The Fair Employment and Housing Commission (FEHC) adopted amendments to the Fair Employment and Housing Act’s pregnancy disability leave (PDL) regulations that became effective December 30, 2012. As of January 1, 2013, FEHC has been replaced with the Fair Employment and Housing Council.
According to FEHC’s initial statement of reasons, the amendments are intended to provide additional clarification and guidance to employers, particularly as to recent amendments to the PDL regulations in 1999, 2004 and 2011, and to comport with certain provisions of the federal Family and Medical Leave Act of 1993 and its implementing regulations.
Some of the key changes to the PDL regulations include the following:
- Expanded Definition of Reasonable Accommodation. Employers must provide an employee a reasonable accommodation if the employee’s request is based on the advice of her health-care provider that the accommodation is “medically advisable.” This standard is different than the “medically necessary” standard under the California Family Rights Act (CFRA). Examples of reasonable accommodations are listed, including, modifying work policies, duties and schedules. FEHC rejected including an “undue hardship” defense in the definition because it found the Legislature contemplated that the types of accommodations required by pregnancy would be de minimus or for short duration.
- Expanded Definition of Pregnancy-Related Conditions. The definition of “related medical condition” provides specific nonexhaustive examples, such as stillbirth, post-partum depression, severe morning sickness, postnatal care and lactation.
- Length and Calculation of PDL. The amendments define “four months” as 17.3 weeks or 122 days. Intermittent leave may be accounted for in the same increments the employer uses to account for other forms of leave, provided that the increments are no greater than one hour. In addition, employees are now eligible for four months of PDL per pregnancy, not per year. In contrast to leave under the CFRA, there are no eligibility requirements, such as minimum hours worked, for PDL.
- Reinstatement Rights. An employer may still deny reinstatement on the ground that the employee would not otherwise have been employed in the same position for legitimate business reasons unrelated to PDL, such as a layoff or plant closure. However, an employer may no longer deny reinstatement because holding the job open would substantially undermine the employer’s ability to operate its business safely and efficiently. If an employee’s position has been eliminated, the employer has an affirmative duty to notify the employee of comparable positions. A position is now considered “available” if there is a position open within 60 calendar days (changed from 10 working days) of the employee’s scheduled reinstatement date.
- Updated Notices and Medical Certification Form. The template notices have been revised to provide additional information regarding an employer’s obligations regarding leave, transfer and reasonable accommodation, and to provide examples of medical conditions covered by pregnancy, childbirth and related medical conditions. A new medical certification form is now available at 2 CCR 7291.17(e).