©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 49 11 Pregnant Workers Fairness Act, H.R. 2617-1626, 117th Cong. §§ 101-109 (signed into law December 29, 2022), https://www.congress.gov/117/bills/hr2617/BILLS-117hr2617enr.pdf#page=1626 (last visited March 9, 2023). 12 “Covered employers” include private and public sector employers with at least 15 employees. 13 29 U.S.C. § 207(r)(1) (employee who needs to express milk “for her nursing child for 1 year after the child’s birth” is entitled to (a) reasonable break time and (b) a private place, other than a bathroom, that is free from intrusion). 14 See, e.g., Gonzales v. Marriott Int’l, Inc., 142 F. Supp. 3d 961 (C.D. Cal. 2015) (denying motion to dismiss gestational surrogate’s claims for failure to accommodate and discrimination where she expressed milk for the child she delivered for several months and then continued to express milk for her own health benefits and for donation purposes). 15 Lab. Code §§ 1030-1032. 16 SB 142, 2019 bill amending Lab. Code §§ 1030, 1031, 1033 and adding Lab. Code § 1034. 17 Id. 18 Lab. Code § 1033(b), (c) (noting that Labor Commissioner can seek civil penalties for violations). 19 See, e.g., Gonzales v. Marriott Int’l, Inc., 142 F. Supp. 3d 961 (C.D. Cal. 2015) (denying motion to dismiss gestational surrogate’s claims for failure to accommodate and discrimination where she expressed milk for the child she delivered for several months and then continued to express milk for her own health benefits and for donation purposes). 20 San Francisco Lactation in the Workplace Ordinance, San Francisco Police Code Article 331, https://codelibrary.amlegal.com/codes/san_francisco/latest/sf_police/0-0-0-49176 (visitedMarch 5, 2022). 21 An employer that is engaged in any business or enterprise in California and directly employs five or more employees within any state of the United States, District of Columbia, or any U.S. territory. There is no requirement that the five employees work at the same location or work full time. 2 Cal. Code Regs. § 11087(d). 22 12945.2(a). SB 1383, 2020 bill amending Gov’t Code § 12945.2 to remove geographical eligibility requirement. 23 SB 1383, 2020 bill amending Gov’t Code § 12945.6 and amending, repealing, and adding Gov’t Code § 12945.2. 24 Gov’t Code § 12945.2. Special eligibility rules apply to employees working for an air carrier as a flight deck or cabin crew member: they are eligible if they have 12 months of service and meet certain other requirements. AB 1748, 2019 bill amending Gov’t Code § 12945.2 and adding § 12945.2(u). This amendment conformed CFRA with FMLA eligibility requirements. SB 1383 is the 2020 bill that further amended Gov’t Code § 12945.2, and the air carrier provisions are now in § 12945.2(r). 25 Gov’t Code § 12945.2. SB 1383, 2020 bill amending Gov’t Code § 12945.2(b)(4)(B) to add new covered family members (grandparents, grandchildren, and siblings) and revising definition of child to remove age limitations. 26 AB 1033, amending Gov’t Code § 12945.2(b)(11) to add “parent-in-law” to the definition of “parent.” 27 Gov’t Code § 12945.2. AB 1041, 2022 bill amending Gov’t Code § 12945.2(b)(2) to add “designated person” as a new covered family member: ““Designated person” means any individual related by blood or whose association with the employee is the equivalent of a family relationship. The designated person may be identified by the employee at the time the employee requests the leave. An employer may limit an employee to one designated person per 12-month period for family care and medical leave. 28 Id. 29 On two occasions, an employee has a right to take intermittent CFRA bonding leave of less than two weeks’ duration. 2 Cal. Code Regs. § 11090(d). 30 See generally 2 Cal. Code Regs. § 11091(b)(2). 31 Gov’t Code § 12945.2(q) (“It shall be an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.”). This legislation aims to incorporate parallel restrictions in the federal FMLA. 32 Lares v. Los Angeles County Metro. Transp. Auth., 56 Cal. App. 5th 318 (2020). 33 SB 1383, amending Parental Leave Act Gov’t Code § 12945.6 to sunset on December 31, 2020. 34 AB 1867, adding and repealing Gov’t Code § 12945.21. 35 Faust v. California Portland Cement Co., 150 Cal. App. 4th 864, 882-83 (2007). 36 Lonicki v. Sutter Health Central, 43 Cal. 4th 201 (2008). 37 Avila v. Cont’l Airlines, Inc., 165 Cal. App. 4th 1237 (2008). 38 Id. at 1257 (“A reasonable trier of fact could conclude that plaintiff provided sufficient notice to put Continental on notice that plaintiff needed CFRA-qualifying leave. In a case involving a medical emergency, notice on a hospital’s preprinted form that an employee was hospitalized and unable to work may be sufficient to inform an employer that the employee might have suffered a serious medical condition under CFRA, and of the timing and duration of the necessary leave. The absence itself under such circumstances suggests the necessity of a leave—at least as to those absent days.”). 39 The deadline for the employer’s response is five business days. See 2 Cal. Code Regs. § 11091(a)(6). 40 Olofsson v. Mission Linen Supply, 211 Cal. App. 4th 1236 (2012) (affirming summary judgment for employer but noting that employer might have avoided litigation with a more meticulous leave-request process: the employer took weeks to calculate how many hours the employee had worked during the preceding 12 months, before finally concluding he was ineligible for leave). The employee had requested unpaid FMLA/CFRA leave to care for his mother. The employer denied the request because he had not worked enough hours within the past 12 months. Between the employee’s request for leave and the employer’s denial, the employee spoke several times with supervisors
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