Starting Jan. 1, 2012, employers in California with five or more employees must continue paying their share of health insurance premiums for female employees taking leave under the Pregnancy Disability Leave law for up to four months in any 12-month period.
Employers will also be liable for interfering with, restraining or denying the exercise of pregnancy leave of up to four months to female employees experiencing pregnancy, childbirth or related medical conditions.
The bills – A.B. 592 and S.B. 299, signed by California Gov. Jerry Brown on Oct. 9 and Oct. 6, respectively – fill coverage and enforcement gaps between the state and federal leave laws.
S.B. 299 addresses the problem of health insurance for pregnant workers on leave.
Under the federal Family and Medical Leave Act, employers with 50 or more workers have to pay their share of normal health insurance premiums while eligible employees took leave. But there was no such requirement of California employers under the state’s PDL law. As a result, California employees at companies with more than five — but less than 50 — workers were often left with no insurance coverage during pregnancy-related leaves.
The California Family Rights Act requires that employers with 50 or more employees grant leave for bonding with an employee’s newborn, newly-adopted or foster child. However, pregnancy itself is not a condition covered under CFRA. Pregnancy and related medical complications are covered under the PDL law.
Maria A. Audero, a partner in the employment law practice at Paul Hastings LLP, explained: “The PDL is a separate law from the CFRA, but both arise under FEHA”, the state’s Fair Employment and Housing Act.
“The interesting thing is that CFRA, unlike the FMLA, does not recognize pregnancy disability as a serious health condition, primarily because California has a separate law to address pregnancy disability – the PDL,” Audero said. “What is difficult for employers is that, although the PDL leave runs concurrently with the FMLA, it does not with the CFRA. So, a California employee could take four months of pregnancy disability leave under the PDL and then have an additional 12 weeks of leave under the CFRA.”
Employers can seek reimbursement for health insurance premiums if the employee does not return to work, unless further leave is granted under CFRA (for bonding, etc.) or for some other serious health condition.
A.B. 592 addresses the issue of employer interference with employees seeking pregnancy leave under the PDL law or family medical leave under CFRA.
It is illegal under the PDL law for a covered employer to refuse leave to an employee for pregnancy, childbirth or related medical conditions (“unless based upon a bona fide occupational qualification,” the text of the law stated). The new law makes it also unlawful for an employer to interfere with, restrain, deny or attempt to deny any of those rights.