Vollständiges Transkript von Getting It Right: Navigating Pregnancy Leave and Accommodations Under California

00:02:14.969 mostly because it would probably be a little 00:02:14.969 --> 00:02:19.349 bit too dry. So if you have questions, please 00:02:19.349 --> 00:02:21.969 use the Q &A function, and I'm happy to answer 00:02:21.969 --> 00:02:28.610 those after the presentation. So just a general 00:02:28.610 --> 00:02:30.569 disclaimer that this is only for informational 00:02:30.569 --> 00:02:33.449 purposes. I'm not providing legal advice today. 00:02:34.090 --> 00:02:39.050 and this is attorney advertising. Okay, so today 00:02:39.050 --> 00:02:41.789 we are going to talk about quite a few areas 00:02:41.789 --> 00:02:44.909 of touching on this topic. So I'm going to start 00:02:44.909 --> 00:02:48.129 with pregnancy -related discrimination. The Pregnant 00:02:48.129 --> 00:02:52.849 Workers Fairness Act will spend quite a lot of 00:02:52.849 --> 00:02:56.310 time on the PWFA. It's been a big change in the 00:02:56.310 --> 00:02:59.530 law in the past few years and it's an area where 00:02:59.530 --> 00:03:02.960 a lot of employers get tripped up. Also, I'll 00:03:02.960 --> 00:03:05.360 talk about accommodations under the Fair Employment 00:03:05.360 --> 00:03:08.680 and Housing Act, which is California state law, 00:03:09.060 --> 00:03:11.919 pregnancy -related leaves, state leave and disability 00:03:11.919 --> 00:03:14.939 benefits, retaliation based on pregnancy and 00:03:14.939 --> 00:03:17.599 related conditions. We'll touch a tiny bit on 00:03:17.599 --> 00:03:20.400 lactation accommodations. And then I'll talk 00:03:20.400 --> 00:03:23.379 about avoiding common employer mistakes and practical 00:03:23.379 --> 00:03:28.240 guidance for California practitioners who advise 00:03:28.240 --> 00:03:34.960 both employers and employees. So pregnancy -related 00:03:34.960 --> 00:03:40.000 discrimination is an area that has federal protection 00:03:40.000 --> 00:03:44.500 and state protection. The federal version is 00:03:44.500 --> 00:03:47.419 the Pregnancy Discrimination Act. That has been 00:03:47.419 --> 00:03:49.639 around for quite a while. So that was an amendment 00:03:49.639 --> 00:03:53.400 to Title VII. It was enacted in 1978. And it's 00:03:53.400 --> 00:03:55.659 pretty broad. It applies to employers with 15 00:03:55.659 --> 00:03:59.740 or more employees. So most of the employer clients 00:03:59.740 --> 00:04:03.009 it'll apply to. It prohibits discrimination based 00:04:03.009 --> 00:04:05.629 on pregnancy, childbirth, or related medical 00:04:05.629 --> 00:04:09.210 conditions. The related medical conditions really 00:04:09.210 --> 00:04:14.009 are pregnancy and childbirth adjacent. So things 00:04:14.009 --> 00:04:19.209 like disability related to pregnancy, miscarriage, 00:04:19.310 --> 00:04:21.449 things like that that will relate to pregnancy. 00:04:23.269 --> 00:04:25.170 The law mandates that protected employees must 00:04:25.170 --> 00:04:28.050 be treated the same as similarly situated non 00:04:28.050 --> 00:04:31.079 -pregnant employees. And it covers all aspects 00:04:31.079 --> 00:04:33.819 of the employment relationship. So hiring, firing, 00:04:34.100 --> 00:04:37.879 pay, transfer, promotion, et cetera. It does 00:04:37.879 --> 00:04:39.819 require equal treatment, but it doesn't require 00:04:39.819 --> 00:04:42.980 accommodation of pregnancy. That is required 00:04:42.980 --> 00:04:45.220 under a different law, which we'll get into shortly. 00:04:46.509 --> 00:04:50.810 This law, the PDA, is enforced by the EEOC. And 00:04:50.810 --> 00:04:52.790 under federal law, you have to have a right to 00:04:52.790 --> 00:04:55.089 sue letter before you can file civil action. 00:04:58.629 --> 00:05:02.730 So for California protections, we have the Fair 00:05:02.730 --> 00:05:06.389 Employment and Housing Act. And this is broader. 