Stricter California Pregnancy Disability Leave Regulations Take Effect December 30, 2012

“The Fair Employment and Housing Commission (FEHC) recently issued revised regulations that govern pregnancy disability leave (PDL) in California. The new regulations take effect December 30, 2012, and include changes that will affect employers’ pregnancy leave of absence policies. California employers with five or more employees are covered by PDL.” (Wilson Sonsini)

California employers take note: the state’s new pregnancy disability leave (PDL) regulations go into effect at the end of the month.

What has changed? Quite a bit, actually. Here are seven of the most significant revisions to the rules:

1. “Perceived pregnancy” is protected:

“Effective December 30, 2012, an employer will be held liable for any acts of discrimination based upon the perception that an employee is pregnant. This amendment expands the protected class of pregnant employees to include those who are not pregnant, but who suffer adverse employment actions based on the perception by employers that they are pregnant.” (BakerHostetler)

2. “Disabled by pregnancy” has new meaning:

“Expanding the definition of the term disabled by pregnancy to include time off for things such as postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia, post-partum depression; childbirth; loss or end of pregnancy; or recovery from childbirth, loss or end of pregnancy.” (XpertHR)

3. The leave period is calculated differently:

“The regulations now calculate the four month leave period in hours instead of days. Four months is defined as one-third of a year or 17 1/3 weeks, and a full-time employee working 40 hours a week is entitled to 693 hours of leave. Part-time employees working 20 hours per week are entitled to 346.6 hours of leave. An employee who works 48 hours per week is entitled to 832 hours of leave.” (BakerHostetler)

4. More professionals considered qualified health care providers:

“The regulations expand the definition of ‘health care provider’ to include a broader list of professionals who are authorized to provide medical certifications and advice related to PDL. For purposes of PDL, the definition of ‘health care provider’ has been expanded to include marriage and family therapists, licensed acupuncturists, licensed midwives, clinical psychologists, clinical social workers, chiropractors, and physical assistants.” (Wilson Sonsini)

5. Eligibility requirements for taking leave have been eliminated:

“Effective December 30, 2012, 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. Also, under the new regulations, the right to take pregnancy disability leave is separate and distinct from the right to take leave of absence as a reasonable accommodation under Government Code section 12940. The new Section 7219.17 sets forth the rules that apply to any request for reasonable accommodation, transfer or disability leave because of pregnancy.” (BakerHostetler)

6. Stricter rules regarding the reinstatement of employees:

“An employer that fails to reinstate an employee to a comparable position must now notify the employee of available positions for 60 days following the scheduled date of reinstatement under one of the employer’s permissible defenses. The new regulations significantly increase employers’ obligations regarding reinstatement of an employee who has been on PDL—in particular, the requirements that an employer must meet in order to justify the failure to reinstate an employee to a comparable position.” (Wilson Sonsini)

7. The rules for reasonable accommodation have been clarified:

“Clarifying the employer’s obligations to provide a reasonable accommodation or transfer when a woman is affected by pregnancy, childbirth or related medical conditions (which includes lactation-related medical conditions such as mastitis and lactation related accommodations, such as a private place to express milk).” (XpertHR)

The updates:

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