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California to implement revised pregnancy regulations

December 19th, 2012  |  Deborah Hammonds

Several noteworthy changes are in store for California employers when revised pregnancy regulations issued by the California Fair Employment and Housing Commission take effect on December 30 (note: on January 1, 2013, the Commission was redesignated the Fair Employment and Housing Council). The state’s Office of Administrative Law approved the changes on November 30 following an interactive process that included public feedback.

Definitions are changed significantly, starting with a more detailed definition of “disabled by pregnancy.” Lactation is specifically included as a “condition related to pregnancy, childbirth, or a related medical condition.” A “perceived pregnancy” is protected and is defined. “Four months”—the duration of available leave—is also revised in order to clarify how to calculate leave. The definition of health care provider is expanded as well.

The new regulations clearly articulate the employer’s duty to reasonably accommodate an employee’s pregnancy. Additionally, they change employers’ obligations regarding reinstatement of an employee after pregnancy leave. Specifically, for an employer to justify not reinstating an employee to a comparable position after pregnancy leave, it must prove either:

A.   that the employer would not have offered a comparable position to the employee if she would have been continuously at work during the pregnancy disability leave or transfer period, OR

B.   that there is no comparable position available.

Further, the regulations clarify employers’ health care coverage obligations under pregnancy leave (applicable to employers with five or more full or part-time employees) and under the California Family Rights Act (applicable to employers with 50 or more employees). The time that an employer maintains and pays for group health coverage during pregnancy disability leave must not be used to meet an employer’s obligation to pay for 12 weeks of group health coverage during leave taken under CFRA. This is true even where an employer designates pregnancy disability leave as family and medical leave under FMLA. The entitlements to employer-paid group health coverage during pregnancy disability leave and during CFRA are two separate and distinct entitlements. 

The full text of the approved regulations can be found at http://www.dfeh.ca.gov/res/docs/FEHC%20Pregnancy%20Regs/FINAL_APPROVED_PREG_REGS_CLEAN_11_30_12.pdf.

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