00:05:06.850 --> 00:05:09.209 So it applies to employers with five or more 00:05:09.209 --> 00:05:12.189 employees instead of 15. It's similar in terms 00:05:12.189 --> 00:05:15.370 of what it prohibits, although it includes breastfeeding 00:05:15.370 --> 00:05:18.050 and lactation. So it's, again, prohibiting that 00:05:18.050 --> 00:05:21.509 discrimination on the basis of pregnancy, childbirth, 00:05:21.889 --> 00:05:23.889 breastfeeding, lactation, or related medical 00:05:23.889 --> 00:05:27.970 conditions. It also is broader in that it includes 00:05:27.970 --> 00:05:30.730 protection for fertility and reproductive health 00:05:30.730 --> 00:05:34.509 decisions. This is a fairly new development in 00:05:34.509 --> 00:05:37.310 state law. We're seeing this development, frankly, 00:05:37.449 --> 00:05:39.610 across the country, but California was on the 00:05:39.610 --> 00:05:42.250 vanguard of including fertility and reproductive 00:05:42.250 --> 00:05:46.829 health in that discrimination umbrella. FIHA, 00:05:46.930 --> 00:05:50.069 just like the PDA, prohibits adverse actions 00:05:50.069 --> 00:05:53.680 relating to termination, demotion. reduction 00:05:53.680 --> 00:05:56.879 in compensation, failure to promote, et cetera. 00:05:57.279 --> 00:06:00.779 Employees can file claims through the CRD, the 00:06:00.779 --> 00:06:03.240 California Civil Rights Department, or they can 00:06:03.240 --> 00:06:07.399 go directly to court. California generally provides 00:06:07.399 --> 00:06:10.540 stronger remedies. So under the federal law, 00:06:11.300 --> 00:06:14.600 there can be a cap on compensatory and punitive 00:06:14.600 --> 00:06:18.199 damages. Under FEHA, no such cap. There's a three 00:06:18.199 --> 00:06:21.160 -year statute of limitations. and a one -year 00:06:21.160 --> 00:06:23.819 statute of limitations from the issuance of a 00:06:23.819 --> 00:06:27.139 right to sue notice by the Civil Rights Department. 00:06:28.410 --> 00:06:31.550 So you can kind of see that this is quite a bit 00:06:31.550 --> 00:06:35.610 broader than PDA. It's got a lower employee threshold. 00:06:36.129 --> 00:06:38.949 It's got a broader scope

of protected characteristics, 00:06:39.269 --> 00:06:41.529 a longer limitations period, and then that potentially 00:06:41.529 --> 00:06:46.430 higher damages because there's no cap. We have 00:06:46.430 --> 00:06:49.410 seen the CRD actively investigating pregnancy 00:06:49.410 --> 00:06:55.029 discrimination claims recently. They do go after 00:06:55.029 --> 00:06:57.670 employers that violate the FIHA with respect 00:06:57.670 --> 00:07:00.129 to pregnancy. And so it is something we're seeing 00:07:00.129 --> 00:07:03.230 enforcement of. Same at the EEOC. We're seeing 00:07:03.230 --> 00:07:09.410 a pretty steady group of EEOC. litigation that 00:07:09.410 --> 00:07:11.850 pertains to the Pregnancy Discrimination Act 00:07:11.850 --> 00:07:13.790 and then the Pregnant Workers Fairness Act, which 00:07:13.790 --> 00:07:18.019 we'll talk about in just a moment. So I'm going 00:07:18.019 --> 00:07:19.920 to spend most of my time today, like I mentioned, 00:07:20.060 --> 00:07:22.519 on the Pregnant Workers Fairness Act because 00:07:22.519 --> 00:07:27.819 it's been such a big shift for employees, employers, 00:07:28.160 --> 00:07:31.519 for everyone. So this law really, it was passed 00:07:31.519 --> 00:07:34.759 a few years ago in 2022. It is a federal law 00:07:34.959 --> 00:07:39.379 and The purpose of this is really to ensure that 00:07:39.379 --> 00:07:42.560 employees can receive accommodation for pregnancy 00:07:42.560 --> 00:07:45.819 -related conditions. So some in the audience 00:07:45.819 --> 00:07:48.680 may be familiar with the Americans with Disabilities 00:07:48.680 --> 00:07:51.379 Act and the accommodations required for folks 00:07:51.379 --> 00:07:54.480 with disabilities under that law. This is akin 00:07:54.480 --> 00:07:56.800 to that in some ways, and we'll talk about the 00:07:56.800 --> 00:08:00.300 differences. But this also is a law that separately 00:08:00.300 --> 00:08:04.620 from the ADA provides for accommodations, reasonable 00:08:04.620 --> 00:08:08.879 accommodations. Employers that are covered, and 00:08:08.879 --> 00:08:11.759 that's most employers, do have to provide accommodations 00:08:11.759 --> 00:08:15.800 for what the law terms known limitations related 00:08:15.800 --> 00:08:17.920 to pregnancy, childbirth, and related medical 00:08:17.920 --> 00:08:20.079 conditions. I'll talk about what that means in 00:08:20.079 --> 00:08:23.279 just a moment. But these limitations can be either 00:08:23.279 --> 00:08:27.120 physical or mental. And again, just like the 00:08:27.120 --> 00:08:31.420 PDA, the PWFA is enforced by the Equal Employment 00:08:31.420 --> 00:08:36.559 Opportunity Commission. So the conditions that 00:08:36.559 --> 00:08:40.019 are covered under that umbrella of pregnancy, 00:08:40.379 --> 00:08:43.100 childbirth, and related medical