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

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 51 1 DFEH regulations define the four months as the equivalent of what the employee works in four months (17.33 weeks). If an employee’s hours vary from month to month, then the average number of hours per week is used, calculated by looking back for 17.33 weeks. 2 Cal. Code Regs §§ 11042(a)(1), 11035( l ). 2 DFEH regulations define pregnancy-related conditions to include morning sickness, preeclampsyia, pre- and post-natal care, and post- partum depression. 2 Cal. Code Regs § 11035(f). 3 Gov’t Code § 12945(a)(1). 4 2 Cal. Code Regs § 11043(a). 5 Sanchez v. Swissport, Inc. , 213 Cal. App. 4th 1331 (2013) (employee placed on bed rest during most of her pregnancy, and then terminated after 19 weeks of pregnancy leave—three months before her due date—may have been entitled to entitled to additional, disability leave, under FEHA, if the employer could not show that the extended leave would have imposed an undue hardship on the company); 2 Cal. Code Regs § 11047. 6 Gov’t Code § 12945(a)(2)(C). 7 2 Cal. Code Regs § 11041(c). The position to which an employee is transferred must have the equivalent pay and benefits as the employee’s regular job. 8 Gov’t Code § 12945(a)(2)(A). Employers may recover from employees the premium paid to maintain their coverage during a leave to the extent that (1) employees fail to return to work after the pregnancy disability leave and (2) the failure to return from leave is for a reason other than either (a) taking leave under the California Family Rights Act or (b) the continuation, recurrence, or onset of a condition that entitles the employee to a pregnancy disability leave or other circumstances beyond the employee’s control. 9 An even longer leave could be required if pregnancy-related conditions require further leave under the reasonable-accommodation provisions of FEHA. See Sanchez v. Swissport, Inc. , 213 Cal. App. 4th 1331 (2013); 2 Cal. Code Regs § 11047. 10 Gov’t Code § 12945(a)(4). 11 29 U.S.C. § 207(r)(1) (employee who needs to express milk “for her nursing child for 1 year after the child’s birth” is entitled to (a) reasonable break time and (b) a private place, other than a bathroom, that is free from intrusion). 12 Lab. Code §§ 1030-1032. 13 AB 1976, 2018 bill amending Lab. Code § 1031(deleting “toilet stall” and inserting “bathroom”). 14 See, e.g., Gonzales v. Marriott Int’l, Inc ., 142 F. Supp. 3d 961 (C.D. Cal. 2015) (denying motion to dismiss gestational surrogate’s claims for failure to accommodate and discrimination where she expressed milk for the child she delivered for several months and then continued to express milk for her own health benefits and for donation purposes). 15 SB 142, 2019 bill amending Lab. Code §§ 1030, 1031, 1033, and adding Lab. Code § 1034. 16 Id. 17 Lab. Code § 1033(b), (c) (noting that Labor Commissioner can seek civil penalties for violations). 18 See, e.g., Gonzales v. Marriott Int’l, Inc ., 142 F. Supp. 3d 961 (C.D. Cal. 2015) (denying motion to dismiss gestational surrogate’s claims for failure to accommodate and discrimination where she expressed milk for the child she delivered for several months and then continued to express milk for her own health benefits and for donation purposes). 19 San Francisco Lactation in the Workplace Ordinance, San Francisco Police Code Article 331, https://codelibrary.amlegal.com/codes/san_francisco/latest/sf_police/0-0-0-49176 (visited May. 26, 2022). 20 An employer that is engaged in any business or enterprise in California and directly employs five or more employees within any state of the United States, District of Columbia, or any U.S. territory. There is no requirement that the five employees work at the same location or work full time. 2 Cal. Code Regs § 11087(d). 21 12945.2(a). SB 1383, 2020 bill amending Gov’t Code § 12945.2 to remove geographical eligibility requirement. 22 SB 1383, 2020 bill amending Gov’t Code § 12945.6 and amending, repealing, and adding Gov’t Code § 12945.2. 23 Gov’t Code § 12945.2. Special eligibility rules apply to employees working for an air carrier as a flight deck or cabin crew member: they are eligible if they have 12 months of service and meet certain other requirements. AB 1748, 2019 bill amending Gov’t Code § 12945.2 and adding § 12945.2(u). This amendment conformed CFRA with FMLA eligibility requirements. SB 1383 is the 2020 bill that further amended Gov’t Code § 12945.2, and the air carrier provisions are now in § 12945.2(r). 24 Gov’t Code § 12945.2 SB 1383, 2020 bill amending Gov’t Code § 12945.2(b)(4)(D) to add new qualifying exigency leave. 25 Gov’t Code § 12945.2. SB 1383, 2020 bill amending Gov’t Code § 12945.2(b)(4)(B) to add new covered family members (grandparents, grandchildren, and siblings) and revising definition of child to remove age limitations. 26 AB 1033, amending Gov’t Code § 12945.2(b)(11) to add “parent-in-law” to the definition of “parent.” 27 On two occasions, an employee has a right to take intermittent CFRA bonding leave of less than two weeks’ duration. 2 Cal. Code Regs § 11090(d). 28 See generally 2 Cal. Code Regs § 11091(b)(2). 29 Gov’t Code § 12945.2(q) (“It shall be an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.”). This legislation aims to incorporate parallel restrictions in the federal FMLA. 30 Lares v. Los Angeles County Metro. Transp. Auth. , 56 Cal. App. 5th 318 (2020).