Effective use of the California Family Rights Act & Pregnancy Disability Leave laws

Pregnancy Disability Leave applies during and after pregnancy, under limited circumstances

2016 April

Discrimination against pregnant women is sex discrimination. California Government Code section 12926 states that “[s]ex includes, but is not limited to, the following: (a.) Pregnancy or medical conditions relating to pregnancy; (b.) Childbirth or medical conditions related to childbirth; (c.) Breastfeeding or medical conditions related to breastfeeding.”

Government Code section 12945 is the Pregnancy Disability Leave (PDL). It is comprehensive and is to be read broadly, and “… not be construed to affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth .…”

This statute makes it unlawful for employers, unless based upon a bona fide occupational qualification, “… to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work.” (Id., § 12945, subd. (a)(1).) Subdivision (a)(2) of this section makes it unlawful for an employer “… to refuse to maintain and pay for coverage for an eligible female employee who takes leave” under a qualifying group health plan for the duration of the leave, not to exceed four months over the course of a 12-month period beginning on the date the leave begins. This subsection also provides for circumstances under which the employer can recover the amounts paid on the female employee’s behalf.

Section 12945, subdivision (a)(3)(A) makes it unlawful for an employer “to refuse to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if she so requests, with the advice of her health care provider.”

Subdivision (a)(3)(B) makes it unlawful for an employer “… who has a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of temporarily disabled employees to less strenuous or hazardous positions for the duration of the disability to refuse to transfer a pregnant employee who so requests.”

Subdivision (a)(3)(C) makes it unlawful for an employer “… to refuse to temporarily transfer a pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where that transfer can be reasonably accommodated.”

And section 12945, subdivision (a)(4) makes it unlawful for an employer “… to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.”

In 2012 the Department of Fair Employment and Housing (“DFEH”) implemented new regulations interpreting the PDL and reasonable accommodation under the Fair Employment and Housing Act (“FEHA”), (Gov. Code, § 12900, et seq.). When combined, these regulations have the effect of eliminating any cap on a pregnancy/disability leave employers have to provide under the PDL, the FEHA and the California Family Rights Act (“CFRA”), when combined.

Useful regulation titles

The PDL regulations are found at 2 CCR §§ 11035-11051. These are extensive and explicit, and should be consulted whenever a potential pregnancy discrimination case comes in the door.  Their titles are useful to reference here so that you have an idea about what is covered:

• 2 CCR § 11035 – “Definitions”
• 2 CCR § 11036 – “Prohibition Against Harassment”
• 2 CCR § 11037 – “No Eligibility Requirements”
• 2 CCR § 11038 – “Responsibilities of Covered Entities Other than Employers”
• 2 CCR § 11039 – “Responsibilities of Employers”
• 2 CCR § 11040 – “Reasonable Accommodation”
• 2CCR § 11041 – “Transfer”
• 2 CCR § 11042 – “Pregnancy Disability Leave”
• 2 CCR § 11043 – “Right to Reinstatement from Pregnancy Disability Leave”
• 2 CCR § 11044 – “Terms of Pregnancy Disability Leave”
• 2 CCR § 11045 – “Relationship Between Pregnancy Leave and FMLA Leave”
• 2 CCR § 11046 – “Relationship Between CFRA and Pregnancy Leaves”
• 2 CCR § 11047 – “Relationship Between Pregnancy Disability Leave and Leave of Absence as Reasonable Accommodation for Physical or Mental Disability – Separate and Distinct Rights”
• 2 CCR § 11049 – “Employer Notice to Employees of Rights and Obligations for Reasonable Accommodation, To Transfer and to Take Pregnancy Disability Leave”
• 2 CCR § 11050 – “Employee Requests for Reasonable Accommodation, Transfer or Pregnancy Disability Leave: Advance Notice; Medical Certification; Employer Response”
• 2 CCR § 11051 – “Employer Notices”

Four months leave

The employee has a right to have up to four months, i.e., 17 1/3 weeks off, for pregnancy, childbirth or any related medical condition. There is no eligibility requirement, like found in the CFRA or FMLA, that the employee have worked a certain number of hours or length of time before she is entitled to the protection of the PDL. If the employer has at least five employees and an employee is affected or disabled by pregnancy, she is entitled to the PDL’s protections. (2 CCR § 11037.)

