New Pregnancy Leave Obligations and Rights FEHA & PDLL

The California Second District Court of Appeal’s decision in Sanchez v. Swissport, Inc., No. B237761, will have a significant impact employment law and the way employers handle employees requiring pregnancy leave. On February 21, 2013, the court determined, for the first time, that an employee is entitled to reasonable accommodation for a disability under the California Fair Employment and Housing Act (FEHA), even after having exercised her right to the maximum leave time under the Pregnancy Disability Leave Law (PDLL).

Ana G. Fuentes Sanchez worked as a cleaning agent for Swissport, Inc. for about two years and became pregnant. Sanchez was diagnosed with a high-risk pregnancy, which required bed-rest for eight consecutive months.  Swissport granted her with 19 weeks of pregnancy leave, which included the four months allowed under PDLL plus accrued vacation time. When Sanchez was unable to return to work at the end of the 19 weeks, as she was still pregnant, she requested additional leave time until the birth of her child.  Swissport denied the additional leave and instead terminated Sanchez from her position.

Shortly thereafter, Sanchez filed a complaint against Swissport, claiming pregnancy discrimination and failure to accommodate under FEHA based on Swissport’s refusal to provide her with additional time off. Swissport defended Sanchez’ claim by asserting that it had complied with California law, by allowing Sanchez the maximum leave time under PDLL.

The Los Angeles Superior Court, claiming that Sanchez did not have a cause of action against her employer under FEHA as they had given her the maximum leave allotted under the PDLL, dismissed her case.  Sanchez appealed. On appeal, the second district court of found Sanchez’s case meritorious and reversed the lower court’s dismissal.

Provisions of FEHA and PDLL

Under the PDLL, an employer must allow up to four months time off for an employee with a pregnancy-related disability, regardless of any hardship to the employer. The express language of the PDLL states that it must not be interpreted as affecting any other legislation regarding sex discrimination or to be construed as diminishing the coverage offered by any other regulation.

Under FEHA, discrimination based on pregnancy or a pregnancy-related medical condition is a form of sex discrimination. Under its provisions, an employer must provide reasonable accommodations for a disabled employee so long as such accommodations do not cause undue hardship to the employer. The court stated that additional time off is a form of reasonable accommodation as long as it is foreseeable that at the end of the extended leave the employee will be able return performing her duties.

The court of appeals clarified that the provisions of the PDLL are in addition to those of the FEHA, and do not replace it; therefore, even after exhausting the four month leave allowed under PDLL, an employee who remains disabled may be granted additional time off.

California’s New Pregnancy Disability Regulations

The court of appeal’s interpretation of the non-exclusive nature of the PDLL as a remedy for a pregnancy related disability aligns with California’s new pregnancy disability regulations. On December 30, 2012, the Fair Employment and Housing Commission (FEHC) passed Section 7291.14 of California’s Code of Regulations which states that the entitlement of up to four months of leave under the PDLL is “separate and distinct” from the provisions of FEHA allowing for reasonable accommodations for a disability. Furthermore, stating that once the four months allowed under PDLL has expired, one may still be eligible for reasonable accommodation under the FEHA for one’s disability, which may or may not be due to  pregnancy.  In short, entitlement to reasonable accommodations under FEHA is not diminished by the employee’s exercise of her right to pregnancy leave under PDLL.

Impact on Employers

The practical effects of these legal current events are significant and should make employers cautious when dealing with employees on pregnancy disability leave. Based on this decision, even when an employee has used up all the leave time to which the employee is entitled, the employer must engage in an interactive process with the employee in order to secure a reasonable accommodation for the employee.

What should an employer do in this situation to try to avoid a discrimination claim?

  • Engage in the interactive process with employees who are nearing the end of PDL but are still unable to return to work.
  • Assess what accommodations might work — perhaps the employee could return to work for part of the day and telecommute part of the day; or perhaps additional leave time is necessary.
  • Request medical certification to substantiate the need for reasonable accommodations.
  • Seek legal advice before making a decision to terminate the employee, even when you believe further accommodation poses an undue hardship. Such a decision exposes you to significant liability risk.