Quirky Question #205, Pregnancy CA, Washington and Utah
We have employees in California, Washington and Utah where I understand there may be separate statutes protecting pregnancy disability leave and requiring up to sixteen (16) weeks of protected leave (as opposed to twelve (12) under FMLA). We terminated an employee in California for not returning after her sixteen (16) week leave and she is threatening to sue. Aren’t we on safe ground since we gave her the full amount (sixteen (16) weeks) of leave?
Answer: By Mike Droke and Gabrielle Wirth
This year in Sandberg v. Swissport confirmed that after an employer complies with California’s pregnancy disability laws (PDL) by providing 16 weeks of protected leave, if the employee continues to be disabled on account of her pregnancy, an additional leave of absence may be required to protect the employer from claims for failure to accommodate a disability under California’s Fair Employment and House Act. An extended leave of absence might be required as a reasonable accommodation absent of showing of undue hardship. The court reasoned that the remedies under PDL were meant to “augment rather than supplant, those set forth elsewhere in the FEHA”. This ruling was also supported by the new 2012 Pregnancy Disability Regulations which provide “At the end or depletion of an employees’ pregnancy disability leave, an employee who has a physical or mental disability (which may or may not be due to pregnancy, childbirth or related medical conditions) may be entitled to reasonable accommodations under California Code §12940.”
Note that Washington law provides for even more generous benefits. The Washington State Human Rights Commission Regulations against discrimination require employees with eight or more employees to provide a leave of absence for the entire period of time that she is sick or temporarily disabled because of pregnancy or childbirth. Additionally the State has a separate Family Leave Act which provides for an additional twelve (12) months leave which does not run until after her Pregnancy Disability Leave ends.
Utah does not provide for additional leave for pregnancy disability or family leave and employees must comply only with the Federal Pregnancy Disability Act which provides that employees with fifteen or more employees must offer the same time off to employees disabled on account of pregnancy and related medical conditions as it offers to employees with other temporary disabilities and up to twelve (12) weeks FMLA leave if the employer has fifty (50) or more employees within seventy five (75) miles and the employee has been employed for a year.
State laws in the area of accommodating pregnancy disability vary widely and change frequently. Contact your Dorsey lawyer for state specific questions.