Beginning December 30, 2012, it is unlawful for any employer with one or more employees or other covered entities to harass an employee or applicant because of pregnancy or perceived pregnancy. “Perceived pregnancy” is now added as a new basis for discrimination. There is no eligibility requirement, such as minimum hours worked or length of service, before an employee affected or disabled by pregnancy is eligible for reasonable accommodation, transfer or disability leave.

California's Pregnancy Disability Leave (PDL) makes it unlawful for employers to do the following because of pregnancy or perceived pregnancy:

• Refuse to hire or employ an applicant;


• Transfer an employee over her objections to another position, unless the transfer is for the employer's legitimate operational needs;


• Require an employee to take a leave of absence when the employee has not requested leave;


• Retaliate, discharge or otherwise discriminate against an applicant or employee because she has opposed employment practices forbidden under the Fair Employment and Housing Act (FEHA); or


• Otherwise discriminate against an applicant or employee by any practice that is prohibited on the basis of sex.

Except as excused by a permissible defense, an employer must (1) provide employee benefits for pregnancy, if the employer provides such benefits for other temporary disabilities; (2) pay for coverage under a group health plan for an eligible employee who takes pregnancy disability leave under the same terms and conditions that would have been provided if the employee had not taken leave; and (3) provide reasonable accommodation for an employee or applicant affected by pregnancy.

Pregnancy Disability Leave (PDL)

A woman is “disabled by pregnancy” if, in the opinion of her health care provider, she is unable to perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy's successful completion or to other persons. An employee also may be considered to be “disabled by pregnancy” if, in the opinion of her health care provider, she is suffering from severe “morning sickness” or needs to take time off for: prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; childbirth; loss or end of pregnancy or recovery from childbirth, loss or end of pregnancy. These conditions are intended to be non-exclusive and illustrative only.

Four-Month Leave Requirement for all Employers

• All employers must provide a leave of up to four months, as needed, for the period(s) of time an employee is actually disabled because of pregnancy;


• A “four month leave” means time off for the number of days or hours the employee would normally work within four calendar months (one-third of a year or 17 1/3 weeks).


• For employees who work more or less than 40 hours per week, or who work on variable work schedules, the number of working days that constitutes “four months” is calculated on a pro rata or proportional basis.

Reasonable Accommodation

It is unlawful for an employer to deny a request for reasonable accommodation made by an employee affected by pregnancy if the employee's request is based on the advice of her health care provider. Reasonable accommodation may include, but is not limited to:

• Modifying work practices or policies;


• Modifying work duties;


• Modifying work schedules to permit earlier or later hours, or to permit more frequent breaks (e.g., to use the restroom);


• Providing furniture (e.g., stools or chairs) or acquiring or modifying equipment or devices; or


• Providing a reasonable amount of break time and use of a room or other location in close proximity to the employee's work area to express breast milk in private as set forth in Labor Code section 1030, et seq.

Guarantee of Reinstatement

An employee who exercises her right to take PDL is guaranteed a right to return to the same position or to a comparable position and the employer shall provide the guarantee in writing upon the request of the employee. It is unlawful for any employer to refuse to honor its guarantee of reinstatement unless the refusal is justified by the defenses in subdivisions (c)(1) and (c)(2). If the employee takes intermittent leave or a reduced work schedule, only one written guarantee of reinstatement is required.

Please be advised that there are a number of other changes associated with this law. Please contact Joseph J. (J.J.) Minioza who is a co-chair of Ericksen Arbuthnot's Employment Practice.