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Fashion Law 101: California Broadens the Protections for Pregnancy (Pun Intended)

Posted in The Business of Fashion

Guest post by Nancy Yaffe.  It originally appeared on Fox Rothschild’s California Employment Law blog.

We already know that California law for pregnant employees is much more generous than other states. Pregnant women here can get up to seven months of protected time off, with insurance benefits and reinstatement; that is up to four months off for pregnancy disability leave (PDL) in addition to twelve weeks off for baby bonding under the California Family Rights Act (CFRA).

But what happens if a woman is disabled by pregnancy and needs more than four months off? What if she is put on bed rest early in her pregnancy and uses her PDL pre-birth? The regulations still indicate that an employer “may” advance CFRA baby bonding leave pre-birth, so doesn’t that mean it is optional? Or what if she is not eligible for CFRA leave at all (perhaps she has not worked for a year or your company does not employ 50 people); are you safe to terminate her after four months of PDL?

One would think the answer to all of these questions would be YES, but alas, this is California after all.

A recent California Court of Appeal case (Sanchez v. Swissport) answers a big bold NO to all of these questions, and holds that four months of leave may not be enough.

Rather, the employer has a duty to engage in the interactive process under the California Fair Employment and Housing Act (FEHA), and may need to provide additional time off for a pregnant employee as a reasonable accommodation.

Notably, in the Sanchez case, the employee did not have a claim under PDL because she got four months off. Instead, the Court ruled that she could state a claim under the FEHA which governs disability leaves. A finite leave of more than four months could be a reasonable accommodation under the FEHA (even for a pregnancy related leave), and this employer had not met its obligation to engage in the interactive process on that issue prior to termination.

And lest we forget, failure to engage in the interactive process is a separate-and-distinct claim under the FEHA.

The lesson: Rights for pregnant women begin with PDL, but certainly do not end there.