©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 29 2. Leave and Accommodation Statutes 2.1 Pregnancy Disability Leave Under the Pregnancy Disability Leave Law (PDLL), California employers with five or more employees must grant up to “four months” (17.33 weeks (693 hours based on a 40-hour workweek)) of unpaid, job-protected leave per pregnancy1 to employees disabled by pregnancy, childbirth, or related medical conditions,2 regardless of whether the employer allows disability leaves generally.3 Regulations state that reinstatement must be to the exact same position (as opposed to an equivalent or comparable position), and that the employee is entitled to a written guarantee of reinstatement upon request.4 A pregnancy-disabled employee who exhausts her four months of PDLL leave also may be entitled to additional leave under FEHA, as a reasonable accommodation for a disability.5 Note that California thus requires a pregnancy disability leave, not a maternity leave. Employers who grant motherhood leaves (unrelated to disability) without also granting leaves for fathers or other parents arguably discriminate against employees because of their sex and/or gender. The PDLL requires further accommodations, such as temporary transfers, for conditions related to pregnancy, childbirth, or related medical conditions.6 A California employer may temporarily transfer an employee over her objection only if she seeks a reduced schedule or intermittent leave and a transfer would better accommodate her needs than her regular job would.7 California employers must maintain and pay for group health benefits during the employee’s pregnancy disability leave as if she were actively working during the leave, up to a maximum of four months within a 12-month period (commencing on the date the pregnancy disability leave begins).8 Employers must maintain health coverage for up to seven months if employees take their full PDLL leave and then their full CFRA leave for baby bonding.9 Employees may be required to provide medical certification confirming the need for leave and the approximate duration of the leave. Employees must provide at least 30 days’ advance notice that they will need to take PDLL unless 30 days’ notice cannot be given due to an unexpected or emergency condition. Employees may be required to use their accrued sick time during PDLL, but not accrued vacation or other accrued paid time off. Employers must not interfere with or restrain the exercise or attempted exercise of PDLL rights.10 Further, as of June 27, 2023, when the federal Pregnant Workers Fairness Act (PWFA)11 went into effect, covered employers12 are restricted by federal law from forcing pregnant employees to take leave if another reasonable accommodation can be provided that would allow the employee to continue working. Although the PWFA does not prescribe specific reasonable accommodations, the final PWFA regulations (published on April 18, 2024, and effective as of June 18, 2024) and the Congressional House Committee on Education and Labor Report on the PWFA provide examples such as: the ability to sit and drink water, receive closer parking, have flexible hours, receive appropriately-sized uniforms and safety apparel, receive additional break time, or be excused from strenuous activities. Different from the ADA and the PDLL, the PWFA requires employers to consider temporarily excusing pregnant workers from performing essential functions of their jobs absent undue hardship. This means that temporary accommodations for pregnancy-related work restrictions may be reasonable under the PFWA, but not the ADA or PDLL, due to the worker being unable to perform one or more essential functions of the position.
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