New Fair Employment and Housing Commission Regulations Impact Pregnant Employees


By: Morin I. Jacob
California Public Agency Labor & Employment Blog, March 01, 2013

New Fair Employment and Housing Commission regulations took effect December 30, 2012 and deal with disability discrimination.  This blog post will focus on the impact of the new regulations on issues related to pregnancy and the treatment of pregnancy related conditions as disabilities. 

The new regulations expand the scope of pregnancy related conditions that can entitle an employee to a transfer, leave, or reasonable accommodation, should a healthcare professional so recommend.  Although not intended to be exhaustive, the pregnancy related conditions that may require accommodation of a pregnant employee include: lactation, severe morning sickness, prenatal care, postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, postpartum depression, childbirth, loss of pregnancy, and end of pregnancy.

The new regulations also clarify the amount of leave an employee disabled by her pregnancy is eligible for, and how leave time used is to be counted.  For example, the regulations provide that pregnant employees are eligible for up to four months (or 17⅓ weeks) of pregnancy disability leave per pregnancy, not four months per year.  Plus, in an attempt to make it easier to calculate intermittent leave, the definition of four months is now to be counted down to the hour. Leave must be accounted for in the smallest increment offered for any other type of leave, but never deducted in increments larger than one hour. For example, if the smallest increment of leave an employer uses is one hour, then an employee who takes off 1.5 hours for a prenatal care appointment can be charged for two hours of leave. However, if the smallest increment the employer uses is one-half hour, then the leave entitlement can only be reduced by 1.5 hours.

The new regulations also add a "perceived pregnancy" definition which impacts the definition of "because of pregnancy."  As a result, an employer cannot refuse to hire an applicant because of pregnancy or because of perceived pregnancy.  However, an employee is not entitled to a leave or reasonable accommodation because the employer perceived her to be pregnant when she was not.  In fact, the employee has to be entitled to a reasonable accommodation or leave "because of" pregnancy.

Employers should analyze and update their leave and disability/reasonable accommodation policies to ensure compliance with these new regulations. 

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