Pregnancy-Related Conditions As Disablities

Recent developments in California and federal law make clear that employers are going to have to consider reasonable accommodations under the disability laws for pregnant women who have impairments related to their pregnancies. Such accommodations may include unpaid time off or assignment to a light duty position while the pregnant employee is unable to perform her usual job duties.

In the not too distant past, the common wisdom was that pregnancy was not considered a disability. See, for example, Gorman v. Wells Mfg. Corp., 209 F. Supp. 2d 970 (S.D. Iowa 2002), aff'd, 340 F.3d 543 (8th Cir. 2003) (periodic nausea, vomiting, dizziness, severe headaches, and fatigue were not disabilities within the meaning of the ADA because they are "part and parcel of a normal pregnancy" and are "short-term").

More recently, federal and state law have moved toward recognition of impairing conditions caused by pregnancy as disability. At the federal level, the amendment of the Americans with Disabilities Act to make clear that temporary conditions may be disabilities has led the EEOC and several courts to conclude that temporary limitations caused by pregnancy are disabilities requiring accommodations. See EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (July 14, 2014) and the cases cited at footnotes 149 and 150 through 154.

In California, the Department of Fair Employment and Housing's regulations state that a woman who has a disability resulting from pregnancy may be entitled to leave under the disability provisions of the Fair Employment and Housing Act. 2 CCR § 11047. Last year, the Second District Court of Appeal in Los Angeles ruled that a pregnant woman who had exhausted her four-month leave entitlement under the Pregnancy Disability Leave Law could nonetheless pursue a claim under the Fair Employment and Housing Act for failure to accommodate. Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331 (2013).

A right to unpaid leave as a reasonable accommodation would be in addition to the leave rights that pregnant women already have under the federal Family and Medical Leave Act (up to 12 weeks) and the California Pregnancy Disability Leave Law (up to four months while disabled by pregnancy).

Mandated Leaves in California

Employers in California must comply with three overlapping statutes that require them to give their employees time off -- the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and the pregnancy disability leave provisions of the Fair Employment and Housing Act (PDL). This post will give you the basics. If you would like training on the details of these statutes, please contact us at calvin.house@gphlawyers.com.

FMLA

Under this statute, employers with 50 or more employees must grant eligible employees up to 12 weeks off per year in the following circumstances -- (1) for the employee's own serious health condition, (2) when needed to care for a spouse, child or parent with a serious health condition, (3) in connection with the birth of a child or placement of a child for adoption or foster care (sometimes called baby bonding leave), (4) for exigencies created by the call up of a family member from the reserves or National Guard, and (5) when needed to care for a family member in the military who has been injured in the line of duty (this entitlement is up to 26 weeks). An employee is eligible for leave under the FMLA if he or she has been on the payroll for a year, and has actually worked 1250 hours within the 12 months immediately preceding the leave. Employers must maintain group health benefits during FMLA leave. The text of the statute is available here. The Department of Labor's FMLA regulations are available here.

CFRA

The CFRA has the same coverage and eligibility requirements as the FMLA. It differs in two important respects -- (1) the definition of serious health condition excludes pregnancy related conditions, and (2) by operation of the Registered Domestic Partners Rights and Responsibilities Act, the word "spouse" is interpreted to include registered domestic partners. The text of the statute is available here (Government Code section 12945.2). The Department of Fair Employment and Housing's regulations are available here (sections 7297.0 - 7297.11).

PDL

Employers with five or more employees must allow any female employee (no matter how long she has been an employee) to take up to four months of leave when she is disabled by pregnancy. Disabled by pregnancy means unable to perform the essential functions of her job without undue risk to herself, to others, or to her unborn child. Because the CFRA excludes pregnancy related conditions from its coverage, a woman will have up to 12 weeks of baby bonding time under the CFRA after she has exhausted her pregnancy leave. Her FMLA time runs concurrently with her PDL time. A new law that is effective January 1, 2012, requires employers to maintain group health benefits during pregnancy leave. The text of the statute is available here (Government Code section 12945). The DFEH's regulations are available here (sections 7291.2 - 7291.16).