New CA Pregnancy Regulations FAQ

           We have been getting a lot of questions recently about the new CA pregnancy regulations which took effect on January 1st of this year. While most of the rules stayed the same, the new regulations did add some additional compliance burdens which covered employers (those with 5+ employees) should know about. Below is an FAQ addressing the key changes. As always, we suggest that you review these matters with your contact at the firm if you have any questions.

Q:       Is the maximum leave still 4 months?

A:       Yes...and no. Most employers interpreted the 4 month leave rule as the equivalent of 16 weeks. The state has clarified that in most settings, the 4 months will actually be 17 1/3 weeks. In addition, the amendments include a change in how the state mandated "four month" maximum duration of pregnancy disability leave is calculated.  Under the new regulations, this period is defined as the number of days the employee would normally work within four calendar months (one-third of a year equaling 17-1/3 weeks), if the leave is taken continuously following the date the pregnancy disability leave commences. Therefore, for a full-time employee who works 40 hours a week, "four months" equals 693 hours (17.3 x 40 = 693). But, if an employee's schedule varies from month to month, a monthly average of the hours worked over the four months prior to the beginning of the leave will be used for calculating the employee's normal work month. By the same token, where an employee typically works more than 40 hours per week, then this figure is even higher.

When an employee seeks intermittent leave or a reduced work schedule, the amendments also provide that the employer may calculate the "four month" period much like the DOL regulations under FMLA, i,e., using an increment no greater than the shortest period of time the employer uses to account for use of other forms of leave, but not greater than one hour. For example, if an employer accounts for sick leave in 30-minute increments and vacation time in one-hour increments, the employer MUST account for intermittent pregnancy disability leave in increments of 30 minutes or less. If an employer accounts for other forms of leave in two-hour increments, the employer must account for intermittent pregnancy disability leave in increments no greater than one hour.

Q:       Is there any change to the posting and notice requirements?

A:         Yes. The new regulations require that employers give advance written notice to employees of their rights and responsibilities when taking pregnancy disability leave. To that end, the written notice that employers are required to post and give to employees needing this leave has been updated.  There are two different posters, depending upon how many employees you have. There is a version of the Posting ("Notice A") for smaller employers with less than 50 employees, and a new "Notice B" for employers with 50+ employees.  These new postings and notices are required as of December 30, 2012. The Notice A posting is available here and the Notice B posting is available here.  Employers may also create their own postings provided they contain all the information required by the new regulations.

Employers must distribute written notice in 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; or (3) by publishing it in the next edition of the employee handbook or, alternatively, distributing it annually (electronic distribution is acceptable).

And something else which is new: you the MUST provide a translated version of the notice if 10 percent or more of the workforce has a primary language other than English.

Q:      Can pregnant employees use "pregnancy" leave before they give birth?

A:      Yes. This is not new. But, the new regulations clarify (some say expand) the times when a pregnant employee may tap into the leave bank available under the law. To that end, the definition of when a woman is "disabled by pregnancy" has been expanded to provide more circumstances when leave must be offered.

The new regulations provide that "[a] woman is "disabled by pregnancy" if, in the opinion of her health care provider, she is unable because of pregnancy to perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy's successful completion, or to other persons.

Notably, an employee also may be considered to be "disabled by pregnancy" if, in the opinion of her health care provider, she is suffering from severe "morning sickness" or where the employee needs to take time off for any of the following medical conditions associated with pregnancy: (1) prenatal or postnatal care; (2) bed rest; (3) gestational diabetes; (4) pregnancy-induced hypertension; (5) preeclampsia; (6) post-partum depression; (7) childbirth; (8) loss or end of pregnancy (the regulations don't say so, but this "end of pregnancy" language could mean an abortion, according to some commentators); and (9) recovery from childbirth.  The regulations go on to say that the preceding list of conditions is intended to be non-exclusive and illustrative only.   In other words, the time off may indeed be "pregnancy related" even if the condition is not one of the 9 mentioned above where a physician or other medical care provider says so.

Q:       What else might be covered by e regulations?

A:       Perceived pregnancy. Like other disability protections under the CA disability discrimination law, the new regulations clarify that adverse treatment on account of "perceived pregnancy," is protected under California law. The term "perceived pregnancy" is defined as "being regarded or treated by an employer or other covered entity as being pregnant or having a related medical condition." And, the term "related medical condition" is defined as "any medically recognized physical or mental condition related to pregnancy, childbirth or recovery from pregnancy or childbirth. This term includes, but is not limited to, lactation-related medical conditions such as mastitis; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; loss or end of pregnancy; or recovery from loss or end of pregnancy."

