Continuing in this series on new California regs, this post calls out three additional areas where the pregnancy disability regulations have changed as of January 1, 2013. Last time, we talked about expanded definitions, time periods for leave, and required notices. This time, we are talking reinstatement, interplay with other leaves and reasonable accommodation. For a deeper dive, you’ll have to read the regulations yourself, which you can find here.
Strict Reinstatement Requirements:
a. Exact same position. Before, an employee returning from a PDL leave could be returned to a similar or equivalent position. Now, the returning employee must be given back her exact same position that she had before the leave. This is the rule unless the employee cannot be returned to her exact same position for reasons unrelated to the leave, like layoff, plant closure or job elimination.
b. Exact position not available? The returning employee may nonetheless be entitled to reinstatement to a comparable position virtually identical to the former one, including wages, benefits, working conditions, geographical location, and shift. If a comparable job is not available on the return date, the employer has to keep looking for 60 days and notify the employee if one becomes available. This creates a new ongoing obligation on the employer that did not exist prior to these regulations.
An employee’s PDL (disability period of up to 17.3 weeks) is separate and distinct from her leave under the California Family Rights Act (“CFRA”) (up to 12 weeks for non-pregnancy disabilities and baby-bonding). PDL and CFRA leaves run consecutively, not at the same time. If the employee takes CFRA leave for baby bonding following her PDL, her right to reinstatement is controlled by CFRA, not PDL. Under CFRA, the employee may be returned to the same or a comparable position–the stricter reinstatement rules under PDL do not apply.
TIP: Properly designate the type of leave the employee is taking to make it clear what reinstatement rules apply.
The new regs also confirm that employees who exhaust CFRA and PDL may still be eligible for additional leave under the ADA and/or California’s FEHA, as a reasonable accommodation.
The regulations also list additional ways in which a woman disabled by pregnancy may be accommodated while working, including a transfer, a place to sit and additional restroom breaks. They also remind us that a pregnancy-related disability is no different than any other disability when it comes to an employer’s obligation to engage in the good faith interactive process. Reasonable accommodation does not, however, even under the new regulations, require an employer to create a new position that does not exist, terminate another employee or violate a collective bargaining agreement. But, it may require the creation of a light duty position if that’s how the company handles other disabilities or workplace injuries.
Workplace Solutions: Employers should train their managers who make leave and reinstatement decisions to be aware of these new standards, and to keep accurate track of what type of leave the employee is using (and make sure the employee is updated as to the type of leave she is on). Advise managers that employees disabled by pregnancy should be treated no differently than other disabled employees.
Up Next: Our next blog post will focus on the companion disability regulations that kicked in at the same time as the PDL regulations. The post will address the expansion of definitions of “disability,” “regarded as disabled” and “reasonable accommodations,” clarification on essential functions, and new limitations on seeking medical information. Also, stay tuned for Cal Pecs Blog’s upcoming guest blogger – Phyllis W. Cheng, Director of the California Department of Fair Employment and Housing, who will share her insight into the regulations and their implications for employers.