In March 2012, the California Fair Employment and Housing Commission (FEHC) proposed new and amended regulations addressing employers’ obligations and employees’ rights and responsibilities regarding pregnancy under the California Fair Employment and Housing Act (FEHA).
After public comment and some revisions, the agency’s regulations became effective December 30, 2012. They can be found at Title 2, California Code of Regulations, Sections 7291.2 et seq.
Employers should become familiar with the pregnancy regulations because they make substantial changes in the areas of leave, benefits, and reinstatement. The regulations also impose a new requirement that employers provide notice to employees of their rights to take pregnancy disability leave.
The agency likely will make compliance a top priority. In addition, the Equal Employment Opportunity Commission’s (EEOC) new Strategic Enforcement Plan has made it clear that the EEOC considers pregnancy accommodation to be a prime agency concern in 2013.
Below are some of the primary issues employers need to know about the new pregnancy regulations:
Definition of “disabled by pregnancy.” The regulations expand the definition of “disabled by pregnancy” beyond being unable to perform one or more of the essential functions of the job or being unable to perform one or more such functions without undue risk to the employee, the pregnancy’s successful completion, or other factors. “Disabled by pregnancy” also includes severe morning sickness or needing to take time off for pre- or postnatal care, bed rest, and/or post-partum depression. Section 7291.2(f).
Amount of available leave. The regulations clarify that “four months leave” means time off for the number of days or hours the employee normally would work within 17.3 weeks (1/3 of one year). A full-time employee who works 40 hours a week would be entitled to 693 hours of leave (40 hours x 17.3 weeks). Section 7291.9(a)(1).
Employers should be aware, however, that some employees could be entitled to more than 693 hours of leave. If, for example, an employee generally works 48 hours a week, that same employee would be entitled to 832 hours of leave (48 hours x 17.3 weeks). Section 7291.9(a)(2)(A).
Measuring intermittent/reduced schedule leave. An employer may account for leave using the shortest period of time payroll accounts for other leave or one hour, whichever is less. Section 7291.9(a)(4).
Right to reinstatement to the same position after leave or transfer. The employer must reinstate the employee to the exact same position and the employer must guarantee reinstatement in writing if the employee asks for a written guarantee. Section 7291.10(a).
The employer is excused from reinstating the employee to the exact same position only if the employer can prove by a preponderance of the evidence that the employee would not have been employed for reasons unrelated to the leave, such as a layoff or plant closure. Section 7291.10(c)(1).
Employers should note that the new regulations eliminate a prior regulation that allowed an employer to refuse to reinstate an employee to the same position if the means of keeping the position open “would substantially undermine the employer’s ability to operate the business safely and efficiently.” This defense is no longer available.
Right of reinstatement to a comparable position after leave or transfer. Even if the employer can prove that it need not reinstate the employee to the same position, the employee may still be entitled to reinstatement to a comparable position. Section 7291.10(c)(2). A comparable position is one that is virtually identical to the employee’s previously held position, including wages, benefits, working conditions, and shift. Additionally, the position must be at the same or a “geographically proximate” worksite. Section 7291.2(j).
In order to be excused from reinstating the returning employee to a comparable position, the employer must be able to show by a preponderance of the evidence that: (1) the employer would not otherwise have offered the employee a comparable position had she not taken leave; OR (2) a position for which the employee is qualified is not available on the scheduled date of reinstatement or within 60 days thereafter. Section 7291.10(c)(2).
Reinstatement after combined pregnancy/CFRA leave. If an employee takes California Family Rights Act (CFRA) leave after pregnancy leave, CFRA controls reinstatement, and the employer must reinstate the employee to the same or comparable position. Section 7291.10(e).
Employers may have to maintain health insurance coverage for up to seven months if an employee takes pregnancy and CFRA leave. The employer must maintain health insurance coverage for the entire period of pregnancy disability leave (up to four months) under the same conditions as if the employee had not taken leave. The regulations are very clear that the employer cannot count any of the coverage continuation towards its obligations to maintain health coverage under CFRA. This means that an employer is obligated to maintain coverage for a period of up to seven months if the employee takes the maximum pregnancy disability and CFRA baby-bonding leave.
An employee who exhausts pregnancy disability leave may be entitled to more leave as a reasonable accommodation. 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 four months of pregnancy disability leave. Section 7291.14.
Transfers. An employee is entitled to a transfer to a less strenuous or hazardous position if the employee’s health care practitioner states that it is medically advisable and the employee is qualified for the position. Section 7291.8(a)(2)(A). An employer can deny the transfer only if it proves by a preponderance of the evidence that it cannot reasonably accommodate the request. Section 7291.8(b).
Reasonable accommodation of a medically-advisable transfer request does not include creating a job the employer otherwise would not have created, discharging another employee, or violating a collective bargaining agreement. Section 7291.8(a)(2)(B).
Although the regulations state that the employer need not create a job it would “not otherwise have created,” the Department of Fair Employment and Housing (DFEH) has taken the position that an employer must create a light duty job for pregnant employees if it does so for occupationally-injured employees. In other words, the DFEH asserts that an employer cannot refuse to create a light duty position for a pregnant employee even if the employer creates such positions only for occupationally-injured employees and not for employees who are otherwise disabled.
The regulations prohibit an employer from transferring an employee over her objections. Section 7291.6(a)(1)(G). The only exception is if the employee’s health care practitioner states that a reduced schedule or intermittent leave is medically advisable and the employer temporarily transfers the employee to a position that better meets the needs of the employer. Section 7291.8(c).
Other reasonable accommodation. The regulations mandate that employers also provide reasonable accommodations other than transfers and leave. Section 7291.7(a). Reasonable accommodations can include modifying work schedules, allowing more frequent restroom breaks, and/or providing stools or chairs. Section 7291.2(s). The employee is required to provide the employer with 30 days advance notice of the need for accommodation, unless it is not practicable to do so. Section 7291.17(a)(2),(3). The employer must respond to the employee within 10 calendar days (Section 7291.17(a)(5)) and must engage in the good faith interactive process to identify and implement a reasonable accommodation. Section 7291.7(b)(2)(B).
In its Initial Statement of Reasons, the FEHC emphasized that it did not include “undue hardship” as a defense to reasonable accommodation in the regulations. According to the FEHC, the legislature assumed that pregnancy accommodations would be “de minimis” and of limited duration. The FEHC also claimed that the statute “places no qualifier on an employer’s obligation to reasonably accommodate a pregnant employee.”
Employers must give advance written notice to employees of rights and responsibilities. The regulations mandate that employers give employees advance notice of their rights and responsibilities. Section 7291.16(a). The notice must include very specific information. Section 7291.16(b). Although an employer may create its own notice, the regulations also provide template notices that employers can use. The regulations provide one notice template for employers that are not covered entities under the CFRA and a separate notice template for covered employers.
Employers must distribute the notice in all of the following ways: (1) via posting in a conspicuous space (electronic posting is acceptable); (2) by giving it to an employee who notifies the employer of her pregnancy; and (3) by publishing it in the next edition of the employee handbook or, alternatively, distributing it annually (electronic distribution is acceptable). Section 7291.16(d).
The employer must provide a translated version of the notice if 10 percent or more of its workforce has a primary language other than English. Section 7291.16(d)(4).
Medical certification. An employer may require medical certification for leave, transfer, or other reasonable accommodation. Section 7291.17(b). Although an employer may develop its own form, the regulations provide a medical certification form for pregnancy-related issues that the employer may use. Section 7291.17(b)(1). The employer must give the employee at least 15 calendar days to return the form. Section 7291.17(b)(2).