During her pregnancy disability leave, the employer is not required to pay the employee unless the employer pays for other temporary disability leaves for similarly situated employees. (2 CCR § 11044(a).) The employer may require the employee to use accrued sick leave during her pregnancy disability leave. (2 CCR § 11044(b).) The employee may elect to use her sick leave, vacation time or other accrued time off for compensation during her leave. (2 CCR § 11044(b)(1) & (2).)

The pregnancy disability leave may also be a leave under FMLA if the employee is eligible for FMLA and if the employer gives the employee notice that it is counting her leave time toward her FMLA guaranteed 12-week leave entitlement. (2 CCR § 11045.)

The employee must be returned to her actual job and the employer must provide a written guarantee of reinstatement if the employee demands one. (2 CCR § 11043(a).) If the position was eliminated and would have been eliminated regardless of whether the employee took a pregnancy disability leave, then the employee must be returned to a comparable position. (2 CCR § 11043(c).) A refusal to reinstate the employee to a comparable position is only justified if the employer proves by a preponderance of the evidence that (1) it would not have offered a comparable position to the employee if she would have been continuously working during the leave period, or (2) there is no comparable position available. (2 CCR 11043(c)(2)(A) & (B).)

After the end of a pregnancy disability leave, the employee may remain on some form of disability leave if she qualifies. If so, her entitlement to leave is analyzed under the CFRA, FMLA and FEHA (2 CCR § 11043(d) & (e).)

To recap, the PDL law applies during the employee’s pregnancy and in limited circumstances afterwards (medical conditions related to childbirth and breastfeeding or medical conditions related to breastfeeding). The PDL guarantees up to 4 months off with the right to reinstatement or placement in a comparable position, unless the job was eliminated for reasons unrelated to the female employee’s pregnancy disability leave.

California Family Rights Act

The right to leave under the PDL law is separate and distinct from the right to leave under the California Family Rights Act (2 CCR § 11046(a).). The CFRA is found at Gov. Code, § 12945.2, and it prohibits employers from refusing “… to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. (Gov. Code, § 12945.2, subd. (a).) However, employers who employ fewer than 50 employees within 75 miles of the worksite where the affected employee works are exempted. (Gov. Code, § 12945.2(b))

“Family care and medical leave” are defined as any of the following:

(A) Leave for reason of the birth of a child of the employee, the placement of a child with an employee in connection with the adoption or foster care of the child by the employee, or the serious health condition of a child of the employee.

(B) Leave to care for a parent or a spouse who has a serious health condition.

(C) Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.” (Gov. Code, § 12945.2(c)(3)(A)-(C).)

“Serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves either of the following: (A) Inpatient care in a hospital, hospice, or residential health care facility. (B) Continuing treatment or continuing supervision by a health care provider.” (Ibid.)

Thus, the CFRA exempts “leave taken for disability on account of pregnancy, childbirth, or related medical conditions” and thereby makes it clear that the 12 weeks of protected leave under the CFRA are separate from the 4 months of leave provided under the PDL. Stated differently, pregnancy disability leave cannot count toward an employee’s CFRA 12-week leave. An employee who must take the entire 4 months of leave under the PDL law, or 17 1/3 weeks, is also entitled to another 12 weeks of job-protected leave if she qualifies under the CFRA.

Under the PDL law and CFRA, a pregnant employee who must take all 17 1/3 weeks of PDL may also take another 12 weeks of leave after she gives birth, to bond with her baby, for a total of 29 1/3 weeks off. During that entire time, her job is protected.

Additionally, if a pregnant woman has used four months of pregnancy disability leave before the birth of her child, “… and her health care provider determines that a continuation of the leave is medically necessary, an employer may, as a reasonable accommodation, allow the employee to utilize CFRA leave prior to the birth of her child. No employer shall, however, be required to provide more CFRA leave than the amount to which the employee is otherwise entitled under CFRA.” (2 CCR § 11046(c)(2).)

FEHA & reasonable accommodation

Assume the full 29 1/3 weeks of protected leave have been used by a female employee, but she still needs to remain out on disability leave because of a qualifying disability. Does the employer have to accommodate her? Does it have to protect her job? Yes, unless it would be an undue hardship to accommodate the leave. (Gov. Code, § 12940, et sq.; 2 CCR § 11068.)

2 CCR § 11068(c) provides:

Paid or unpaid leaves of absence. When the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence or extending a leave provided by the CRFA, the FMLA, other leave laws, or an employer’s leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer. … An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation.

The employer should be required to engage in the interactive process (2 CCR § 11069) and accommodate the employee unless doing so would constitute an undue hardship.