When Your Employee Is (Or May Be) Pregnant . . . New 2013 Regulations
Posted January 2, 2013
On November 30, 2012, 28 pages of new pregnancy regulations were approved by the California Office of Administrative Law, effective December 30, 2012. Some of the amendments are technical and merely update terminology in the existing regulations. Other changes are far more significant:
- The regulations alter the written notices that employers are required to post in the workplace. Copies must be provided to pregnant employees. If you employ 50 or more employees, use Notice B, which can be downloaded at: http://www.dfeh.ca.gov/res/docs/Publications/NOTICE%20B.pdf. If you employ fewer than 50 employees, use Notice A, which can be downloaded at: http://www.dfeh.ca.gov/res/docs/Publications/NOTICE%20A.pdf
- Each time a certification is required, the employer must notify the employee in writing of the requirement and provide the employee with a form for the employee’s health care provider to complete. The regulations include an approved form entitled “Certification of Health Care Provider for Pregnancy Disability Leave, Transfer and/or Reasonable Accommodation.”
- The new regulations clarify the term “four months” of leave. The four-month designation is ambiguous because calendar months do not have an equal number of days. The new definition of four months now includes alternative methods of calculation and defines the four-month period as the number of days the employee would normally work within four calendar months (one-third of a year, equaling 17-1/3 weeks), if the leave is taken continuously following the date the pregnancy disability leave commences. The clarified definition becomes more involved when intermittent leave is taken. If an employee's schedule varies from month to month, a monthly average of the hours worked over the four months prior to the beginning of the leave shall be used for calculating the employee's normal work during any four-month period of leave.
- The definition of the term “disabled by pregnancy” is expanded to include time off for postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, childbirth, loss or end of pregnancy and recovery from childbirth, loss or end of pregnancy.
- It has always been unlawful to discriminate against or harass an employee because of that employee’s pregnancy, childbirth or related medical conditions. Under the new regulations, it is also unlawful to discriminate or harass an employee or applicant based on the perception that the employee is pregnant.
- The revisions clarify an employer's obligations to provide reasonable accommodations or a temporary transfer to an alternative position when a woman is affected by pregnancy, childbirth or related medical conditions. These conditions now include lactation-related medical conditions such as mastitis, and lactation-related accommodations such as the need for a private place to express milk.