conditions by 00:08:43.100 --> 00:08:47.080 the PWFA include things like gestational diabetes, 00:08:47.720 --> 00:08:51.919 even carpal tunnel syndrome, migraines, all of 00:08:51.919 --> 00:08:53.919 the mental health conditions that could be associated 00:08:53.919 --> 00:08:56.519 with pregnancy, such as anxiety, depression, 00:08:57.159 --> 00:09:00.799 whether that's pre -partum, post -partum, breastfeeding, 00:09:00.980 --> 00:09:04.440 or related... issues with breastfeeding, infertility, 00:09:05.000 --> 00:09:07.179 termination of pregnancy, and that would include 00:09:07.179 --> 00:09:13.899 miscarriage, stillbirth, or abortion. The damages 00:09:13.899 --> 00:09:17.759 and the remedies available under the PWFA are 00:09:17.759 --> 00:09:21.440 the same as under Title VII and the ADA. So these 00:09:21.440 --> 00:09:24.639 would include injunctive relief. So, you know, 00:09:24.879 --> 00:09:27.600 basically reinstating or instating the accommodation 00:09:27.600 --> 00:09:30.980 that wasn't provided, reinstatement of the employee 00:09:30.980 --> 00:09:35.509 in their role. back pay for lost wages, front 00:09:35.509 --> 00:09:39.009 pay for front lost wages going forward, compensatory 00:09:39.009 --> 00:09:41.529 damages for any out of pockets, and then punitive 00:09:41.529 --> 00:09:45.509 damages. So the difference between federal and 00:09:45.509 --> 00:09:47.950 state law as far as damages, and I've alluded 00:09:47.950 --> 00:09:52.450 to this a little bit, is that like the ADA for... 00:09:52.480 --> 00:09:56.659 accommodation claims under the PWFA, money damages 00:09:56.659 --> 00:09:59.700 can be limited if the employer shows good faith 00:09:59.700 --> 00:10:02.500 efforts to identify and provide a reasonable 00:10:02.500 --> 00:10:07.559 accommodation. So this will cap compensatory 00:10:07.559 --> 00:10:10.940 and punitive damages. It will not cap back pay 00:10:10.940 --> 00:10:13.759 or front pay, but it will cap those compensatory 00:10:13.759 --> 00:10:19.840 and punitive damages. Even if those efforts to 00:10:19.840 --> 00:10:22.110 accommodate were unsuccessful, if there are you 00:10:22.110 --> 00:10:25.889 know, good faith efforts shown, then that can 00:10:25.889 --> 00:10:31.370 be capped. This does not apply to disparate treatment 00:10:31.370 --> 00:10:35.450 claims. So this just applying to the PWFA accommodation 00:10:35.450 --> 00:10:39.669 claims. So if the employee alleges that she was 00:10:39.669 --> 00:10:43.090 fired or demoted or otherwise discriminated against 00:10:43.090 --> 00:10:46.309 on the basis of pregnancy or childbirth, rather 00:10:46.309 --> 00:10:48.429 than denied accommodation, the damages cap would 00:10:48.429 --> 00:10:52.320 not apply. And just to note that the injunctive 00:10:52.320 --> 00:10:56.159 relief and the back pay and the reinstatement 00:10:56.159 --> 00:11:01.169 still apply. The good faith element really requires 00:11:01.169 --> 00:11:04.610 an actual consultation with the employee. So 00:11:04.610 --> 00:11:07.210 the employer has to show that it engaged in an 00:11:07.210 --> 00:11:10.330 interactive process

with that employee, not just 00:11:10.330 --> 00:11:12.769 that it had a policy in place for accommodations 00:11:12.769 --> 00:11:16.649 and a unilateral determination by the employer 00:11:16.649 --> 00:11:20.309 would not satisfy the standard if there was no 00:11:20.309 --> 00:11:28.000 employee input. There are some differences, as 00:11:28.000 --> 00:11:31.480 I mentioned, between the PWFA and the Americans 00:11:31.480 --> 00:11:34.460 with Disabilities Act, and strictly sticking 00:11:34.460 --> 00:11:37.659 to the accommodations portion of the ADA. So 00:11:37.659 --> 00:11:41.659 the PWFA really only applies to pregnancy, childbirth, 00:11:41.700 --> 00:11:46.179 and related conditions, whereas under the ADA, 00:11:46.379 --> 00:11:49.159 you know, that applies to any qualifying disability. 00:11:49.639 --> 00:11:53.279 Under the PWFA, a huge difference is that the 00:11:53.279 --> 00:11:57.100 limitations from childbirth or pregnancy do not 00:11:57.100 --> 00:12:00.179 need to reach the level of disability before 00:12:00.179 --> 00:12:02.620 that employee would be eligible for an accommodation. 00:12:03.480 --> 00:12:06.080 Under the ADA, the employee has to be disabled 00:12:06.080 --> 00:12:08.940 or has to have a disability that substantially 00:12:08.940 --> 00:12:11.840 limits one or more major life activities for 00:12:11.840 --> 00:12:14.379 them to be eligible for those accommodations. 