Hunton Employment & Labor Perspectives

What should an employer do when a pregnant employee has used all of her allotted leave under CFRA (the California Family Rights Act) and PDLL (Pregnancy Disability Leave Law) but is still not yet able to return to work? Following the appellate court’s recent decision in Sanchez v. Swissport, Inc., No. B237761 (Cal. Ct. App. Feb. 21, 2013), the employer may be required to grant even more leave.

Plaintiff Sanchez was employed by Swissport, an airport ground services company, as a cleaning agent. In February 2009, she was diagnosed with a high-risk pregnancy requiring bedrest. Sanchez applied for and received 19 weeks of leave under CFRA and PDLL, but when she was still unable to return to work in July 2009 at the end of that leave, Swissport terminated her employment.

 Sanchez filed suit, alleging various causes of action under FEHA (the California Fair Employment and Housing Act), predicated primarily on discrimination (sex, pregnancy, and pregnancy-related disability) and failure to accommodate and engage in a timely, good faith interactive process. She argued that she would have been able to return to work shortly after delivery in October 2009, so it would be a reasonable accommodation to provide extended leave until that time. In the complaint, she alleged that the requested reasonable accommodation would neither create an undue hardship upon Swissport nor adversely impact the operation of Swissport’s business.

Swissport demurred, arguing that it had provided all of the leave mandated by CFRA and PDLL, thus fulfilling its obligations under the FEHA. It contended that the language of the PDLL, which is itself contained within the FEHA, specifically provides that a pregnancy-disabled employee is allowed to take leave “not to exceed four months and thereafter return to work.” Ca. Gov’t Code § 12945, subd. (a)(1). Because Swissport had provided all the leave required by the statute, it argued, Sanchez’s claims should be dismissed. The superior court agreed and sustained the demurrer, finding that “at the time of her termination in July 2009, plaintiff was unable to perform her essential job functions at all. . . .  [S]ection 1940 subdivision [(a)] does not prohibit an employer from discharging an employee who is unable to perform her essential duties even with accommodation.”

The Los Angeles Court of Appeals (Second District) reversed in a published decision, holding as a matter of first impression that exhaustion of all pregnancy disability leave does not preclude a claim under the FEHA. Rather, the court noted, the plain language of the PDLL “makes clear that its remedies augment, rather than supplant, those set forth elsewhere in the FEHA.” See § 12945, subd. (a). Accordingly, because the PDLL by its own terms may not be construed “in any way to diminish” the coverage of a pregnancy-related medical condition under the FEHA, § 12945, subd. (b), analysis of a plaintiff’s FEHA claims proceeds independently of the PDLL.

Moreover, the court cited established caselaw that extended leave may constitute a reasonable accommodation, particularly when the disability and need for accommodation will be finite. The court noted that Swissport may well want to challenge Sanchez’s allegation that her leave would impose no undue hardship. But at the demurrer stage, the allegations in the complaint are assumed to be true and thus were sufficient to state a claim. The court further held that, just as failure to provide additional leave could support a claim for failure to make a reasonable accommodation, so too did Swissport’s failure to discuss Sanchez’s requested accommodations give rise to a claim for failure to engage in the interactive process as required by statute.

Employers should be alert that extended pregnancy leave and interactive discussion about the same might be a new expectation of the California courts, even after the express statutory leave is exhausted.