New regs bring focus to California pregnancy discrimination

Many employees may worry about how to tell their boss that they are pregnant. What will be the reaction and will it affect your career? For someone in the midst of a job search there may be worries that once noticeable the pregnancy will hurt her chances. However, pregnancy discrimination in the form of hiring decisions or adverse employment actions is unlawful.

California has broader protections than the Federal Medical Leave Act. For instance, employers must allow up to four months of job protection following the birth of a child under California's Pregnancy Disability Leave Law, a part of the Fair Employment and Housing Act (FEHA). In addition, there is the California Family Rights Act (CFRA) that provides an employee with twelve weeks of leave if both the employee and employer meet the requirements.

Protections may also extend past the four months. A recent California Court of Appeals case addressed whether an employee could ask for accommodations when returning to work. The court found that the Pregnancy Disability Leave Law allows for four months of disability leave even if it causes a hardship to the employer. In addition, the FEHA allows an employee with a disability lasting longer than the four months a reasonable accommodation if it does not cause an undue hardship to the employer.

Changes contained in the new pregnancy regulations

The new regs passed in October 2012 and became effective December 30, 2012 prohibit discrimination based on perceived pregnancy. For example, employers cannot base the following employment decisions on pregnancy or perceived pregnancy:

  • Refusal to hire an applicant
  • Discrimination in terms, privileges or conditions of employment
  • Retaliation of an employee who files a complaint

Employers also must provide reasonable accommodation for an employee or applicant affected by pregnancy when a health care provider deems it medically advisable. Whether the accommodation is reasonable depends on the totality of the circumstances, including employee medical needs and duration of the needed accommodation.

An expansion of the "disabled by pregnancy" definition includes time off for severe morning sickness, prenatal or postnatal care, bed rest, post-partum depression and loss of pregnancy.

Leave calculations

A clarification of four months of leave (one-third of the year) means that an employee can take off the number of hours she would have worked during four months. For employees with variable part-time schedules, the calculation is an average of the time worked in the four months prior to the leave.

Any intermittent leave taken before the pregnancy is deducted from the total. For example, an employee who works 20 hours per week receives 346.5 hours. If she took 100 hours of intermittent leave during pregnancy, she would still have 246.5 hours or almost three months available after the birth of her child. Refusal to provide adequate time off may be a family and medical leave violation.

An employer must reinstate an employee to the same or a comparable position after pregnancy disability leave. An employer cannot transfer the employee or refuse to reinstate the employee except in rare circumstances.

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