Thanks to the Fair Employment and Housing Commission and the vital contribution it received from the California Employment Lawyers Association, California has implemented landmark regulations protecting employment rights of pregnant workers. These regulations have been updated to be even more far-reaching, with broad definitions of disability and reasonable accommodation rights.
No Eligibility Requirements for Reasonable Accommodation, Transfer, or Pregnancy Disability Leave:
The new regulations make clear that there is no eligibility requirement before an employee is eligible for a reasonable accommodation, transfer, or Pregnancy Disability Leave under FEHA. This means that the employer cannot require minimum hours worked or a certain length of service before granting accommodation, transfer, or disability leave.
Providing Transfer to a Different Position:
If a pregnant worker is transferred to another less strenuous or hazardous position based on the advice of her health care provider, the new position must have the same pay and benefits, but not necessarily the same duties.
Reinstatement Rights After Pregnancy Disability Leave:
A woman returning from Pregnancy Disability Leave must be returned to her original position, unless the position was eliminated as part of a mass company lay off. Even in the case of a lay off, the employer must offer the employee any comparable job that is available within 60 days, for which the employee is qualified. This requirement is part of the employers affirmative duty to provide notice of open positions to the employee.
Continuing Group Health Coverage:
Employers are also now required to provide group health coverage for the entire duration of the woman’s pregnancy disability leave (up to four months)
New and Improved Definitions
“Disabled by Pregnancy”: The new regulations place the determination of whether a woman is “disabled by pregnancy” squarely in the opinion of the woman’s health care provider. For example, a woman will be considered “disabled by pregnancy” if her health care provider finds that the employee is unable because of pregnancy to perform one or more of the essential functions of her job, is suffering from severe morning sickness, or needs time off for pre/postnatal care, bed rest, gestational diabetes, post-partum depression, childbirth, loss or end of pregnancy, or recovery from childbirth.
“Reasonable Accommodation”: The new regulations define “reasonable accommodation” as one that is “effective in enabling an employee to perform the essential functions of a job” and may include modifying work practices, policies, duties, schedules, permitting more frequent rest breaks, providing furniture such as stools or chairs, or providing a private room to express breast milk. Notably, employers cannot claim “undue hardship” as a defense to a woman’s request for reasonable accommodation. In other words, when a pregnant worker’s pregnancy related disability necessitates a reasonable accommodation, the employer must accommodate and cannot avoid providing a reasonable accommodation even if it allegedly causes the company “significant difficulty or expense.”
“Related Medical Condition”: The Fair Employment and Housing Act (FEHA) defines “sex” to include pregnancy, childbirth or breastfeeding or medical conditions related to pregnancy, childbirth or breast feeding. The new regulations provide many examples of “related medical conditions,” including gestational diabetes, lactation-related conditions such as mastitis, pregnancy-induced hypertension, loss or end of pregnancy and recovery from such, or post-partum depression.
“Four Months”: A woman can take pregnancy disability leave up to four months when she is disabled by pregnancy, childbirth, or a related medical condition. “Four months” means the period of time the woman would have worked in one-third of a year, regardless of what month you start.
“Health Care Provider”: The definition of health care provider under the new regulations now includes marriage and family therapists and acupuncturists.
If you or a loved one is in need of a pregnancy disability lawyer who is well-versed in the applicable law, please contact an attorney at Workplace Justice Advocates, PLC.
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