We already know that California law for pregnant employees is much more generous than other states. Pregnant women here can get up to seven months of protected time off, with insurance benefits and reinstatement; that is up to four months off for pregnancy disability leave (PDL) in addition to twelve weeks off for baby bonding under the CFRA.

But what happens if a woman is disabled by pregnancy and needs more than four months off? What if she is put on bed rest early in her pregnancy and uses her PDL pre-birth? The regulations still indicate that an employer “may” advance CFRA baby bonding leave pre-birth, so doesn’t that mean it is optional? Or what if she is not eligible for CFRA leave at all (perhaps she has not worked for a year or your company does not employ 50 people); are you safe to terminate her after four months of PDL?

One would think the answer to all of these questions would be YES, but alas, this is California after all. A recent California Court of Appeal case (Sanchez v. Swissport) answers a big bold NO to all of these questions, and holds that four months of leave may not be enough. Rather, the employer has a duty to engage in the interactive process under the FEHA, and may need to provide additional time off for a pregnant employee as a reasonable accommodation.

Notably, this particular employee did not have a claim under PDL because she got four months off. Instead, the Court ruled that she could state a claim under the FEHA which governs disability leaves. A finite leave of more than four months could be a reasonable accommodation under the FEHA (even for a pregnancy related leave), and this employer had not met its obligation to engage in the interactive process on that issue prior to termination. And lest we forget, failure to engage in the interactive process is a separate-and-distinct claim under the FEHA.

Maybe it is just me, but I find this stunning. The regulations clearly state that PDL is “not to exceed” four months. Yet, the Court held that in certain circumstances the FEHA can govern a pregnancy disability leave above-and-beyond the requirements of PDL. Plus, there is an ever-growing focus on the interactive process in all circumstances.

The lesson: Rights for pregnant women begin with PDL, but certainly do not end there.