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New Regulations Expand Protections Under California’s Pregnancy Disability Leave Law (“PDL”) Law

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New Regulations Expand Protections Under California’s Pregnancy Disability Leave Law (“PDL”) Law

California continues to provide protections for employees in that state that far surpass those available to employees located elsewhere in the United States, including an obligation to offer pregnancy disability leave to employees where the employer has five or more employees.  Regulations effective on December 30, 2012 clarify and, in some instances, expand the PDL protections afforded to employees under that law and include the following:

“Perceived Pregnancy” is a  New Basis for Discrimination

The  protected class of pregnant employees now includes those who are not pregnant but who suffer adverse employment actions based on the perception by employers that they are pregnant.  This concept is familiar to employers who have had to face a similar theory under the Americans With Disabilities Act, but its application in the context of pregnancy is new.

Broadened Definition of “Disabled by Pregnancy”

The regulations broaden the definition of “disabled by pregnancy” 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 new regulations have, however, made other types of conduct unlawful as well.  Specifically, employers are now prohibited from:

  • 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 4-Month Leave Period

The regulations have changed the definition of “four months” so that an eligible employee’s four month leave period now is calculated in hours rather than 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).  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”).  Furthermore, the regulations explicitly allow for electronic or email notices, rather than requiring hard-copy documents.  Finally, the regulations also contain 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.

These changes are significant in themselves, but they serve as an ample warning to employers with operations in California of the need to retain counsel with experience in dealing with that state’s unique statutory and regulatory scheme.