A California appellate court has given employers yet another reason for caution in their handling of employees on pregnancy disability leave.  In Sanchez v. Swissport, Inc., B237761 (Feb. 21, 2013), the Second District Court of Appeal confirmed that disability discrimination laws augment employee rights under California’s Pregnancy Disability Leave Law (PDLL), which in practical terms means that employers may be required to grant an employee leave beyond that required under the PDLL, the California Family Rights Act (CFRA) or the Family and Medical Leave Act (FMLA) as a reasonable accommodation of a pregnancy-related disability.

The plaintiff in Sanchez had been diagnosed with a high-risk pregnancy and went out on an approved leave, using her accrued vacation time and available leave under the PDLL and CFRA.  However, when the employee’s available leave expired prior to the scheduled delivery date, the employer terminated her employment. The employee sued claiming that the disability discrimination laws required the employer to consider additional leave as a reasonable accommodation of her pregnancy-related disability. The employer sought a dismissal of the complaint on the basis that because it had provided all leave mandated by the PDLL and CFRA, and the employee was not able to perform the essential duties of her job even with accommodation, the termination was proper.

The appellate court reversed the trial court’s dismissal of the complaint, finding the employer’s position untenable on multiple grounds.  First, the court noted that the PDLL expressly makes its remedies “in addition” to those remedies available under Fair Employment and Housing Act (FEHA).  (Gov. Code §12945, subd. (a).)  Second, the PDLL expressly provides its provisions are not to be construed to affect or diminish rights under FEHA, including “the coverage of….a medical condition related to pregnancy.” (Gov. Code §12945, subd. (b).) Third, as case law already recognizes that employers may be required to grant leave as a reasonable accommodation for other qualifying disabilities, denying the same accommodations to a woman disabled by pregnancy would be anomalous, and not consistent with either the express terms of the PDLL, or implementing regulations.  As the employer (allegedly) knew the employee’s pregnancy-related disability would be resolved shortly after giving birth, the court found that the employee had adequately alleged causes of action for disability discrimination, failure to accommodate and failure to engage in the interactive process.

Sanchez v. Swissport, Inc. resolves any lingering doubt as to whether FEHA may require an employer to grant leave as a reasonable accommodation of a pregnancy-related disability.  As simple as it may sound, the practical impact of the decision is significant.  Basically, even where an employee has no available leave, if the employee requests leave as a result of a pregnancy-related disability, a covered employer must engage the employee in the interactive process to determine an appropriate accommodation, including potentially keeping the employee’s job open until the disability abates.  In fact, the duty to engage in the interactive process may arise even in the absence of a formal request, if the employer knows of the employee’s disability.  Of course, the employer still has various defenses available to it, such as undue hardship, but the employer who fails to proactively engage the disabled employee to explore a reasonable accommodation opens itself to liability on several grounds, including failure to engage in the interactive process, failure to accommodate and disability discrimination.  Any employer who fails to initiate the process does so at its peril.

If you have any questions regarding this posting, please contact William Gutierrez at: wgutierrez@carr-mcclellan.com or (650) 342-9600.