00:12:15.820 --> 00:12:19.399 Also, the difference is under the PWFA, temporary 00:12:19.399 --> 00:12:22.320 conditions related to pregnancy and childbirth 00:12:22.320 --> 00:12:24.539 could apply. So things like morning sickness, 00:12:25.480 --> 00:12:27.539 not something we traditionally think of as a 00:12:27.539 --> 00:12:29.639 disability and likely wouldn't be a disability 00:12:29.639 --> 00:12:33.139 under the ADA. That would be considered a limitation 00:12:33.139 --> 00:12:36.899 under the PWFA, entitling that employee to an 00:12:36.899 --> 00:12:40.590 accommodation. In addition, under the ADA, in 00:12:40.590 --> 00:12:42.970 order to receive a reasonable accommodation, 00:12:43.990 --> 00:12:46.370 you need to be able to perform the essential 00:12:46.370 --> 00:12:49.149 functions with or without a reasonable accommodation 00:12:49.149 --> 00:12:53.409 of your role. The PWFA, again, that's not a requirement. 00:12:54.850 --> 00:12:58.370 So I mentioned morning sickness. Other sort of 00:12:58.370 --> 00:13:01.809 limitations could also be things like endometriosis 00:13:01.809 --> 00:13:05.830 or infertility treatments. Again, it doesn't 00:13:05.830 --> 00:13:08.980 need to be a lifelong or even permanent disability, 00:13:09.240 --> 00:13:12.799 it can be a temporary disability. As far as the 00:13:12.799 --> 00:13:16.279 essential functions requirement, so under the 00:13:16.279 --> 00:13:21.019 PWFA, unlike the ADA, employees are still considered 00:13:21.019 --> 00:13:23.259 qualified for their role and therefore potentially 00:13:23.259 --> 00:13:27.360 eligible for an accommodation, even if they cannot 00:13:27.360 --> 00:13:29.639 perform one or more of the essential functions 00:13:29.639 --> 00:13:32.740 of their job, as long as the ability to do so 00:13:32.740 --> 00:13:36.360 or inability to do so is temporary. the essential 00:13:36.360 --> 00:13:38.480 function can be performed in the near future, 00:13:38.639 --> 00:13:42.120 so typically 40 weeks -ish, it's kind of the 00:13:42.120 --> 00:13:46.039 timeline that the EEOC looks at, and the inability 00:13:46.039 --> 00:13:48.659 to perform the essential function can be reasonably 00:13:48.659 --> 00:13:56.840 accommodated. So another key difference, and 00:13:56.840 --> 00:13:59.879 this touches on the, this is kind of the, it 00:13:59.879 --> 00:14:02.519 definitely touches on the definition of no limitations 00:14:02.519 --> 00:14:07.019 under the PWFA, and that is they per se reasonable 00:14:07.019 --> 00:14:10.549 accommodations under that law. So what that means 00:14:10.549 --> 00:14:13.809 essentially is that if an employee expresses 00:14:13.809 --> 00:14:17.210 a need or has a need for one of these four accommodations 00:14:17.210 --> 00:14:21.470 on the slide, that employee gets that accommodation. 00:14:21.590 --> 00:14:24.049 That is considered per se reasonable. There's 00:14:24.049 --> 00:14:27.149 no discussion with the employer as to whether 00:14:27.149 --> 00:14:30.070 it's reasonable or not. And in fact, there's 00:14:30.070 --> 00:14:34.570 no documentation required to prove that the accommodation 00:14:34.570 --> 00:14:37.509 is reasonable if it falls into one of these four 00:14:37.509 --> 00:14:42.220 categories. So these categories are carrying 00:14:42.220 --> 00:14:46.120 and drinking water as needed, additional restroom 00:14:46.120 --> 00:14:49.440 breaks, alternate sitting and standing, so the 00:14:49.440 --> 00:14:52.639 ability to sit or stand at their workstation 00:14:52.639 --> 00:14:56.100 or generally, and then breaks as needed to eat 00:14:56.100 --> 00:14:59.360 and drink. So these are pretty broad. And the 00:14:59.360 --> 00:15:02.940 purpose of these four per se reasonable accommodations 00:15:02.940 --> 00:15:06.090 is really to address the main accommodations, 00:15:06.330 --> 00:15:09.289 the most common accommodations that people need 00:15:09.289 --> 00:15:13.470 when they are pregnant. So these really are related 00:15:13.470 --> 00:15:16.730 to that. The breaks as needed to eat and drink 00:15:16.730 --> 00:15:19.509 are typically related to or can be related to 00:15:19.509 --> 00:15:21.629 gestational diabetes. So that's why those are 00:15:21.629 --> 00:15:25.879 included. There's not a really clear definition 00:15:25.879 --> 00:15:29.039 on the amount of break time that's permitted. 00:15:29.159 --> 00:15:32.580 It's really as needed. So it's a very broad entitlement. 00:15:33.419 --> 00:15:37.799 There was a case called the EEOC versus