Q:      If I allow an employee the full 4 months off, am I doing all that I must do?

A:      Not necessarily. First of all, the time off under the CA pregnancy rules (as opposed to "family leave") MUST be for a pregnancy related "disability", as certified by the employee's medical provider. If so, the new regulations and a recent court case clarify that the 4 month rule is only a minimum, and that much more time off could be required in certain circumstances.

To that end, the new regulations state that the right to take pregnancy disability leave is separate and distinct from the right to take a leave of absence as a reasonable accommodation under the disability discrimination provisions of the Fair Employment and Housing Act ("FEHA").  Therefore, and most significantly, the new regulations make clear that an employer may have to offer additional leave beyond the four months specified in the pregnancy leave statute as a so-called "reasonable accommodation" for a pregnancy-related disability if medically necessary.

And, earlier this year, a California court interpreting the CA pregnancy leave rule said just that in a case where the employee was confined to bed rest due to a high risk pregnancy and exhausted her 4 months before the baby was born. According to that court, the 4 month leave in the pregnancy statute is just the beginning. If an employee is still disabled, then you must reasonably accommodate that employee, just as you would with any other disabled employee.

Q:      Do I have to make any adjustments to the work before the employee goes out on pregnancy leave?

A:      Yes, if the employee asks for that. The new regulations clarify an employer's responsibilities regarding reasonable accommodation or transfer of employees affected by pregnancy, childbirth or related medical conditions. Significantly, there is no eligibility requirement, such as minimum hours worked or length of service, before an employee affected or disabled by pregnancy is eligible for reasonable accommodation. The rules that apply to any request for reasonable accommodation, transfer or disability leave because of pregnancy are set forth at §7291.17 of the regulations. In general, you must attempt to temporarily transfer the employee to another position if her doctor says so and such a position exists.

Q:       Must I hold the pregnant employee's job open? 

A:       Yes, in most cases. As before, employers are required to reinstate the employee 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. An 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. Notably, the new regulations toughen the burden on employers by eliminating a prior regulation that allowed an employer to refuse reinstatement 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.

Q:        Must I maintain the pregnant employee's health coverage while she is out on leave?

A:         Yes. Under the new regulations, during a pregnancy disability leave of absence, the employer must maintain health insurance coverage for the employee under the same conditions as if the employee had not taken leave. (i.e., the Employer must continue to pay its portion of the health insurance premium during a pregnancy leave regardless of whether the employee otherwise qualifies for FMLA/CFRA leave) As such, when the regulations are read in conjunction with the CA family leave law (which offers an additional 12 weeks off for baby bonding to employees who qualify for CA family leave), employers may have to maintain health insurance coverage for up to seven months. This period could be even longer if the employee needs an extended pregnancy leave as described above before any baby bonding leave is taken under the CA family leave law.

Q:        May I still require a medical certification?

A:        Yes. As before, employers may require written medical certification as a condition of granting reasonable accommodation, transfer, or pregnancy disability leave.  However, the new regulations require employers to notify the employee of: (1) the need to provide medical certification; (2) the deadline for providing certification; (3) what constitutes sufficient medical certification; and (4) the consequences for failing to provide medical certification.  Employers also must advise an employee if the medical certification is incomplete and provide a reasonable opportunity to cure any such deficiency.

Notably, the new regulations include an approved medical certification form for this purpose. Alternatively, employers may develop their own form, so long as it contains all of the necessary information. The new regulations are available here.

What Employers Should Do 

• Educate managers and employees alike on the new pregnancy regulations, especially the regulations concerning harassment and the need to accommodate employees with job transfers etc.;

• Review and update work rules, employee handbooks or operating manuals which include anti-discrimination policies and procedures;

•  Utilize the approved form at the end of the new regulations, or have counsel create a new form, if you wish to require written medical certification as a condition of granting reasonable accommodation, transfer, or pregnancy disability leave; 

• Post the DFEH notice in a conspicuous place and publish it in the next edition of your employee handbook or, alternatively, distribute it annually to employees.

For more information, call your contact at the firm at (818) 508-3700.