New California Pregnancy Regulations in the Workplace Hit the Pavement Effective December 30, 2012

California’s Fair Employment and Housing Commission (“FEHC”) approved new Pregnancy Regulations effective December 30, 2012.

One of the significant changes is Code of Regulations section 7291.14, which makes it clear that a woman disabled by pregnancy may be entitled to a leave of absence as an accommodation under ordinary disability law, separate and apart from pregnancy disability leave (“PDL”).  Section 7291.7, “Reasonable Accommodation,” states it is unlawful for an employer to deny a request for reasonable accommodation made by “an employee affected by pregnancy” if:
(1) The employee’s request is based on the advice of her health care provider that reasonable accommodation is medically advisable; and
(2) The requested accommodation is reasonable.

The focus of the new regulations emphasizes employers’ ability to implement minor accommodations that are less costly than transferring an employee, or requiring an employee to take a leave.  The new regulations are intended to help workers affected by pregnancy stay in their job, where possible.  

The Commission added a provision on involuntary transfer consistent with the holding in the U.S. Supreme Court's decision in UAW v. Johnson Controls (1991) 499 U.S. 187, which held that involuntary transfer of employees who might become pregnant to a less hazardous job constituted sexual discrimination, in violation of Title VII.

The Commission anticipates that the cost of providing reasonable accommodation for employees “affected by pregnancy” (estimated in the Commission's Economic Impact Statement to be approximately $527 per pregnant employee for 9-12 pre-natal visits) will be offset by its benefits (reduced employee turnover costs, employee able to work longer, and lower unemployment insurance claims).

For more information, please contact your labor law counsel. 

By Lisl Duncan

Legal Developments