California recently passed new regulations interpreting, clarifying, and expanding employer duties and employee rights under the state’s California Pregnancy Disability Leave law (PDL). The new regulations were approved on November 30 with little fanfare and are effective December 30, 2012, providing very little notice to employers to bring their practices into compliance.
Reed Group is well-informed about these new regulations, and has updated the California PDL chapter in Leave of Absence Advisor®.
THE NEW PDL REGULATIONS
The new PDL regulations provide the following notable changes or clarifications (among many others):
- “Four months”. The leave entitlement of “four months” of PDL leave, not previously defined, has been clarified to mean 17-1/3 (17.33) weeks. If taken as intermittent or reduced schedule leave, the employee’s entitlement is based on the employee’s average schedule during the four months prior to commencement of leave (693.2 hours of PDL based on a 40 hour work week).
- Pregnancy disability leave. The definition of “disabled by pregnancy” (which entitles the employee to pregnancy disability leave) has been broadened and now includes several specific examples, such as severe morning sickness, pre- or postnatal care, bed rest, gestational diabetes, preeclampsia, post-partum depression, and recovery from childbirth or loss or end of pregnancy. This list is illustrative only.
- Accommodation or transfer. The regulations clarify the employer’s obligation to provide the employee with a reasonable workplace accommodation or a transfer because of a “condition related to pregnancy, childbirth, or a related medical condition.” The definition of the foregoing phrase has been expanded, and now specifically includes lactation and mastitis among many other conditions. A reasonable accommodation may include a lactation accommodation.
- Rerinstatement. Following PDL leave or a transfer, the employee must be reinstated to the same position or one “virtually identical” to the one she left for leave or a transfer.
- Health insurance. The employer must maintain the employee’s health care coverage during PDL leave and CFRA leave, for a possible total of seven months.
- PDL frequency. Four months of PDL is available per pregnancy, not per year.
- Health care provider. The definition of health care provider has been expanded and now includes such providers as marriage and family therapists or acupuncturists, as well as the more traditional medical providers.
- Medical certification form. The employer must provide notice to the employee each time a certification will be required to support the employee’s request for leave, accommodation, or transfer. The DFEH has a new proposed certification form that supports all such requests.
- Updated notice forms. The regulations include new required Notices A and B to be provided to employees, advising them of their rights under PDL. As before, employers must distribute these notices to employees upon knowledge of a pregnancy or a PDL request, and must post the information in the workplace and include it in employee handbooks.
- Nondiscrimination protections have been expanded to prohibit discrimination on the basis of “perceived pregnancy.”
The new PDL regulations are quite extensive and complex, and impose many requirements on employers. Employers should review the regulations thoroughly with appropriate expert guidance and determine necessary actions for compliance. The full text of the regulations can be found here. For assistance in complying with the new California PDL regulations, or to discuss how Reed Group can help your company maintain regulatory compliance with all states’ leave of absence laws, contact Reed Group at 866.218.4650.
Today’s Multi-Million Dollar Question: When Must an Employer Provide Leave as an ADA Reasonable Accommodation?
by Martha J. Cardi, J.D. and Megan G. Holstein, J.D.
The Americans with Disabilities Act (ADA) requires employers to provide an employee who has a physical or mental disability, or a record of such a disability, with a workplace modification or adjustment – an accommodation – that will enable the employee to perform the essential functions of his or her position. In recent years, it has become clear that employers must consider a leave of absence as a reasonable accommodation even when the employee has exhausted or does not qualify for other leaves of absence.
The issues are complex. Current, thorough guidance on how employers should provide leave as an accommodation is scarce or nonexistent. As a result, employers grapple with questions such as when and why a leave of absence is an appropriate accommodation, how long the leave should be, whether the employer can deny a leave request, and what are the employee’s rights upon return from leave.
To help employers and personnel managing absences for organizations, this paper synthesizes the existing guidance from the U.S. Equal Employment Opportunity Commission (EEOC) and case law on leave as an accommodation to provide the best available insights, direction, and best practice suggestions for managing ADA leave of absence obligations.
In subsequent sections, this paper:
- Explains the concepts of “reasonable” and “effective” to help practitioners determine whether a leave of absence is an appropriate accommodation and, if so, for how long;
- Explores the employer’s sole reason to deny a leave of absence that would otherwise be a reasonable accommodation: that the leave will impose an “undue hardship” on the employer’s operation;
- Analyzes key cases and the EEOC’s perspective on leave of absence as an accommodation;
- Provides the employer a simple, workable process for handling ADA-related leave requests in an effective and lawful manner – defining the “interactive process” with a best practice framework; and
- Addresses an employee’s rights during and upon return from leave of absence.
The information and advice in this paper is offered as the most current and thorough reference for handling ADA-related leaves. It will ease the ADA compliance challenge and help employers improve their overall leave management and return-to-work processes for the benefit of their employees and their company.
To download the complete whitepaper, please visit Reed Group.
No Legal Advice. This white paper is provided for general informational and educational purposes only and does not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. This white paper is not offered as and does not constitute legal advice or legal opinions. You should not act or rely on any information contained in this white paper without first seeking the advice of an attorney.