After almost two years of public comment and editing, the California Office of Administrative Law finally settled on a crop of regulations that substantially alter the way Pregnancy Disability Leaves (PDL) are administered in California.  The regulations (effective December 30, 2012) have created additional burdens for employers that many may find onerous:    

Expanded Definition:  The definition of “disabled by pregnancy” has expanded from being unable to perform one or more of the essential functions of her job, to being “unable to perform one or more of the essential functions without undue risk to the employee, the pregnancy’s successful completion, or other similar factors.” 

Additional Symptoms and Conditions:  An employee’s need to take time off for severe morning sickness, pre- or post-natal care, preeclampsia, hypertension and/or post-partum depression are also listed as conditions qualifying for leave.  The regulation’s express inclusion of these symptoms and conditions enables doctors to certify a woman as disabled by pregnancy with a lower threshold of what constitutes being “disabled,” even under California law.

“Perceived Pregnancy”:  The amendment exposes employers to liability for adverse employment actions based on the perception that the affected employee is pregnant, even if she is not.

Clarification Re “Four Months” Of Leave:  Before the regulations were implemented, employees were allowed to take up to “four months leave,” without guidance as to what that meant.  The regulations now clarify that “four months” is calculated based on the hours a pregnant employee would typically work within 17.3 weeks (1/3 of the year). 

Doing the math:  This means that a full-time employee who works 40 hours per week would be entitled to 693 hours of leave.  In practice, an employee who works less than 40 hours per week would be entitled to less time off than her full-time counterpart.  Likewise, a full-time employee who regularly works over 40 hours per week would be entitled to greater time off.

Notice:  Another major change provided in the regulations is regarding notice.  Again, the regulations place the burden on employers to be proactive even if there are no employees seeking a leave at that time.  Employers are now required to provide notice of an employee’s rights under PDL in three ways:

  1. A posting in a conspicuous place (although the poster services are scrambling to include these in their all-in-ones, a print out of the DFEH notices linked below will suffice in the meantime);
  2. A notice provided to any employee reporting a pregnancy, regardless of whether she is seeking leave at that time; and
  3. Either an update to the policy in the handbook or a yearly notice to every employee, regardless of impact.

Thankfully, the DFEH has conveniently created a notice, both for employers who are and are not covered by CFRA, which can be downloaded here and here.

Employers must also provide this notice in a translated version if 10% of the workforce at a particular worksite has a primary language other than English.  Even if not, an employer must provide a translated version to any employee it knows would not be able to understand the notice if presented in English. 

Regulations’ Impact On Employers:  Although these regulations are intended as clarifications, they impose new requirements and even create a new protected category:  perceived as being pregnant or disabled due to pregnancy.  In addition, as will be discussed in the next post, they place a larger burden on the employer to hold open the exact same job and, in the case of when the exact or comparable job does not exist, create an obligation to be on the lookout for a job to which to return the employee for an additional six months.   

Workplace Solutions:  Employers should review their internal policies and ensure they are prepared to handle their additional obligations.  Before your next employee reports being pregnant, provide guidance to managers as to the new obligations and provide them with the revised notices (links above).  Likewise, a little training on the updates and their practical impact, would be beneficial and a great way to avoid any missteps when it comes to these significantly broadened policies. 

Up Next:  Our next blog post will continue the discussion on PDL, focusing on (a) reinstatement rights, (b) how PDL interplays with other California and federal leave laws, and (c) accommodation rights of pregnant employees.  Following that, this blog series on the new FEHA Regulations will turn to discussion of the new disability regs.