for medical needs because of pregnancy, childbirth or related medical conditions. It is of note that breastfeeding is also protected.

The new portions of the regulations can be summarized in pertinent part as follows: (1) “affected by pregnancy” is defined as “because of pregnancy, childbirth or a related condition”, or “because of a condition related to pregnancy, childbirth, or a related condition”, it is advisable for an employee to transfer or otherwise to be reasonably accommodated by new employer”. As a consequence, such things as conditions caused by lactation are protected.

Importantly, the definition of “disabled by pregnancy” includes time an employee is unable to perform one or more essential functions of her job. The regulations specify examples of the type of medical conditions that are covered, including severe morning sickness, 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.

FEHA provides that a woman may take up to four months for pregnancy disability leave.  The fourth month period is defined as one-third of a year, equaling 17 1/3 weeks, which equals 693 hours for an employee working 40 hours per week. The definition of health care provider has been expanded to include licensed marriage and family therapists, and acupuncturists.

“Reasonable accommodation” has been redefined as one that is effective in enabling an employee to perform the essential function 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 a break time and a private room to express breast milk.

The regulations also provide guidelines for reasonable accommodation. For example, an employer must provide reasonable accommodation to an employee affected by pregnancy, if the employee’s request is based on medical advice of her health care provider, and the request if “reasonable” as determined in a case – by – case basis. In this regard the employer and employee must engage in an interactive process to identify and implement the employer’s request for reasonable accommodation.  The regulations provide that a reasonable accommodation must not interfere with an employee’s independent right to take a pregnancy disability leave, except when the accommodation is a reduction of hours or intermittent leave, in which case, the employer may deduct the hours from the employee’s four month leave entitlement.  An employer may require a medical certification substantiating the employee’s need for reasonable accommodations.

TRANSFERS

FEHA has adopted two provisions covering transfer to less strenuous or hazardous conditions.  First, employers with a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of temporarily disabled employees to less strenuous and hazardous positions or duties including for work-related injuries, must apply that policy, practice or collective bargaining agreement equally to an employee disabled by pregnancy who requests a transfer.

Secondly, regardless of whether an employer has a transfer policy, an employer must grant the request of an employee affected by pregnancy, provided the request is based on the advice of the employee’s health care provider stating that it is medically advisable for her to transfer, and the transfer can be reasonably effected by the employer.

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 do the job. The employer may, but is not required to transfer another employee to accommodate the pregnant employee’s transfer request. An employer may require medical certification substantiating the need for transfer. The employee bears the burden to show that a transfer cannot be reasonably achieved.

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 equivalent rates of pay and benefits and must better accommodate the employee’s leave requirements.

PREGNANCY DISABILITY LEAVE

An employee is entitles 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. If the job ceases, an employee is entitled to a comparable position. 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.

The regulations recognize the right to take pregnancy disability leave separate and distinct from any right to take a leave of absence as a form of reasonable accommodation for a physical or mental disability.

CONTINUATION OF GROUP HEALTH COVERAGE

Beginning January 1, 2012 employers were 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 that an employee would have had if she had continued working. It should be noted that health insurance taken under family leave and medical leave under the FMLA cannot be used to satisfy the employer’s obligations to pay up to twelve weeks of health coverage under CFRA.