Dec. 20, 2012 Amended Pregnancy Disability Leave Regulations Take Effect December 30

On December 30, 2012, new pregnancy disability leave (“PDL”) regulations take effect that clarify, amend and create new obligations for employers.  Because employers with five or more employees must provide PDL, the regulations affect most California employers.

Discussion

The amended PDL regulations include several significant changes that expand coverage and protection for eligible employees, clarify employers’ responsibilities to accommodate disabilities associated with pregnancy, and increase employer obligations and potential liability.  The most notable amendments include:

  • Longer entitlement to continuing medical coverage.  As of January 1, 2012, employers have been required to maintain and pay for group health benefits for employees on PDL on the same terms and conditions as if they were working.  The new PDL regulations provide that the time an employer maintains group health coverage during PDL cannot be used to meet an employer’s obligation to maintain such coverage during California Family Rights Act (“CFRA”) leave.  This is true even when PDL runs concurrently with leave taken under the Family and Medical Leave Act (“FMLA”).  Because the new regulations state that the entitlements to employer-provided health coverage during PDL and CFRA are distinct, employers may be required to maintain group health benefits for employees not only through PDL and/or FMLA, but also for up to an additional 12 weeks of baby-bonding leave under the CFRA.
  • Prohibition against discrimination based on a “perceived pregnancy.”  It is now unlawful for employers to harass or discriminate against an employee or applicant because of pregnancy or perceived pregnancy.  The additional protection for employees who are not pregnant, but only believed to be pregnant, is new. 
  • Clarification for calculating four month PDL period.  The amended regulations clarify that PDL must be calculated using hours worked instead of days.  Specifically, a “four month leave” means “time off for the number of days or hours the employee would normally work within four calendar months (one third of a year, or 17 1/3 weeks).”  The regulations also state that PDL may be taken on an intermittent basis.  As a result, partial days off work due to pregnancy must be pro-rated by using “the shortest period of time that the employer’s payroll system uses to account for other forms of leave,” but the largest increment permitted is hourly.    
  • More examples of pregnancy-related disabilities.  The amended regulations provide an expanded, non-exhaustive list of conditions that may support PDL, including: prenatal or postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, childbirth, loss or end of pregnancy, and recovery from childbirth or loss or end of pregnancy.
  • Increased eligibility for PDL.  The regulations clarify that employees are eligible for up to four months of PDL per pregnancy, not per year. 
  • Notices “A” and “B” may be posted electronically.  Workplace posters, Notices “A” and “B,” have been updated and can now be posted electronically. 
  • More stringent reinstatement requirements.  Employers can no longer deny reinstatement because preserving the employee’s job or duties would substantially undermine the employer’s ability to operate the business safely and efficiently.  A refusal to reinstate is only permissible if the employer establishes that the employee would not have been employed in her same position at the time reinstatement is requested for a legitimate business reason unrelated to the pregnancy (i.e. layoffs). 
  • Affirmative duty to notify employees of available position.  Employers have an affirmative duty to notify employees whose job was eliminated of “available” positions for reinstatement.  Under the new regulations, a position is considered “available” if it is open on the date the employee is scheduled to return or within 60 calendar days of her scheduled return.  This amendment significantly expands the previous definition of “available,” which only spanned 10 working days.
  • Employers must engage in interactive process.  The amended regulations state that employers must engage in a good-faith interactive process to identify and implement reasonable pregnancy-related accommodations. 

What This Means

The amended PDL regulations broaden the types of conditions that may be considered pregnancy-related disabilities and provide greater obligations on employers to provide eligible employees with group health coverage. 

Given these new regulations, employers should review and update their leave policies and practices.  Employers should also be prepared to comply with the more stringent reinstatement requirements and have processes in place to handle such situations. 

This E-Update was authored by Brenda Kasper, Lisa Frank and Danielle Blackhall.  For more information, or questions, please contact Ms. Kasper, Ms. Frank, Ms. Blackhall, or any Paul, Plevin attorney at (619) 237-5200.