Roundy 00:15:37.799 --> 00:15:41.340 Supermarkets. It's still pending. It was filed 00:15:41.340 --> 00:15:43.399 in March of this year in the Western District 00:15:43.399 --> 00:15:49.779 of Wisconsin. And essentially the employee made 00:15:49.779 --> 00:15:52.240 a request to keep a water bottle at her workstation 00:15:52.240 --> 00:15:55.879 to maintain her milk supply. So this was postpartum. 00:15:57.929 --> 00:16:01.129 Initially, Roundy's agreed to the request, but 00:16:01.129 --> 00:16:03.169 she was transferred then to a second store where 00:16:03.169 --> 00:16:05.950 the accommodation was denied. She made repeated 00:16:05.950 --> 00:16:08.169 requests for accommodation, and the company insisted 00:16:08.169 --> 00:16:10.769 that she sign a release authorizing it to access 00:16:10.769 --> 00:16:13.389 her medical records in order to provide that 00:16:13.389 --> 00:16:16.509 accommodation. And then, ultimately, Roundy's 00:16:16.509 --> 00:16:19.210 fired her rather than letting her keep the water 00:16:19.210 --> 00:16:22.269 bottle at her workstation. So it remains to be 00:16:22.269 --> 00:16:25.269 seen how this will shake out, but this was filed 00:16:25.269 --> 00:16:28.610 and initiated by the EEOC on the employee's behalf 00:16:28.610 --> 00:16:36.350 under the PWFA. So one of the common issues under 00:16:36.350 --> 00:16:40.190 the PWFA that comes up is whether the employee 00:16:40.190 --> 00:16:44.899 themselves is covered. So can an employee ask 00:16:44.899 --> 00:16:47.720 for pregnancy accommodation? Any employee? No, 00:16:47.899 --> 00:16:50.460 the PWFA only applies to the pregnant employee. 00:16:50.500 --> 00:16:52.779 It doesn't apply to their partner or spouse. 00:16:54.340 --> 00:16:58.039 So I've got a hypothetical here. So Carly has 00:16:58.039 --> 00:17:00.100 been employed with her company for a year and 00:17:00.100 --> 00:17:03.299 a half. She just told HR that her wife Liza is 00:17:03.299 --> 00:17:05.420 undergoing fertility treatments to have a baby. 00:17:06.039 --> 00:17:08.539 Carly wants to take time off for Liza's fertility 00:17:08.539 --> 00:17:11.079 appointments as a reasonable accommodation under 00:17:11.079 --> 00:17:15.680 the PWFA. Does HR have to approve Carly's request? 00:17:16.660 --> 00:17:20.670 The answer is no. So, again, the PWFA only applies 00:17:20.670 --> 00:17:24.109 to the person carrying the child or undergoing 00:17:24.109 --> 00:17:27.009 treatment, fertility treatments, and their respective 00:17:27.009 --> 00:17:30.650 employer. If, for example, Carly was undergoing 00:17:30.650 --> 00:17:33.049 fertility treatments, that arguably could be 00:17:33.049 --> 00:17:37.069 covered under the PWFA. However, just to point 00:17:37.069 --> 00:17:39.950 out, Carly may still be able to take paid time 00:17:39.950 --> 00:17:44.309 off or sick time to accompany Liza on her appointments, 00:17:44.329 --> 00:17:49.799 depending on whether she's got any accrued, depending 00:17:49.799 --> 00:17:53.720 on company policy, et cetera. She also could 00:17:53.720 --> 00:17:57.240 be able to take intermittent leave under the 00:17:57.240 --> 00:18:00.559 Family and Medical Leave Act, which could come 00:18:00.559 --> 00:18:05.000 into play here if Liza has a serious medical 00:18:05.000 --> 00:18:07.619 condition related to pregnancy. We would need 00:18:07.619 --> 00:18:09.299 more information to make that determination, 00:18:09.380 --> 00:18:11.720 but that could also be a potential entitlement. 00:18:14.150 --> 00:18:18.289 So under the PWFA, and a question that comes 00:18:18.289 --> 00:18:23.569 up a lot in my work is, can an employer require 00:18:23.569 --> 00:18:25.970 leave for a pregnant employee as a reasonable 00:18:25.970 --> 00:18:31.279 accommodation? So there are instances where an 00:18:31.279 --> 00:18:33.720 employer thinks, gosh, I don't know if this person 00:18:33.720 --> 00:18:35.779 is going to be able to perform the job, they're 00:18:35.779 --> 00:18:37.940 pregnant, why don't we just say that they can 00:18:37.940 --> 00:18:40.319 go on leave and we'll kind of leave it at that. 00:18:41.359 --> 00:18:44.569 So you cannot require that. So if another accommodation 00:18:44.569 --> 00:18:47.829 can be granted, the employer can't require that 00:18:47.829 --> 00:18:51.769 the employee take a leave of absence. So if the 00:18:51.769 --> 00:18:53.650 employer thinks the employee can't perform the 00:18:53.650 --> 00:18:56.650 job, but maybe some of those limitations are 00:18:56.650 --> 00:19:00.210 temporary, that person would fall under the PWFA 00:19:00.210 --> 00:19:03.890 and would not be able to force them to take a 00:19:03.890 --> 00:19:07.849 leave of absence. So here's another hypothetical. 