California Adopts New Regulations for Dealing with Pregnancy in the Workplace

California employers with five or more employees must make pregnancy disability leave (PDL) available to employees. The new regulations, effective December 30, 2012, clarify and, in some instances, expand the PDL protections afforded to employees and include the following:

“Perceived Pregnancy” is a New Basis for Discrimination

The protected class of pregnant employees will now include those who are not pregnant but who suffer adverse employment actions based on the perception by employers that they are pregnant. An employer will be held liable for acts of discrimination based upon the perception that an employee is pregnant. 

Broadened Definition of “Disabled by Pregnancy”

The definition of “disabled by pregnancy” has been broadened to include time off for disabilities previously unrecognized, such as postnatal care, bed rest, gestational diabetes and hypertension. Also included are post-partum depression; childbirth; loss, or end of pregnancy; and/or recovery from childbirth.

New Accommodation and Reinstatement Rights

The new regulations expand an employer’s reasonable accommodation obligations to include (1) modifying work schedules to provide earlier or later hours, (2) providing stools, and/or (3) providing additional break time for lactation or trips to the rest room.

As always, an employee on pregnancy leave generally has a right to reinstatement to the same position, or a comparable position, subject to employer defenses. The following is a list of other unlawful conduct for which employers can now be held liable:

Transferring an employee affected by pregnancy over her objection to another position, except that an employer may transfer an employee for its legitimate operational needs unrelated to the employee's pregnancy or perceived pregnancy;

Requiring an employee to take a leave of absence because of pregnancy or perceived pregnancy when the employee has not requested leave;

Retaliating, discharging or otherwise discriminating against an applicant or employee because she has opposed employment practices forbidden by law.

New Calculation of the Four-Month Leave Period

A change to the definition of “four months” so as to calculate an eligible employee’s four-month leave period in hours instead of days. Four months is defined as one-third of a year (or 17 1/3 weeks). Thus, a full-time employee who works 40 hours a week would be entitled to 693 hours of leave (40 X 17.33). Similarly, a part-time employee who works 20 hours per week would be entitled to 346.6 hours of leave (20 X 17.33). Also, employees are now eligible for up to four months of PDL per pregnancy, not per year.

New Forms and Notices

The new regulations include new certification forms and mandatory changes to Notices “A” and “B,” which provide information for employees about their rights and responsibilities under pregnancy disability leave (Notice “A”) and the California Family Rights Act (Notice “B”).

The regulations explicitly allow for electronic or email notices.

There is a new requirement that employers give oral or written notice to nonproficient English speakers and written notice translated into any language spoken by 10% of the workforce at a particular workplace.

The regulations require all employers to update their handbooks or, if the employer has no handbook, to distribute notices to employees at least annually and also as soon as the employer learns that employee is pregnant or requests accommodation.

For more information, please contact the author of this alert, Laura P. Worsinger at 213 457-1744, or your Dykema relationship attorney. 

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