Pregnancy laws beyond disability leave: What reasonable accommodations are required?

California employers are well-versed in the laws about pregnancy disability leave, but what other pregnancy laws affect employer obligations? What reasonable accommodations must be provided for pregnant employees?

More pregnant employees may be entitled to reasonable accommodations because there are new regulations that broaden the types of “conditions of pregnancy” for which workplace accommodations will be required – even if they don’t involve a pregnancy-related disability. Are you familiar with the pregnancy laws as they relate to reasonable accommodations?

Pregnancy laws in California: What accommodations should be considered?

Reasonable accommodations for pregnancy or conditions of pregnancy might include:

• Making a change in the work environment or the way a job is customarily done that is effective in enabling an employee to perform the essential functions of a job.
• Modifying work practices or policies. “That includes, ladies and gentlemen, attendance policies and punctuality policies.” Patricia S. Eyres warned in a recent CER webinar. This may not always be deemed a reasonable accommodation, but it must always be considered.
• Modifying work duties such as the timing when duties are done during the work day.
• Modifying work schedules to permit earlier or later hours or to permit more frequent breaks.
• Providing furniture (such as stools or chairs) or acquiring or modifying equipment or devices.
• Providing reasonable amount of break time and use of a room or other location in close proximity to the employee’s work station to express breast milk in private. (This is a new expansion beyond the Labor Code provisions for extended unpaid break periods.)
• Utilizing light duty options if used in other circumstances. The law states that it is unlawful for an employer who has a policy, practice, or collective bargaining agreement (CBA) requiring or authorizing the transfer of temporarily disabled employees to less strenuous positions or duties for the duration of the disability, including disabilities resulting from on-the-job injuries, to fail to apply the policy, practice or CBA to transfer an employee who is disabled by pregnancy and who so requests.

This list is meant to provide options, but is not comprehensive.

Pregnancy laws in California: When must accommodation be provided?

When it comes to providing reasonable accommodations, it’s best to treat those affected by pregnancy just as you would anyone else seeking a reasonable accommodation. In fact, “it is unlawful to deny a reasonable accommodation if the request is on the advice of a healthcare provider . . . [stating] that it’s medically advisable for the employee to be reasonably accommodated . . . The same standards of what’s reasonable versus what’s an undue hardship are now going to apply here as they apply to non-pregnancy-related disabilities, even though these are just conditions of pregnancy.” Eyres advised. The employer and employee shall engage in an interactive process to identify and implement the employee’s request for reasonable accommodation.

Whether an accommodation is reasonable is a factual determination to be made on a case-by-case basis, taking into account factors such as:

• The employee’s medical needs
• The duration of the necessary accommodation
• The employer’s legally permissible past and current practices
• Other factors under the totality of circumstances

The employer may (but need not) require a medical certification to substantiate the need for accommodation.

When a reasonable accommodation is granted, it shall not affect the employee’s independent right to take up to 4months of pregnancy disability leave. This is separate. However, if the accommodation involves a reduction of hours or intermittent leave, the employer may consider this a form of pregnancy disability leave and deduct the hours from the 4-month entitlement.

The above information is excerpted from the webinar “Pregnancy & Disability Leave in California: How New Regs Will Impact Reasonable Accommodation.” To register for a future webinar, visit CER webinars.

Patricia S. Eyres, Esq., the managing partner of Eyres Law Group, LLP, focuses on helping employers manage disability discrimination issues for both workers’ comp and non-occupational disabilities. As president of Litigation Management & Training Services and CEO/Publisher of Proactive Law Press, LLC, Eyres trains managers and supervisors on how to recognize risks, prevent lawsuits, and maintain defensible documentation.