00:19:08.400 --> 00:19:11.079 Paola is a medical assistant. She informed her 00:19:11.079 --> 00:19:13.440 employer a medical practice that she is pregnant. 00:19:14.039 --> 00:19:16.420 As recommended by her physician, she requested 00:19:16.420 --> 00:19:19.059 the ability to sit, take short breaks, or work 00:19:19.059 --> 00:19:22.049 part -time if needed. The medical practice told 00:19:22.049 --> 00:19:23.869 her that she would have to take unpaid leave 00:19:23.869 --> 00:19:26.049 instead and that they couldn't guarantee that 00:19:26.049 --> 00:19:28.289 they would rehire her or that she would be allowed 00:19:28.289 --> 00:19:31.809 to take lactation breaks after childbirth. Paola 00:19:31.809 --> 00:19:33.950 told the practice that she couldn't work without 00:19:33.950 --> 00:19:40.029 guaranteed breaks. Is this lawful? No. So this 00:19:40.029 --> 00:19:44.049 conduct would violate the PWFA and the ADA. Leave 00:19:44.049 --> 00:19:46.509 is considered an accommodation of last resort 00:19:46.509 --> 00:19:50.089 under both of those laws and it cannot be required 00:19:50.089 --> 00:19:53.490 if there's another reasonable accommodation possible. 00:19:54.720 --> 00:19:57.839 Also her

request specifically. So she requested 00:19:57.839 --> 00:20:01.839 the ability to sit, take short breaks, and work 00:20:01.839 --> 00:20:05.259 part -time. two of those really fall under those 00:20:05.259 --> 00:20:07.299 predictable assessments or known limitations 00:20:07.299 --> 00:20:11.480 under the PWFA. And then the PUMP Act, which 00:20:11.480 --> 00:20:14.019 we'll talk about briefly later, requires lactation 00:20:14.019 --> 00:20:18.160 accommodations. So these do definitely fall under 00:20:18.160 --> 00:20:22.680 both laws and the ADA. This hypothetical is actually 00:20:22.680 --> 00:20:26.079 a fictionalization of a real case, EEOC versus 00:20:26.079 --> 00:20:29.809 urologic specialists of Oklahoma. Parties in 00:20:29.809 --> 00:20:33.369 that case ultimately settled for $90 ,000 and 00:20:33.369 --> 00:20:36.630 injunctive relief. And then in June 2026, the 00:20:36.630 --> 00:20:40.849 EEOC brought suit in EEOC versus proper ventures 00:20:40.849 --> 00:20:45.069 in the district court in Washington DC. That's 00:20:45.069 --> 00:20:48.970 still pending. The defendants in that case were 00:20:48.970 --> 00:20:51.829 a restaurant chain, and they repeatedly questioned 00:20:51.829 --> 00:20:54.170 the employee about her maternity leave and voiced 00:20:54.170 --> 00:20:56.390 their concern over the employee working while 00:20:56.390 --> 00:20:59.619 pregnant. Then they pressured her to go on leave 00:20:59.619 --> 00:21:01.700 earlier than she had planned, and despite the 00:21:01.700 --> 00:21:03.960 fact that she was still able to work. And then 00:21:03.960 --> 00:21:06.500 they later fired her when she requested to extend 00:21:06.500 --> 00:21:09.599 her maternity leave by two weeks. So again, that 00:21:09.599 --> 00:21:16.059 is still pending. So also under the PWFA, I mentioned 00:21:16.059 --> 00:21:19.319 this before, but there are limited circumstances 00:21:19.319 --> 00:21:22.579 under this law when an employer can request a 00:21:22.579 --> 00:21:24.940 documentation for an employee's accommodation 00:21:24.940 --> 00:21:29.769 request. The rule is that you can require documentation 00:21:29.769 --> 00:21:32.769 to support an accommodation request when it is 00:21:32.769 --> 00:21:35.450 not per se reasonable. So when it doesn't fall 00:21:35.450 --> 00:21:38.910 under one of those four categories and the situation 00:21:38.910 --> 00:21:44.279 requires it. And so the seeking seeking documentation 00:21:44.279 --> 00:21:46.440 really must be reasonable under the specific 00:21:46.440 --> 00:21:50.700 circumstances. This means things like, you know, 00:21:50.740 --> 00:21:53.339 you see an employee is pregnant or you know they're 00:21:53.339 --> 00:21:56.160 pregnant and they request a larger uniform to 00:21:56.160 --> 00:21:59.279 accommodate their pregnancy. That is a situation 00:21:59.279 --> 00:22:02.240 where you really shouldn't be asking for documentation. 