Newly-amended state regulations effective December 30, 2012 have expanded the definition of “disabled by pregnancy.” The amended regulations now also expressly provide that a woman is “disabled by pregnancy” if she suffers from severe “morning sickness” or needs time off for: prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia, post-partum depression; childbirth; loss or end of pregnancy; or recovery from childbirth, loss or end of pregnancy. This list is not exhaustive. 

Employers may now be required to provide leave and/or an accommodation to a woman suffering from pregnancy-related conditions that it may not have previously accommodated, including conditions not expressly identified here.

Beyond expanding “disabled by pregnancy,” the amended regulations require employers to reasonably engage in the interactive process, and potentially accommodate employees “affected by pregnancy.” Employers may be required to change the work environment or change the way a job is customarily done to enable a pregnant employee to perform the essential functions of a job. This may include:

1. Modifying work practices or policies;

2. Modifying work duties;

3. Modifying work schedules to permit earlier or later hours, or to permit more frequent breaks (e.g., to use the restroom);

4. Transferring the employee;

5. Providing furniture (e.g., stools or chairs) or acquiring or modifying equipment or devices; or

6. Providing a reasonable amount of break time and use of a room or other location in close proximity to the employee’s work area to express breast milk in private as set forth in Labor Code section 1030, et seq.

The amended regulations make it unlawful for an employer to deny a reasonable accommodation request from an employee “affected by pregnancy” if:

1. The employee’s request stems advice from her health care provider that a reasonable accommodation is medically advisable; and

2. The requested accommodation is, in fact, reasonable. Whether an accommodation is reasonable is a factual, case-by-case determination. To be considered are such factors as the employee’s medical needs, the duration of the needed accommodation, the employer’s legally permissible past and current practices, and other such factors, subject to an overall totality of the circumstances test similar to that made in connection with other types of disabilities.  

Because the amended regulations expand the definition of “disabled by pregnancy” and the employer’s obligation to reasonably accommodate employees “affected by pregnancy,” each request for an accommodation, transfer, or time off by an employee who was or is pregnant needs to be carefully evaluated under the totality of the circumstances to ensure compliance with the amended regulations.

This blog only addresses the amendments to the definition of “disabled by pregnancy” and reasonable accommodation. For more information on all of the changes made to the regulations, see Cal. Code Regs. Tit. 2, §§ 7291.2 – 7291.18.