Fortunately for Rose, the California Fair Employment and Housing Commission recently issued amended regulations, effective on December 30, 2012, that clarify that employers must continue providing health insurance coverage during both pregnancy disability leave AND bonding leave under the California Family Rights Act. ERA was able to use those amended regulations to ensure that Rose could take the leave she needed without losing much needed health insurance coverage.

Pregnant workers and families across California will begin the new year with many important increased protections due to amendments to the regulations for the California Fair Employment and Housing Act. These amendments were informed by years of experience of a coalition of California legal services organizations (including ERA), that saw firsthand the issues that most pregnant workers face in the workplace. Below are some of the important changes that were made:

Clarification of the FEHA’s reasonable pregnancy accommodation requirement

• When an employer becomes aware that an employee might need a pregnancy accommodation, the employer must engage in a good faith conversation with a pregnant employee who needs an accommodation to identify a reasonable accommodation. This means that the employer cannot automatically and categorically deny the worker a pregnancy accommodation upon receiving a request, without discussing options and alternatives.
• The regulations now provide examples of reasonable pregnancy accommodation, including: providing break time and space for breast feeding or pumping, providing the employee with a sitting stool, modifying an employee’s work duties or schedule, and providing additional leave to an employee once she exhausts her four months of pregnancy disability leave.

Clarification of the FEHA’s pregnancy disability leave requirement

• Employees can be entitled to pregnancy disability leave for a broad array of pregnancy-related conditions, including: severe morning sickness, gestational diabetes, hypertension, preeclampsia, and post-partem depression.
• The only defense to failing to reinstate an employee when she returns from her pregnancy disability leave is if the employer has a legitimate business reason that is not related to the fact that the employee took the leave. The regulations no longer allow an employer to fail to reinstate an employee when holding her position open during her pregnancy disability leave would substantially undermine the business operations of the employer.
• It may be unlawful for an employer to force a pregnant employee on leave when the employee has not requested leave.

Clarification that employers must provide language appropriate notice to employees that are not English proficient.

If you are an employee that needs more information about your employer’s obligations to provide pregnancy accommodations or leave, please call ERA’s Advice and Counseling Hotline at 1-800-839-4ERA.

Confirming California’s role as a leader in protecting the rights of working pregnant women, the Fair Employment and Housing Commission’s (FEHC) revised pregnancy regulations were approved on November 30th.

When these regulations become effective on December 30, 2012, they will clarify the legal requirement that employers provide reasonable accommodations to pregnant women, such as chairs, frequent bathroom breaks, and assistance with heavy lifting. While a 1999 amendment to the Fair Employment and Housing Act required employers to provide these accommodations, updated regulations were needed to conform to these statutory changes.  In 2011, the law was amended again to compel employers to continue workers’ health insurance during pregnancy disability leave.

The new regulations provide helpful guidance to employers and employees about safeguards for pregnant women in the workplace.  Providing these accommodations is the responsibility of employers and can be critical to the well-being of workers. For example, Laura worked as a program counselor at a facility for people with disabilities. During her pregnancy, on her doctor’s advice, she asked to be relieved from bending and twisting when securing wheelchairs to a bus. Her employer refused, forcing her onto unpaid leave and threatening to fire her if she did not return in four months. The four-month deadline coincided with her due date. Once a legal advocate informed Laura’s employer of their obligation to provide a reasonable accommodation under the law, Laura was reinstated, paid back wages, and given the modification she needed.

But many pregnant workers do not realize they are entitled to these accommodations and do not seek legal help. The revised regulations will make it clearer to employers and employees alike that pregnant workers are fully protected in the workplace.  In addition to explaining an employer’s duty to provide reasonable pregnancy accommodations and to continue health benefits during pregnancy leave, the final FEHC regulations also

• clarify that it is unlawful for an employer to require a pregnant woman to take a leave of absence when she has not requested leave;
• explain that employers must provide lactation accommodations to nursing mothers;
• list examples of conditions that entitle a woman to take up to four months of job-protected pregnancy disability leave, including gestational diabetes, loss or end of pregnancy, and post-partum depression; and
• describe an employer’s obligation to grant extended leave beyond 4 months if an employee has a qualifying disability under the FEHA.

A coalition of women’s and civil rights organizations* provided essential comments and testimony on the proposed regulations during a two and a half year period, and helped ensure that the final regulations provide the protection to pregnant workers that the Fair Employment and Housing Act mandates. The coalition applauds the approval of the regulations, and looks forward to seeingimproved employer compliance with the Act.

Noah Lebowitz, Board Member of coalition member California Employment Lawyers’ Association said:  “This is a great day for all Californians.  The clarity provided by these regulations will empower working pregnant women to know and exercise their rights and will simultaneously provide an easy-to-understand guide for employers to comply with the provisions of the Fair Employment and Housing Act.  The result will surely be an increase in employment and a reduction of litigation.”

According to Sharon Terman, Senior Staff Attorney at the Legal Aid Society–Employment Law Center, “California has long been a leader in providing broad protections for working pregnant women. We are thrilled that the final regulations reflect the intent of the law and confirm these basic rights.”

Jennifer Reisch, Legal Director at Equal Rights Advocates, noted that, “Allowing valuable employees to continue working throughout their pregnancies whenever they can makes sense for families andbusinesses.  We are very pleased that these regulations uphold the letter and spirit of California’s pregnancy accommodation law.”

The following organizations gave input and helped shape the revised pregnancy regulations:

• American Association of University Women–California
• California Commission on the Status of Women
• California Employment Lawyers Association
• California Women’s Law Center
• California Work and Family Coalition
• Center for WorkLife Law, UC Hastings
• Equal Rights Advocates
• Legal Aid Society-Employment Law Center
• Women’s Employment Rights Clinic of Golden Gate University Law School