In California, employees disabled by pregnancy are entitled to up to four months of job-protected leave during any period in which they are disabled. The leave has not length of service requirement. There is no employer job-site requirement either. And those employees eligible for California Family Rights Act leave may have up to 12 weeks of that for baby bonding. The California Family Rights Act does not include pregnancy disability as a "serious health condition." So, time under that law does not run during pregnancy disability. Get it? If not, don't feel like you're the Lone Ranger. It's one of California's most confusing sets of laws.
So, what happens when an employee is disabled by pregnancy and uses up all four months of PDL before delivering the baby, or before she is able to return to work? We know the 12 weeeks of FMLA leave (if employee is eligible) are exhausted, because FMLA does run during pregnancy disability. The CFRA time did not start to run yet unless the employer and employee agree, because pregnancy disability is not a covered condition under CFRA. Can it be that a worker in California could run out of medical leave and be denied reinstatement?
Nah. The PDL statute's four months of leave, and the potential for seven months of combined PDL/CFRA, are not the last word on leaves for those with long periods of pregnancy disability. How can this be?
Swissport gave its employee, Ana Sanchez, nineteen weeks of leave. That's all the four months of PDL and then tacked on her unused vacation time. But Fuentes had not yet given birth. She was due in October. But, her leave exhausted in July, Swissport terminated her employment. Sanchez sued, claiming, among other things, that Swissport owed her more leave as a form of "reasonable accommodation" under California's anti-disability discrimination provisions contained in the Fair Employment and Housing Act. The trial court dismissed her case because Swissport had provided her with all statutory leave to which she was entitled.
Leave in excess of statute, however, can be a form of "reasonable accommodation" under disability discrimination law. Under California law it has to be reasonably definite in duration and effective, meaning that it is likely that at the end of a reasonably definite leave, the employee will be able to perform her essential job functions, with or without accommodation.
So, stautes collide; judges have to sort out the wreckage. Here, the Court of Appeal decided that the limiting language in the PDL statute does not "supplant" the general obligation to grant reasonable accommodation to an employee with a disability. That also means that the employee is not entitled to indefinite leave, or additional leave that would cause undue hardship. In this case, however, the employer discharged the employee for exceeding four months of leave, without any "interactive process" or attempt to accommodate.
The bottom line, then, is that most employees disabled by pregnancy will be entitled to leave until they recover from childbirth, unless the period of leave sought is indefinite, or undue hardship would result.
This case is Sanchez v. Swissport and the opinion is here.