PREGNANT EMPLOYEES, PREGNANCY DISCRIMINATION, PREGNANCY DISABILITY LEAVE
Under California Government Code section 12945, it is unlawful for an employer to refuse to allow a female disabled by pregnancy, childbirth, or a related medical condition to take a leave for a “reasonable period” of time not to exceed four months and thereafter return to work. This is also known as the Pregnancy Disability Leave Law (PDLL). The regulations implementing the PDLL provide, in pertinent part, that “all employers must provide a leave of up to four months, as needed, for the period(s) of time an employee is actually disabled because of pregnancy, even if an employer has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees.”
The employee is also entitled to use any accrued vacation leave during that period of time. This “reasonable period” of time off may run concurrently with an employee’s 12 weeks of allowed leave under the federal Family and Medical Leave Act (FMLA). The FMLA entitles female employees to take twelve workweeks of unpaid leave in a 12-month period for the birth of a child and to care for the newborn child within one year of birth unpaid.
However, this time period of unpaid leave does not run simultaneously with an employee’s right to take parental leave under the California Family Rights Act (CFRA). Unpaid leave for pregnancy-related disability is not covered by CFRA. Under CFRA, an employee who uses all four months of pregnancy disability leave is still entitled to 12 weeks of leave for parenting even after the child is born.
In the recent case of Sanchez v. Swissport, the California Court of Appeals, held that an employee who has used up her four months of pregnancy disability leave may be entitled to yet more time off, as a reasonable accommodation for a disability related to pregnancy. In the Sanchez case, the employee had a very high-risk pregnancy and was put on bed rest almost eight months before her due date. After she used up her four months of pregnancy disability leave, she was still months away from giving birth and finally getting out of bed. Ms. Sanchez was then terminated by her employer, since she could not return to work after exhausting her pregnancy disability leave and all of her accrued time off.
Ms. Sanchez filed suit against her employer claiming that she was fired because of her pregnancy and that she should have been given additional time off as a reasonable accommodation for her disability. The trial court found in favor of employer. However, the Court of Appeal reversed the trial court’s ruling and held that her claims were not defeated by the fact that her employer gave Sanchez the full four months of pregnancy disability leave as required by law. The Court of Appeals further held that the right to pregnancy disability leave and the right to a reasonable accommodation are distinct, since fulfilling one right does not necessarily satisfy the other.
Although the Court in Sanchez did not make any final determinations on whether Ms. Sanchez was entitled to additional leave, it held that she “may be entitled to leave” and that she should have the opportunity to present facts that would support claims. Even though Ms. Sanchez would have the opportunity, her employer will also have this opportunity to argue as to the contrary. The employer could argue that allowing her to take additional time off would pose an undue hardship or that such accommodation would not be “reasonable” under the circumstances.
The reason for this unexpected ruling was due to the recent changes in the Fair Employment and Housing Act (FEHA). Prior to the holding in case on December 30, 2012, the California’s Fair Employment and Housing Commission (FEHC) amended its pregnancy discrimination regulations to address this issue. Under the new FEHA rules, an employee who has used up her four months of pregnancy disability leave may yet be entitled to additional leave as a reasonable accommodation for a disability, whether or not that disability is related to her pregnancy.
The new regulations set by the FEHC also clarify the amount of leave that a disabled pregnant female make take off and explains how time used is to be counted. The new regulations provide that pregnant employees are eligible for up to four months of pregnancy disability leave per pregnancy, not four months per year (as stated by the old rules). The definition of four months is now to be counted down to the hour for purposes of calculating intermittent leave. Leave must also be accounted for in the smallest increment offered for any other type of leave. Conversely, if the smallest increment the employer uses is 30 minutes, then the leave entitlement can only be reduced by 1.5 hours.
The new regulations set by the FEHC also add a “perceived pregnancy” definition. Based on this new definition, an employer cannot refuse to hire an applicant because of pregnancy or because of her “perceived pregnancy” if the employer has reason to believe the applicant is pregnant. However, an employee is not entitled to a leave or reasonable accommodation because the employer perceived her to be pregnant when she was not really pregnant.
Until new case law supersedes the Sanchez ruling, California employers must allow a pregnant employee to take time off even after four months of pregnancy disability leave plus three months of CFRA leave following childbirth for parenting purposes.