Starting December 30, 2012, California employers are responsible for implementing new regulations on the state’s Pregnancy Disability Leave (PDL) law.
Among the significant changes are:
- Definition of “Four Months” Entitlement – PDL is part of California’s Fair Employment and Housing Act (FEHA) , requiring employers with five or more employees to provide up to four months of disability leave to pregnant employees with no minimum length of employment required before the leave is taken. The newly revised regulations direct that “four months” means the number of days or hours the employee would work within four calendar months (17 1/3 weeks), if the leave is taken continuously, following the date the pregnancy disability leave begins.
This is important for the calculation of the “four months” for an employee who qualifies and chooses to take “intermittent leave” (that leave in intervals), returning to the job for a time and then going out again (and/or working partial days, and/or going out on an occasional basis for medical appointments). That person’s leave rights don’t expire four calendar months after the leave starts, but after she has taken the applicable number of leave days or hours calculated from a four month continuous leave period. For example, for an employee who works 20 hours a week, “four months” means 346.5 hours of leave entitlement. For an employee who normally works 48 hours a week, “four months” means 832 hours of leave entitlement.
The regulations also confirm that employees are eligible for up to four months of leave per pregnancy, not per year.
- Reasonable Accommodations – PDL is unpaid leave. While the PDL has always required employers to make reasonable accommodations for workers temporarily disabled by pregnancy that nevertheless sought to continue to work and earn a wage, the regulations did not previously offer examples of the actions considered reasonable. While determination of whether an accommodation is reasonable must always be on a case-by-case basis, the new regulations provide such examples, including: “(1) modifying work practices or policies; (2) modifying work duties; 3) modifying work schedules to permit earlier or later hours, or to permit more frequent breaks (e.g., to use the restroom); (4) providing furniture (e.g., stools or chairs) or acquiring or modifying equipment or devices; or (5) providing a reasonable amount of break time and use of a room or other location in close proximity to the employee’s work area to express breast milk in private as required by Labor Code section 1030.
- Health Benefits – The new regulations direct employers to maintain and pay coverage for an eligible female employee for the duration of the leave, “not to exceed four months over the course of a 12-month period, beginning on the date the pregnancy disability leave begins,” and “at the same level and under the same conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave.” An employer may recover from the employee the premium paid while the worker was out on PDL if a) the employee fails to return at the end of the PDL, and b) that failure to return was for a reason other than several specified circumstances, most related to that employee’s continuing health problems. See also, “Expanded Pregnancy Health Benefits Law for Most California Employees.”
- Updated Employee Notices: The new regulations require employers to post a new “Notice A” or its equivalent (for employers with five or more on payroll subject to Pregnancy Disability Leave) and “Notice B” or its equivalent (for employers with 50 or more on payroll subject to the Family and Medical Leave Act and the California Family Rights Act) to reflect the changes.
- Definition of Covered Pregnancy Conditions – The PDL provides protections for employees with temporary disabilities including pregnancy, childbirth or related medical conditions. The new regulations specify that “related medical conditions” include, but are not limited to, “lactation-related medical conditions such as mastitis; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; loss or end of pregnancy; or recovery from loss or end of pregnancy.”
- Medical Certification – Employers must now notify employees if they require workers to provide medical certification of the pregnancy, the deadline for providing such certification, what constitutes sufficient medical certification, and the consequences for failing to provide medical certification. The regulations permit an employer to use the form contained in these rules or to use its own form.
With the new regulations spanning some 28 pages, the above summaries refer to only some of the significant points. For a broader review and help on how these new rules might impact your business, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.