Reasonable Accommodation and Transfers

Reasonable Accommodation and Transfers

A reasonable accommodation may be required when an employee is affected by pregnancy and needs a change in the work environment or job duties to enable her to perform the essential functions of her job. The employee only needs to be affected by pregnancy, not disabled by pregnancy, for reasonable accommodation and transfer requests to apply. The request for reasonable accommodation must be based on the advice from the employee’s health care provider. The requested accommodation must be reasonable. The “reasonableness” of a requested accommodation should be made on a case-by-case basis, and take into consideration factors such as the employee’s medical needs, the duration of the requested accommodation, and the employer’s past and current practices. The employer and the employee should engage in a good faith interactive process to address the employee’s request for reasonable accommodation. Reasonable accommodation may include, but is not limited to:

Modifying work practices or policies
Modifying work duties
Modifying work schedules to permit earlier or later hours
Permitting more frequent breaks
Providing furniture or acquiring or modifying equipment or devices
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

A request for reasonable accommodation does not impact or reduce the employee’s right to up to four months of pregnancy disability leave, unless the accommodation involves a reduction in work hours or intermittent leave. If the accommodation is a reduction in work hours or intermittent leave, the time missed is considered pregnancy disability leave, and may be deducted from the employee’s PDL. An employer may request a medical certification substantiating the need for reasonable accommodation.

Reasonable Accommodation Beyond PDL. An employee may continue to be disabled beyond the four months of pregnancy disability leave. Whether the disability is related to the pregnancy or to another physical or mental disability, reasonable accommodation in the form of an extension of leave may be required. Recently enacted PDL regulations specifically provide that the right to four months of pregnancy disability leave is “separate and distinct” from the right to take a leave of absence as a form of reasonable accommodation for a disability.

“At the end or depletion of an employee’s pregnancy disability leave, an employee who has a physical or mental disability (which may or may not be due to pregnancy, childbirth, or related medical conditions) may be entitled to reasonable accommodation under Government Code section 12940.” The duty to accommodate an employee and provide additional leave under FEHA needs to be determined on a “case-by-case basis” and “is not diminished by the employee’s exercise of her right to pregnancy disability leave.”

In a 2013 case, a California court of appeal reached the same conclusion as the regulations, ruling that an employee who used her entire four months of PDL may still be entitled to additional leave under the Fair Employment and Housing Act’s (FEHA) separate provisions requiring reasonable accommodation of disabilities and protection from pregnancy discrimination.

In Sanchez v. Swissport, Inc., an employee had a high-risk pregnancy requiring bed rest for the entire duration of the pregnancy. The employee took the entire amount of PDL allowed by law, her available leave under the California Family Rights Act (CFRA) and accrued vacation. After using all this time, she still had approximately three months until the anticipated October delivery of her baby.

Swissport terminated her in July. The employee filed a lawsuit against the company, alleging pregnancy discrimination and failure to accommodate. She claimed that Swissport did not contact her or try to engage in a good faith interactive process to determine whether there were any available accommodations for her continuing disability, including extension of her leave.

The court of appeal ruled that an employee who is disabled by pregnancy is entitled to the four-month PDL leave entitlement in addition to other rights afforded by FEHA, including the right to a reasonable accommodation of her disability so long as the reasonable accommodation does not impose an undue hardship on her employer. This reasonable accommodation may include an extended leave of absence beyond PDL.

The court also noted that the employee is entitled to FEHA’s protections against discrimination. California law prohibits employment discrimination on the basis of sex, including pregnancy, childbirth, breastfeeding and related medical conditions.

Employers should not rule out the possibility of additional leave time for an employee who has exhausted pregnancy disability leave (PDL) but is still unable to work.

When a Pregnant Employee Requests a Transfer. If you have a policy, practice or collective bargaining agreement that requires or authorizes transfers for temporarily disabled employees to “light duty” positions for the duration of a disability (whether work-related or not), you must provide the same for an employee affected by pregnancy who requests a transfer. You must grant the request of an employee affected by pregnancy to transfer to another position if the employee’s health care provider advises that the transfer is medically advisable and if the transfer can be reasonably accommodated. You can accommodate a transfer request by transferring another employee, but there is no obligation to do so.
You are not required to:

Create additional employment that you would not otherwise have created
Discharge another employee
Violate a collective bargaining agreement
Transfer another employee with more seniority
Promote or transfer any employee not qualified to perform the new job

An employer may request a medical certification substantiating the need for the transfer.

When an Employer Requires a Pregnant Employee to Transfer. If it is medically advisable, because of pregnancy, for an employee to take intermittent leave or leave on a reduced work schedule, you can require the employee to transfer temporarily to an available alternative position that meets the employee’s needs.

This alternative position must have the equivalent rate of pay and benefits.
The employee must be qualified for the position.
The position must better accommodate the employee’s leave requirements than her regular job.
The alternative position need not consist of equivalent duties. Transfer to an alternative position can include altering an existing job to better accommodate the employee’s need for intermittent leave or a reduced work schedule.

When the employee’s health care provider certifies that there is no further medical advisability for a transfer, intermittent leave or leave on a reduced work schedule, the employer must reinstate the employee to her same or comparable position.