If you have a nondiscretionary bonus plan that is awarded to nonexempt employees at intervals greater than each week (for example, on a quarterly, semiannual, or annual basis), you are required to retroactively calculate the bonus into the employee’s “regular rate” of pay.
Pregnant Employee Terminated
Ana G. Fuentes Sanchez was employed as a cleaning agent by Swissport, Inc., from August 2007 until July 14, 2009. On February 27, 2009, she was diagnosed with a high-risk pregnancy and ordered on bed rest. She was scheduled to give birth on October 19, 2009.
Swissport gave Sanchez a temporary leave of absence for 19 weeks, consisting of the time she had available under California’s Pregnancy Disability Leave Law (PDLL) and the California Family Rights Act (CFRA). On July 14, 2009, it terminated her after her leaves expired.
Employee Sues for Pregnancy Discrimination, Failure to Accommodate
Two years later, Sanchez sued for discrimination based on sex, physical disability, and medical condition, failure to accommodate, failure to engage in the interactive process, and retaliation. She claimed that she was fired because she requested reasonable accommodations for her pregnancy disability.
Swissport asked the court to dismiss the case because it had provided Sanchez with all the leave mandated by the PDLL and the CFRA. Therefore, it had necessarily satisfied all of its obligations under California’s Fair Employment and Housing Act (FEHA).
Sanchez argued that she was entitled to reasonable accommodations for her pregnancy-related disability leave under the FEHA in addition to her leave under the PDLL and the CFRA. Further, she would need only a finite amount of leave because her pregnancy-related disability would end after she delivered the baby.
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The trial court concluded that the FEHA allows employers to fire employees who are unable to return to work upon expiration of leave under the PDLL. Accordingly, the trial court dismissed Sanchez’s complaint, and she appealed.
Is Pregnant Employee Entitled to More than 4 Months of Leave?
The FEHA prohibits discrimination in employment based on an employee’s disability, pregnancy, or related medical conditions and requires you to provide reasonable accommodation for an employee’s known disability unless you demonstrate that the accommodation would produce an “undue hardship.”
However, the FEHA doesn’t prohibit you from firing an employee with a physical disability who “is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.”
The provisions of the PDLL are contained within the FEHA. The PDLL provides that in addition to other FEHA provisions that govern pregnancy, childbirth, or related medical conditions, you must “allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed 4 months and thereafter return to work.”
Under the PDLL, an employee disabled by pregnancy is entitled to up to 4 months of disability leave, regardless of whether it causes an undue hardship on her employer. By contrast, under the broader FEHA provisions, an employee with a disability is entitled to a reasonable accommodation, which may include an unpaid leave of absence, provided the accommodation doesn’t impose an undue hardship on the employer.
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Swissport argued that the only remedy for an employee seeking reasonable accommodation of her pregnancy-related disability is 4 months of leave under the PDLL. According to the company, an employee isn’t entitled to any additional leave for pregnancy disability beyond 4 months, even if additional leave doesn’t cause an undue hardship on the employer.
The appellate court wasn’t convinced. According to the court, the plain language of the FEHA makes clear that “its remedies augment, rather than supplant, those set forth elsewhere in the FEHA.” The PDLL expressly states: “This section shall not be construed to affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth under any other provision of this part.”
The appellate court reasoned that under the FEHA, a woman disabled by pregnancy is entitled to the protections afforded any other disabled employee―i.e., a reasonable accommodation that doesn’t impose an undue hardship on her employer.
Accepting Swissport’s argument that the PDLL caps the maximum leave a pregnancy-disabled employee could take at 4 months would “‘diminish the coverage’ of pregnancy-related disabilities otherwise provided ‘under any other provision’ of the FEHA―precisely what the PDLL expressly prohibits.” The appellate court observed that a finite leave of absence greater than 4 months may be a reasonable accommodation for a known disability under the FEHA.
Thus, the trial court had incorrectly concluded that the FEHA permitted Swissport to fire Sanchez because she was unable to perform her job duties at the time of her termination. Instead, the court should have examined whether she could perform her job with or without reasonable accommodations. Sanchez had alleged that if she had been granted an accommodation of additional leave, she would have been able to perform the essential functions of her job upon her return to work.
Accordingly, Sanchez stated valid claims under the FEHA for:
- Discrimination based on sex, a physical disability, or a medical condition;
- Failure to provide reasonable accommodations;
- Failure to engage in an interactive process to determine reasonable accommodations; and
- Retaliation for exercising her rights under the FEHA.
In short, an employee who is fired because she is unable to return to work because of her pregnancy disability may have a valid claim under the FEHA, even if she has exhausted her 4 months of leave under the PDLL. Sanchez v. Swissport, Inc. (California Court of Appeal, Second Appellate District, 2/21/13).
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