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Employment Law Alert: New Pregnancy Regulations Provide Guidance to Employers

April 10, 2013 |
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Effective December 30, 2012, the Fair Employment and Housing Commission issued new pregnancy discrimination regulations.  These regulations provide guidance to employers about their obligations to pregnant employees and applicants.

California’s Fair Employment and Housing Act (FEHA) defines “sex” to include pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, and now also includes breastfeeding.  Employers are prohibited under this statute from discriminating against an employee or applicant because of pregnancy, childbirth or related medical conditions, as well as because of a perception that any person has those characteristics (such as a perception that a woman is pregnant).  The new regulations state that an employer cannot, because of an employee’s or applicant’s pregnancy or perceived pregnancy, refuse to hire, employ, train, or promote the individual.  Nor can the employer fire, harass, discriminate or retaliate against, or transfer or require the individual to take leave against her wishes, because of the employee’s pregnancy or perceived pregnancy.

The new regulations also clarify how employers should calculate the four-month pregnancy disability leave of absence provided under Government Code §12945.  For employees who work more or less than a 40-hour per week schedule, the leave is calculated on a pro rate or proportional basis.  For all employees, the leave may be taken all at once, on a reduced schedule, or intermittently.  Employers may account for leave in increments of the shortest period of time that the employer’s payroll system uses to account for other forms of leave, as long as the amount is not more than one (1) hour.  As in the past, if the employer has a more generous policy for any other form of disability leave, that policy must be applied to pregnancy disability leave as well.

In sum, the new regulations recognize that the right to take pregnancy disability leave is separate and distinct from any right to take a leave of absence as a form of reasonable accommodation for a disability.  An employee’s right to take a leave of absence for physical or mental disability is not diminished by her exercising her right to take a pregnancy disability leave.

As of January 1, 2012, employers were required to continue providing group health benefits to employees on pregnancy disability leave for the full four (4) months over the course of a year, beginning on the date the leave begins and maintained at the same level and conditions of coverage as if the employee had continued working.  The new regulations clarify that the time an employer maintains group coverage during pregnancy disability leave cannot be used to meet the employer’s obligation to pay for twelve (12) weeks of group health coverage during CFRA leave, regardless of whether the pregnancy disability leave is designated as family and medical leave under the FMLA.  In other words, an employee is entitled to employer-paid group health coverage both during pregnancy disability leave and during CFRA leave – they are two separate entitlements, which may total almost seven (7) months.

For more information please contact any member of Berliner Cohen’s Employment Law & Litigation Group:

Roberta S. Hayashi, 
Christine H. Long,
Susan E. Bishop,
Kara L. Arguello, 

©2013 Berliner Cohen. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship and no attorney-client relationship is created through your use of the Berliner Site or your receipt of the materials.

Berliner Cohen’s experienced employment law attorneys advise and represent employers and managers on a full range of legal issues affecting the workplace, including harassment and discrimination, unfair competition and trade secrets, wrongful discharge, wage and hour issues, and labor disputes. Berliner Cohen is one of the largest and oldest law firms in San Jose serving the business and regulatory needs of private business and public agencies in Northern California. For over 45 years, the Firm has developed the special expertise required by a diverse client base consisting of nationally recognized business interests and a number of Silicon Valley’s largest national and multinational corporations, new ventures, leading real estate developers and brokerages, cutting-edge technology companies, healthcare and other service providers, banking and financial institutions, municipalities, public agencies and individuals. Berliner Cohen also meets the growing demands of the Central Valley with its expanding offices in Merced and Modesto.