Hunton Employment & Labor Perspectives

California’s Fair Employment and Housing Commission recently amended its regulations to the state’s Pregnancy Disability Leave Law.  The new regulations provide expanded protections and clarifications with regard to employer obligations related to Pregnancy Disability Leave (“PDL”).  The regulations take effect on December 30, 2012.

California law provides that employers with five or more employees must provide up to four months of PDL to employees disabled by pregnancy.  Unlike leave entitlements under the federal Family Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”), there are no minimum hours worked or length of service requirements.  PDL may be taken before or after the child’s birth so long as the employee is disabled because of pregnancy or a pregnancy-related condition.  PDL leave does not run concurrently to any leave entitlement the employee may have under the CFRA. 

Revisions to the PDL regulations were approved on November 30, 2012.  A summary of the major changes is as follows:  

• Expanded definition of when an employee is “disabled by pregnancy.”  The regulations provide that an employee is “disabled by pregnancy” if she suffers from a disabling pre- or post-pregnancy condition.  The new regulations list a number of qualifying conditions – including  post-partum depression, loss or end of pregnancy, and recovery from pregnancy – but specifically state that the list is non-exclusive and illustrative only. 
• Revised definition of “four months” for purposes of leave calculation.  Although calculation of the four month period is straightforward for 40 hour per week employees, the new regulations clarify that leave entitlement for employees with part-time or variable schedules should be calculated on a pro-rata or proportional basis.  For example, if an employee works 20 hours per week, the employee is entitled to 346.5 hours of leave (20 hours per week x 17.33 weeks), which amounts to four months of the employee’s typical schedule.
• Added provisions regarding maintenance of group health benefits.  The new regulations add provisions mirroring the recently passed legislation requiring employers to maintain group health benefits for employees taking PDL.  As a reminder, the requirement to maintain group health benefits for an employee on PDL is in addition to any obligations that an employer may have to maintain such benefits under the FMLA or CFRA.
• Clarification of an employer’s responsibilities with regard to providing a reasonable accommodation.  The new regulations provide guidance with regard to an employer’s obligation to provide a reasonable accommodation to an employee as a result of her pregnancy, pregnancy-related condition(s), or child birth.  In addition, the regulations provide that the right to a reasonable accommodation under the PDL law is separate and distinct from any other accommodation rights that the employee may be entitled to following exhaustion of the leave.  The regulations also detail medical certification and documentation requirements in this regard.
• Revisions to Employee Notices.  The new regulations include revisions to Notices A and B, which provide employees with information regarding their rights and responsibilities under the PDL law and the California Family Rights Act.

Employers are advised to review the amended regulations to ensure that their company’s leave policies and practices are in compliance with the revised regulations.