Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 29 2. Leave and Accommodation Statutes 2.1 Pregnancy Disability Leave Under the Pregnancy Disability Leave Law (PDLL), California employers with five or more employees must grant up to “four months” (17.33 weeks) of unpaid leave per pregnanc y 1 t o employees disabled by pregnancy, childbirth, or related medical condition s, 2 r egardless of whether the employer allows disability leaves generally . 3 Regulations state that the reinstatement must be to the exact same position (as opposed to an equivalent or comparable position), and that the employee is entitled to a written guarantee of reinstatement upon request . 4 A pregnancy- disabled employee who exhausts her four months of PDLL leave also may be entitled to additional leave under FEHA, as a reasonable accommodation for a disability . 5 Note that California thus requires a pregnancy disability leave, not a maternity leave. Employers who grant motherhood leaves (unrelated to disability) without also granting fatherhood leaves arguably discriminate against male employees because of their gender. The PDLL requires further accommodations, such as temporary transfers, for conditions related to pregnancy, childbirth, or related medical conditions . 6 A California employer may temporarily transfer an employee over her objection only if she seeks a reduced schedule or intermittent leave and a transfer would better accommodate her needs than her regular job would . 7 C alifornia employers must maintain and pay for group health benefits during the employee’s pregnancy disability leave as if she were actively working during the leave, up to a maximum of four months within a 12-month period (commencing on the date the pregnancy disability leave begins ). 8 Employers must maintain health coverage for up to seven months if employees take their full PDLL leave and then their full CFRA leave for baby bondin g. 9 Employers must not interfere with or restrain the exercise or attempted exercise of PDLL rights . 10 2.2 Lactation Accommodation In 2010, Congress amended the FLSA to require employers to provide employees with a reasonable amount of unpaid break time in a private location (other than a bathroom) to express milk for their children of up to one year in ag e. 11 In so doing, Congress followed the lead of California, which since 2002 had entitled employees to take unpaid breaks to express milk in a private location (other than a toilet stall), in close proximity to the work area, unless this break time would “seriously disrupt the operations of the employer. ” 12 California then, in legislation effective in 2019, amended its statute to require that the lactation location be other than a “bathroom. ” 13 The California standard has always been far more lactation-friendly than any federal standard: California extends lactation-accommodation benefits to all employees, not just nonexempt employee s. 14 And in 2019 California went further. Inspired by the San Francisco ordinance, the Legislature passed a new version of mandatory lactation accommodation, requiring employers to provide a lactation room for employees that meets these criteria: not a bathroom; close to the employee’s work area; shielded from view; free from intrusion while the employee is lactating; safe, clean, and free of hazardous materials; containing a surface to place a breast pump and personal items; containing a place to sit; and having access to electricity or alternative devices (e.g., extension cords, charging stations) needed to operate an electric or battery-powered breast pump. While a sink and refrigerator (or