Just when we all thought we had a handle on the new laws for 2013, the Office of Administrative Law issued new Pregnancy Disability Leave regulations that will impact every employer in California with 5 or more employees.
The purpose of regulations is to interpret the FEHA, but these regulations seem to expand existing law in a several significant ways:
1. The definition of “disabled by pregnancy” has been broadened to include several specific conditions, such as severe morning sickness (e.g. Princess Kate), prenatal or postnatal care, bed rest, post-partum depression, and loss or end of pregnancy (among other conditions).
2. The concept of reinstatement has been clarified so that a woman must be returned to a position “virtually identical” to the position she held prior to any reasonable accommodation, transfer or disability leave.
3. The four months of disability is now defined as the number of days the employee would normally work within four calendar months (17.33 weeks). Examples in the regulations get very granular; for example, a woman who typically works 20 hours per week would be entitled to 346.5 hours of PDL.
4. PDL applies per pregnancy, not per year (e.g. Jessica Simpson).
5. Reasonable accommodation for pregnancy and related medical issues is expanded to include specific types of accommodations such as modifying work schedules to provide earlier or later hours, providing stools, and providing additional break time for lactation or trips to the rest room.
6. Females are also protected from discrimination on the basis of perceived pregnancy. Presumably this applies to more than just weight gain!
7. One sleeper provision with big potential impact is that the time an employer maintains and pays for health coverage during a PDL is not duplicative of the time required to maintain health coverage under the CFRA for baby bonding. Sure seems to mean that pregnant women in California will now get up to 7 months of paid health care coverage instead of 4.
8. There is a new notice that presumably will be included in the all-in-one posters for 2013.
9. There is a new medical certification form that employers may use that provides for more specific information about the requested accommodation.
What are your action items? (1) Review your handbooks and update PDL provisions for 2013; (2) make sure the new PDL notice is on your 2013 posters; (3) consider using the updated medical certification form; and (4) if you administer pregnancy leaves for your company, either review the regulations in detail or discuss them with your counsel. Make sure you understand the nuances of how rights for pregnant women in California have expanded for the new year.