Pregnancy Disability Leave In California: What Should Employers Be Expecting?

Last year, the Department of Fair Employment and Housing ("DFEH") implemented new regulations interpreting the Pregnancy Disability Leave ("PDL") Law, California Government Code § 12945 (the "Pregnancy Disability Regulations"), and new regulations interpreting reasonable accommodation under the Fair Employment and Housing Act ("FEHA"), Gov. Code § 12900 et seq (the "Disability Discrimination Regulations").1 The new regulations became effective on December 30, 2012, and together have the effect of eliminating any cap on the leave an employer must give to its employees with disabilities under a combination of the PDL Law, FEHA, or the California Family Rights Act ("CFRA"). A recent decision interpreting the FEHA cited the new PDL regulations and held that a disabled employee is eligible for disability leave under FEHA even after exhausting four months of PDL.

A Quick Refresher: What Are the Maximum Disability Leave Entitlements?

How much leave an employer should grant an employee with a disability depends on which statutes apply. Some disabilities may come under the scope of more than one statute and that issue is addressed head-on by the new regulations and a recent court of appeal decision.

Statutory Schemes with Maximum Leave Entitlements

The California Family Rights Act, federal Family Medical Leave Act, and the California Pregnancy Disability Leave Law provide certain amounts of leave to employees for their own disabilities (among other things). The statutes purportedly place a limit on the maximum entitlement under the statutes as follows:

CFRA: Under CFRA an employer must allow an employee to "take up to a total of 12 workweeks in any 12-month period for family care and medical leave." Gov. Code § 12945.2(a). CFRA leave can be used after the birth of a child for purposes of bonding; after placement of a child in the employee's family for adoption or foster care; for the serious health condition of the employee's child, parent, or spouse; or for the employee's own serious health condition. § 12945.2(c). Although CFRA leave may be used for baby bonding or for the serious health condition of a newborn, CFRA leave cannot be used for the employee's pregnancyrelated or childbirth-related disabilities. (See PDL Law below.) The statute applies to employers with 50 or more employees. § 12945.2(b).

Family Medical Leave Act ("FMLA"): Under the federal FMLA, "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period" for reasons similar to CFRA leave, but including the employee's pregnancy-related or childbirth-related disabilities. § 103. The statute applies to employers with 50 or more employees. § 101.

PDL Law: Under this California statute, which is part of CFRA but applicable only to an employee's pregnancy-related or childbirth-related disabilities, the employee must be permitted to take "leave for a reasonable period of time not to exceed four months and thereafter return to work." Gov. Code § 12945(a) (1). The new regulations interpret four months as one-third of a year, or 171/3 weeks of leave (calculated to the hour). PDL is in addition to any leave available under CFRA, including 12 weeks of leave for baby bonding. The statute applies to employers with five or more employees.

These three statutes do not provide employers with an "undue burden" defense with regard to granting the leave. An employee must make the requisite showing that he or she is disabled, if that is the basis of the entitlement, and then the employer must grant the leave. Statutory Schemes Without Defined Leave Entitlements Both the Americans with Disabilities Act and FEHA require an employer to provide reasonable accommodations to an employee with a disability, which could include a leave of absence. There...