California’s new Pregnancy Disability Leave (PDL) regulations issued in December 2012 had sweeping implications for employers trying to maneuver their way through the various leave issues presented by employees seeking time off due to pregnancy or related medical conditions.
The Fair Employment & Housing Commission’s new rules raise a number of questions about how much time is enough for PDL. For instance, the regulations clarify the definition of “four months leave” to mean time off for the number of days or hours the employee normally would work within a 17.3 week period (1/3 of one year). Thus, a full-time employee who works 40 hours a week would be entitled to 693 hours of leave (40 hours x 17.3 weeks). Sec. 7291.9(a)(1). However, leave managers should know that now some employees could be entitled to more than 693 hours of leave. The regulations cite the example of an employee who generally works 48 hours a week. That employee would be entitled to 832 hours of leave (48 hours x 17.3 weeks) under the new definition. Sec. 7291.9(a)(2)(A). In light of these revelations, employers can no longer treat “four months” as a one-size-fits-all leaves proposition.
The regulations also make clear that an employer may have to offer additional leave as a “reasonable accommodation” for a pregnancy-related disability even after the employee has exhausted her right to the four months of pregnancy disability leave. Sec. 7291.14. This is a significant departure from past practices as most companies simply applied a cap of four months without considering each employee’s specific needs for more time off. Thus, leave managers will now be required to analyze a pregnant employee’s need for additional leave and “interact” to determine whether more leave can be provided.
Recent California case authority has also raised interesting questions about how much pregnancy leave must be provided under California law. In Sanchez v. Swissport, Sanchez, an employee, who was disabled by a high risk pregnancy requiring bed rest in the first few months of her pregnancy, requested and received a temporary leave of absence.
Although her baby was not due to be delivered for at least seven months, after approximately 19 weeks, she had exhausted all of the leave time she was entitled to under the California Family Rights Act (CFRA) [which applies to employers with 50 or more employees] and Pregnancy Disability Leave (PDL) and she had utilized all of her accrued vacation time. Swissport terminated her employment a few months before she gave birth due to her failure to return to work. Sanchez filed suit asserting that she was fired because of her pregnancy, pregnancy-related disability, and/or requests for accommodations.
Although the PDL provides pregnancy disability leave of only four months the Court held that the FEHA’s protections were in addition to those protections under PDL and CFRA.
Absent undue hardship to the employer, the employee was entitled to a reasonable accommodation—“which may include leave of no statutorily fixed period.” Thus, although the employer had provided the employee with all statutory leave to which she was entitled, it was found liable for failure to engage in the interactive process and failure to offer additional leave as an accommodation to Plaintiff’s medical condition related to her pregnancy under the FEHA.
This case demonstrates that, even after all statutory leaves have been exhausted, there may be an obligation to engage in the interactive process in order to determine whether a reasonable accommodation should be provided. Additional time off may now be required.
Other significant aspects of the new pregnancy disability regulations include an expanded definition of “disabled by pregnancy” to include severe morning sickness and even post-partum depression. Thus, employers will be required to provide PDL for eligible employees with these symptoms. A new notice of rights and responsibilities under the law must now be posted, distributed to pregnant employees and included in the next edition of the employer’s handbook (or transmitted to employees separately on an annual basis).
Let’s not forget that “baby bonding” leave must also be provided to employees qualified to take leave under CFRA. Thus, an employee who: suffers severe morning sickness intermittently for a total of two weeks’ time-off; must go on bed rest for six weeks due to a high risk pregnancy;takes two months’ time off after a C-Section delivery and then “bonds” with her baby for 12 weeks; will, in essence, be absent from work for a period of seven months. In addition, insurance coverage must now be provided during this entire period of time.
Employers must be cognizant of these new laws as they process employee requests for leave in light of pregnancy and related issues. If you have questions regarding this difficult subject please contact one of our attorneys for specific advice.