00:22:02.759 --> 00:22:05.640 In that situation, it's not reasonable because 00:22:05.640 --> 00:22:07.720 it's obvious that the person is going to need 00:22:07.720 --> 00:22:11.900 a larger uniform and they've requested it. Also, 00:22:12.319 --> 00:22:15.460 if the company wouldn't normally require documentation 00:22:15.460 --> 00:22:17.779 under existing policies, it shouldn't require 00:22:17.779 --> 00:22:22.880 it for a PWFA -related request. And the documentation 00:22:22.880 --> 00:22:25.359 really needs to be tailored to the pregnancy 00:22:25.359 --> 00:22:28.609 request and not you know, kind of doing a one 00:22:28.609 --> 00:22:32.190 -size -fits -all documentation form under the 00:22:32.190 --> 00:22:36.769 ADA. So there is a case, EEOC versus Wabash National 00:22:36.769 --> 00:22:42.529 Corporation, where the EEOC filed a lawsuit against 00:22:42.529 --> 00:22:45.650 the employer in part for requiring medical documentation 00:22:45.650 --> 00:22:49.750 for a pregnancy condition using their ADA reasonable 00:22:49.750 --> 00:22:55.819 accommodation request form. Obviously, you can 00:22:55.819 --> 00:22:59.140 request documentation if the request is not per 00:22:59.140 --> 00:23:05.200 se reasonable and the situation requires it, 00:23:05.200 --> 00:23:16.180 but it is limited. So another question that comes 00:23:16.180 --> 00:23:19.059 up is, are employers required to grant a request 00:23:19.059 --> 00:23:22.180 for remote work or other preferred accommodations 00:23:22.180 --> 00:23:24.539 as a reasonable accommodation? The answer is 00:23:24.539 --> 00:23:28.680 no. So just like the ADA, employers aren't required 00:23:28.680 --> 00:23:31.019 to grant a preferred accommodation if there are 00:23:31.019 --> 00:23:33.720 other equally effective accommodations available. 00:23:35.700 --> 00:23:37.779 As I mentioned, kind of up top, the employer 00:23:37.779 --> 00:23:39.740 is still required to engage in the interactive 00:23:39.740 --> 00:23:43.259 process with the employee to determine the accommodation 00:23:43.259 --> 00:23:46.599 that they need and that would meet those needs. 00:23:49.000 --> 00:23:53.940 So for lactation accommodations, often a question 00:23:53.940 --> 00:23:57.460 comes up as to whether remote work as an accommodation 00:23:57.460 --> 00:24:00.599 would be required for lactation purposes. The 00:24:00.599 --> 00:24:05.480 PWFA is not explicit on this, but the law does 00:24:05.480 --> 00:24:07.980 not require an employee or employer to make an 00:24:07.980 --> 00:24:10.059 accommodation for the limitations of the child. 00:24:10.099 --> 00:24:12.940 So if the child is having lactation issues, that 00:24:12.940 --> 00:24:14.839 would be considered a limitation of the child. 00:24:15.019 --> 00:24:17.220 It's really only the employee who is entitled 00:24:17.220 --> 00:24:20.079 to an accommodation that could include remote 00:24:20.079 --> 00:24:23.250 work. The best practice here would be to get 00:24:23.250 --> 00:24:25.740 detailed

information From the employee about 00:24:25.740 --> 00:24:27.799 the basis for the request and the scope of the 00:24:27.799 --> 00:24:30.539 limitation. I just want to make a note here that 00:24:30.539 --> 00:24:33.039 local laws may have varied standards for accommodations. 00:24:33.359 --> 00:24:35.339 We'll talk about California law, but to the extent 00:24:35.339 --> 00:24:38.180 that there is. If the employee is working from 00:24:38.180 --> 00:24:40.480 a specific locality or your subject, the laws 00:24:40.480 --> 00:24:43.140 of a specific locality that could impact what 00:24:43.140 --> 00:24:47.410 accommodations that are entitled to. So just 00:24:47.410 --> 00:24:50.470 a kind of a little bit of a law nerd slide here. 00:24:50.470 --> 00:24:54.730 Where is the PWFA headed? So there was a challenge. 00:24:56.700 --> 00:25:00.539 In 2024, the federal government has challenged 00:25:00.539 --> 00:25:03.819 a 2024 district court order asserting that the 00:25:03.819 --> 00:25:06.420 PWFA cannot be enforced against the state of 00:25:06.420 --> 00:25:10.660 Texas. The Fifth Circuit has granted, agreed 00:25:10.660 --> 00:25:12.740 to hear oral arguments on the case. Those occurred 00:25:12.740 --> 00:25:16.400 in May at 2026 and the case is still pending. 