In recent years, several laws have gone into effect in California that broaden protections and entitlements for new parents in the workplace. In light of recent developments, employers should review their parental leave and accommodation policies to ensure they are in compliance with California requirements. Read on for a description of the current landscape relating to California employees who are pregnant or have become new parents.
Pregnancy Leave. An employee of a company with five or more employees who is disabled as a result of pregnancy or the birth of a child can receive up to four months of Pregnancy Disability Leave (PDL) for the duration of the disability (as certified by the employee’s doctor), subject to certain requirements. As described below, employees who work for employers with 20 or more employees may be entitled to take up to 12 weeks of family leave to bond with their child, which commences after PDL has ended. Additionally, even after an employee has exhausted PDL and family bonding leave, an employer may be required to accommodate ongoing pregnancy-related disabilities under the federal Americans with Disabilities Act and/or California’s Fair Employment and Housing Act.
Accommodations Prior to Leave. Employees disabled by pregnancy may also be entitled to reasonable adjustments to their work environment before taking PDL. If necessary for employees to perform the essential functions of their positions, such adjustments could include longer or more frequent breaks, revised work schedules, modified job duties, or transfers to less strenuous positions. Employers should engage in an interactive process with employees who may be disabled by pregnancy just as they would for any employee with a disability. Dialogue is key. Employers should not unilaterally impose restrictions on or limit the job duties of a pregnant employee with a paternalistic notion of “protecting” the employee. Pregnant employees who are willing and able to continue working should be permitted to do so, with any necessary accommodations agreed upon through the interactive process.
Paid Family Leave (PFL). California was the first state to create a PFL program, which came into effect in July 2004. PFL is a state-administered program funded out of mandatory paycheck deductions with no cost to employers. The program provides employees with approximately 70% of their typical earnings when taking time off to care for a seriously ill family member or to bond with a new baby. Beginning on July 1, 2020, the program benefits have been extended from six weeks of paid leave to eight weeks, with the Legislature tasking the state with increasing coverage to six months of paid leave by 2022.
San Francisco Paid Parental Leave Ordinance (SFPPL). Pursuant to the SFPPL, which covers employers with 20 or more employees, covered employers must supplement the wages of eligible employees who are on a leave to bond with a new child for as long as they receive wage replacement benefits under California’s PFL program. The SFPPL ensures that, with the PFL benefit and the employer contribution, new parents are paid 100% of their weekly wages, up to a cap (which is currently set as $2,027.00). As discussed above, California will be increasing the duration of PFL from six weeks to eight weeks, which will require San Francisco employers to supplement eligible employees’ wages during the extended PFL period. Employers can require that employees use up to two weeks of vacation or paid time off during this eight-week period.
California’s Parental Bonding Leave Covers Smaller Employers. Enacted in 2018, the New Parent Leave Act (NPLA) extended parental leave benefits and protections afforded under the California Family Rights Act (CFRA) to employees of smaller California companies or for those working at remote facilities with low headcount. While the CFRA applies only to facilities with 50 or more employees, the NPLA provides up to 12 weeks of unpaid leave to bond with a new child to eligible employees working in facilities with only 20 to 49 employees. In addition to providing eligible employees with time off for bonding purposes, employees are afforded protections to return to their prior position free from retaliation once the leave ends.
Employer-Provided Paid Bonding Leave. Although not mandated outside of San Francisco, many employers elect to provide some paid bonding leave to employees who are new parents. Bonding leave benefits must be gender neutral. The U.S. Equal Employment Opportunity Commission (EEOC) takes the position that gender-specific policies constitute a form of sex discrimination. Although bonding leave policies should be gender neutral, pregnant employees may be provided additional paid or unpaid leave during the period they are disabled during pregnancy or post-partum.
Lactation Accommodations. For several years, California and federal law have required employers to provide nursing mothers with a reasonable amount of break time during the workday, and a private area other than a toilet stall, to express breast milk. Labor Code Section 1031, a new law modeled after San Francisco’s lactation accommodation ordinance, now mandates much more specific physical attributes of the designated lactation space. The law requires employers to provide employees (including part-time employees) needing to express breast milk with access to a private space (other than a bathroom) that (i) is in close proximity to the employee’s work area and shielded from view and intrusion, (ii) is safe, clean, and free of hazardous materials, (iii) contains a place to sit and a surface on which to place a breast pump and other personal items, and (iv) has electricity or a power source. A multi-purpose room will suffice for purposes of the statute, but it must be made available for lactation as needed. Nursing mothers must also be provided access to a refrigerator and sink in proximity to their work area. Designated lactation spaces may be temporary if operational, financial, or space limitations make the establishment of a permanent location unworkable. An employer that fails to provide reasonable break time or adequate lactation accommodations may be fined $100 per day. In addition, an employer may not discharge, discriminate, or retaliate against an employee for exercising rights under the lactation accommodation law. Finally, the new law requires employers to adopt a lactation accommodation policy that outlines employee rights, the process to request accommodations, acknowledges the employer’s obligation to respond to the accommodation request, and includes a statement about the employee’s right to file a complaint with the Labor Commissioner. The policy must be included in an employee handbook and must be distributed to new hires and those employees inquiring about parental leave.
If you have any questions about implementing these new laws, including how existing employment policies and practices need to be modified, please contact a member of Goodwin’s California Employment team.
Koray J. BulutPartner
Steven R. FeldsteinOf Counsel