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California’s Department of Fair Employment and Housing has been holding hearings regarding legal requirements that employers accommodate employees who are pregnant or suffer medical conditions following childbirth. The state’s pregnancy discrimination laws — already the country’s toughest — would become more so. Laura Reathaford, special employment law counsel in Proskauer Rose’s Los Angeles office, talked to The National Law Journal about the rules changes and the prospect of additional litigation in California. Reathaford joined the firm earlier this month from Seyfarth Shaw, where she was a leader in the California class action group. The remarks below have been edited for length and clarity. National Law Journal: What are the most notable changes in the rules that are being proposed? Laura Reathaford: What stands out to me is the inclusion of a number of pregnancy-related conditions that are now enumerated in the regulations. For example, lactation is now a pregnancy-related condition. By putting in these particular regulations, it provides women who need to use a breast pump with greater protections that they otherwise wouldn’t have. NLJ: How is using a breast pump a pregnancy related issue? LR: These regulations do not simply cover pre-child birth. These cover conditions that are related to pregnancy. So some of the conditions that are evident, or listed, as disabled-by-pregnancy now include someone who is suffering from morning sickness, prenatal or postnatal care, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, child birth, loss or end of pregnancy or recovery from childbirth. NLJ: Are these conditions in which an employer must provide leave from work? LR: Not necessarily leave, but an accommodation. Accommodation could be leave, it could be a transfer to another department, it could be increased rest breaks or it could be lighter duties, depending on the nature of the work. NLJ: California’s laws already are very friendly to employees. What is new on this list and most alarming to employers? LR: Lactation, for example, is an addition, as is gestational diabetes, hypertension and preeclampsia. It’s a non-exhaustive list that at times the case law interprets and may agree or disagree would be considered a pregnancy-related condition. There was just a case reported that came out in Texas where a court found lactation was not related to pregnancy. In California, these regulations demonstrate intent to codify what is believed to be pregnancy-related conditions, whereas in other states the same interpretation might not apply. NLJ: Have other states tried to make these conditions part of their pregnancy discrimination laws? LR: I have not heard of these conditions being enumerated in statutes in other states. It doesn’t mean they’re not there, but California really is very employee-friendly in this area. An analysis of these regulations could lead someone to conclude that, by protecting a medical condition that results from the loss of a pregnancy, someone who is trying to get pregnant and is unsuccessful and will try again will be covered by these regulations. In fact, in other portions of the regulations, employees who are perceived to be pregnant are protected from retaliation. So, certainly, if someone were to learn of an employee trying to get pregnant using IVF [in vitro fertilization], an assumption could be made they were pregnant. NLJ: How do these new rules compare to what already is in place in California? LR: California has regulations that apply to disabilities that are not pregnancy-related. And those regulations give the employer a defense where, if the employer cannot reasonably accommodate someone’s disability because it would pose an undue hardship on the employer’s operations, then the employer is entitled to that defense and, after engaging in a discussion with an employee, can tell the employee, “Look, I’m sorry, I can’t accommodate you because it’s going to impede our operations.” These regulations do not allow for that employer defense of undue hardship, nor do they outline an interactive process between an employer and employee. That doesn’t mean an employer can’t discuss it with an employee. But it limits the defenses an employer can raise, and some employers may feel hamstrung by these regulations because a particular accommodation for a pregnancy-related disability may in fact adversely affect the employer’s operations, and there’s nothing an employer can do. NLJ: Why would it be so hard for employers to accommodate employees with such medical conditions? LR: Let’s take lactation. First of all, as the Texas case demonstrates, not everybody sees lactation as being related to pregnancy. If you have an employer that has the perspective that lactation is not related to pregnancy, and is unaware of these regulations, he could violate the law by not accommodating an employee’s request for time for lactation and be subject to a lawsuit and administrative charge from the Department of Fair Employment and Housing. Think about the transportation industry, where employees are charged with sticking to strict hauling and cargo schedules. If there’s a time deadline and the employee is having to increase rest time for lactation or other pregnancy-related issues, that could cause a serious burden on their operations. NLJ: How could this lead to more lawsuits in California? LR: Most of the lawsuits in this area seem to come from an employee who’s been on leave for pregnancy-related issues and failed to return from leave. If an employee who is pregnant is disabled due to pregnancy, or in this case an issue related to pregnancy, he or she can get up to four months of leave. The employee could still be suffering from this disability after the four months have expired, and they don’t show up for work or effectively communicate to their employer why they can’t come back to work. Some employers simply believe since the four months are up, the employee has abandoned her job and can be terminated. And that’s not always the case. I’m not sure that will change. But there’s the potential for increased litigation in the area of what is a reasonable accommodation for these types of conditions. In addition to just requesting a leave of absence, employees who experience these conditions may ask for reduced work schedules, transfer of job duties and perhaps light duty.

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