Monthly Archives: February 2013

Pregnancy Leave in California

California has what are probably the most generous pregnancy and parental leave laws in the country. Employees are entitled to take a “reasonable period” of leave — up to four months — during the time when they are disabled by pregnancy, childbirth, or related conditions. This time off might run concurrently with an employee’s 12 weeks of allowed leave under the federal Family and Medical Leave Act (FMLA). However, it does not run concurrently with an employee’s right to take parental leave under the California Family Rights Act (CFRA). Leave for pregnancy-related disability is not covered by CFRA. Although this might at first glance sound ungenerous, the effect is the opposite: An employee who uses all four months of pregnancy disability leave is still entitled to 12 weeks of CFRA leave for parenting after the child is born.

And, California is one of only a handful of states that pay employees for this time off. California’s temporary disability insurance program, which covers pregnancy-related disability, pays employees up to 55% of their usual wages while they are unable to work due to pregnancy and childbirth. Once the employee has her child and recovers from giving birth, California’s paid family leave  (part of the temporary disability insurance program) kicks in, to pay benefits for six weeks of parental leave.

Last week, the California Court of Appeal for the Second District issued an opinion that might stretch these rights even further. The Court found that an employee who has used up her four months of pregnancy disability leave may be entitled to yet more time off, as a reasonable accommodation for a disability related to pregnancy. In this case (Sanchez v. Swissport), the employee had a very high risk pregnancy. She was put on bed rest almost eight months before her due date. Therefore, when she used up her four months of pregnancy disability leave, she was still months away from giving birth and finally getting out of bed. Her employer fired her after she exhausted her pregnancy disability leave and used up all of her accrued time off.

Sanchez sued, claiming that her employer fired her because of her pregnancy and should have given her additional time off as a reasonable accommodation for her disability. Although the trial court threw her case out, the Court of Appeal reinstated it. Even though the employer gave Sanchez the full four months of pregnancy disability leave required by law, the Court found that this fact didn’t conclusively defeat her claims. The right to pregnancy disability leave and the right to a reasonable accommodation are distinct: Fulfilling one doesn’t necessarily satisfy the other. As the Court pointed out, California’s Fair Employment and Housing Commission recently amended its pregnancy discrimination regulations to address this issue. (The regulation states that an employee who has used up her four months of pregnancy disability leave may yet be entitled to leave as a reasonable accommodation for a disability, whether or not that disability is related to her pregnancy.)

The Court of Appeal didn’t determine that Sanchez was entitled to additional leave: It decided only that she might be, and that she should have the opportunity to present facts supporting her claims. Her employer will also have this opportunity: It can argue, for example, that allowing Sanchez to take additional time off would pose an undue hardship, or that such an accommodation wouldn’t be “reasonable” under the circumstances. However, at least in the Second District of California (which includes Los Angeles), employers can no longer assume that a pregnant employee’s time off can be capped at four months of pregnancy disability leave plus three months of CFRA leave following childbirth for parenting.

President Obama’s Proposed Minimum Wage Increase

In last week’s State of the Union address, President Obama spoke of many things. Not shoes and ships and sealing wax, but immigration reform, proposals to stop gun violence, climate change, and energy policy. The proposal that seemed to get the most press afterwards, however, was his call to raise the minimum wage to $9 (from the current rate of $7.25 an hour) and tie further increases to the cost of living.

Perhaps one reason this got the most press is that it’s so concise. Unlike, for example, immigration reform or steps to halt climate change, raising the minimum wage is simple and straightforward. The details of the proposal are clear. No comprehensive plan is necessary, and there aren’t a lot of moving parts. Of course, that doesn’t mean the proposal is without controversy. The Chamber of Commerce has long opposed increases in the minimum wage, and other business groups have come out against any increases.

What would be the practical effect of the President’s proposal? Currently, 19 states and the District of Columbia require employers to pay a higher minimum wage than the federal rate of $7.25 an hour. As of today, however, only one state — Washington — has a minimum wage of at least $9. As a practical matter, this means wages would go up in virtually every state if the rate were raised all at once. (Except in cities that have their own higher minimum wages. In San Francisco, for example, employers must pay at least $10.55 an hour; where I work, in Berkeley, vendors with the city must pay at least $13.03 an hour with medical benefits, or $15.20 an hour without.)

Final FMLA Regulations Cover Veterans and More

On February 6, 2013, the Department of Labor issued its final regulations implementing statutory amendments to the FMLA. These regulations incorporate the amendments Congress passed in 2010. Among other things, the 2010 amendments:

  • tweaked the way eligibility and hours are calculated for flight crews
  • expanded the right to take qualifying exigency leave to cover not only employees with family members in the National Guard and Reserves, but also employees with family members in the regular armed forces, and
  • expanded the right to take military caregiver leave to cover not only employees with family members who were seriously injured while on active military duty, but also employees with family members who exacerbated a preexisting injury while on active duty and employees with family members who are veterans suffering from a serious injury incurred while on active duty.

About a year ago, the Department of Labor issued proposed regulations implementing these provisions and seeking input from the public on a few key issues, including how to implement the leave provision to care for a veteran. Rather than issuing proposed regulations on this topic, the Department decided to hold off until it had received comments and issued its final regulations. As a result, the Department delayed the effective date of this provision. Until it issued final regulations defining the key terms (including who qualifies as a veteran and what constitutes a serious injury for a veteran), the Department took the position that employers were not legally required to provide this type of FMLA leave.

That has now changed. As of the effective date of the final regulations (March 8, 2013), employers are now required to provide FMLA leave to employees who need time off to care for a family member who is a veteran and suffered a serious injury while on active duty.

The final regulations have changed military family leave in a few important ways:

  • Veterans defined. One of the reasons why Congress amended the FMLA was to allow time off for employees to care for family members who had served in the military and later manifested serious health problems, notably PTSD. The final regulations define “serious injury,” and make clear that injuries are covered whether they manifest before or after the veteran leaves the military. The veteran must have been in the military in the five years before the employee first takes FMLA leave. However, the time between the Congressional amendments (October 28, 2009) and the effective date of the final regulations (March 8, 2013) doesn’t count against this five-year limit. The Department excluded this time because employers weren’t required to give leave to care for an injured veteran during this period. 
  • Qualifying exigencies expanded. As required by Congress, the final rule expands qualifying exigency leave to cover not only family members who are members of the National Guard and Reserves, but also family members who are in the regular armed forces and are deployed to a foreign country. This type of leave is intended to allow employers to handle practical matters arising from a family member’s deployment. The final regulations make a few changes to this type of leave. For example, employees may take up to 15 days off for a family member’s rest and recuperation leave (the previous limit was five days). The final regulations also add a new type of qualifying exigency leave, to allow employees to take time off to make arrangements for a military family member’s parent who is incapable of self-care. For example, the employee might need to hire a caretaker for the parent, tour care facilities, and so on.

The Department of Labor has issued a helpful FAQ set on the final regulations.