00:25:17.420 --> 00:25:20.619 So we do anticipate that this case will probably 00:25:20.619 --> 00:25:25.789 go on to the Supreme Court. So, what are the 00:25:25.789 --> 00:25:29.549 best practices for compliance? The number 1, 00:25:29.910 --> 00:25:31.769 you know, I would say it's not it's not on this 00:25:31.769 --> 00:25:33.809 list, but the number 1 best practice would be 00:25:33.809 --> 00:25:37.630 to really. for your clients to really familiarize 00:25:37.630 --> 00:25:40.089 themselves with your help with the requirements 00:25:40.089 --> 00:25:42.690 of the PWFA because they are different than any 00:25:42.690 --> 00:25:46.289 other accommodation law that we've seen. The 00:25:46.289 --> 00:25:49.670 second step would be to prepare and revise those 00:25:49.670 --> 00:25:52.289 accommodation forms. Again, a one -size -fits 00:25:52.289 --> 00:25:56.210 -all approach using an ADA form is not going 00:25:56.210 --> 00:25:59.289 to cut it with the PWFA. There should be a separate 00:25:59.289 --> 00:26:04.039 form for those types of requests. The client 00:26:04.039 --> 00:26:06.079 will want to make sure that their HR and benefits 00:26:06.079 --> 00:26:10.160 managers are fully trained on the PWFA. I think 00:26:10.160 --> 00:26:12.940 that also would include frontline managers to 00:26:12.940 --> 00:26:18.299 the extent that they would be taking on and hearing 00:26:18.299 --> 00:26:21.940 accommodation requests from employees. To the 00:26:21.940 --> 00:26:24.059 extent that a client has a third party administrator 00:26:24.059 --> 00:26:28.140 administering their leave, you should never count 00:26:28.140 --> 00:26:32.339 on that TPA being fully compliant. So the client

00:26:32.339 --> 00:26:34.619 would want to make sure that that TPA is fully 00:26:34.619 --> 00:26:37.980 compliant with PWFA. And then, of course, taking 00:26:37.980 --> 00:26:40.599 a look at handbook policies or other policies, 00:26:40.740 --> 00:26:43.920 evaluating and updating those to make sure that 00:26:43.920 --> 00:26:46.700 those are accurate and meet the needs of the 00:26:46.700 --> 00:26:53.640 PWFA. So also impacting pregnancy accommodation 00:26:53.640 --> 00:26:56.960 is FIHA. So accommodations under FIHA are a separate 00:26:56.960 --> 00:27:00.180 entitlement, separate requirement. And so we'll 00:27:00.180 --> 00:27:03.009 get into those. I'm not gonna go through all 00:27:03.009 --> 00:27:06.430 of the details on this slide. It's fairly detailed, 00:27:06.430 --> 00:27:08.369 but I wanted to put all of them on one slide 00:27:08.369 --> 00:27:10.670 to show that there are several different overlapping 00:27:10.670 --> 00:27:13.970 accommodation laws under California state law. 00:27:14.410 --> 00:27:16.769 So we've got FIHA. We've talked about that a 00:27:16.769 --> 00:27:21.269 little bit. That essentially is geared towards 00:27:21.269 --> 00:27:24.529 accommodations and discrimination. We've also 00:27:24.529 --> 00:27:26.450 got the pregnancy disability leave, which I'll 00:27:26.450 --> 00:27:28.900 talk about in a moment. That actually provides 00:27:28.900 --> 00:27:31.500 four months or up to four months of job protected 00:27:31.500 --> 00:27:35.059 leave for pregnancy. There's no minimum employment 00:27:35.059 --> 00:27:38.059 length. You've got to maintain group health coverage 00:27:38.059 --> 00:27:41.680 and you can be required to transfer that employee 00:27:41.680 --> 00:27:46.240 to a less strenuous position. CFRA or the California 00:27:46.240 --> 00:27:48.740 Family Rights Act is another sort of layer on 00:27:48.740 --> 00:27:52.180 top of this. So CFRA provides essentially family 00:27:52.180 --> 00:27:55.640 leave. So it provides 12 additional weeks beyond 00:27:55.640 --> 00:27:57.619 the four months of pregnancy disability leave, 00:27:57.779 --> 00:28:02.059 if needed, of baby bonding leave. And if you 00:28:02.059 --> 00:28:05.500 stack PDL and CFRA, let's say the person has 00:28:05.500 --> 00:28:08.380 a disability that has them out for four months 00:28:08.380 --> 00:28:11.119 related to pregnancy, plus they get CFRA, that 00:28:11.119 --> 00:28:13.259 could be up to 12 months of total protective 00:28:13.259 --> 00:28:17.839 leave. CFRA applies to employers with five or 00:28:17.839 --> 00:28:20.950 more employees. And for childbirth purposes, 00:28:21.009 --> 00:28:26.970 it runs sequentially. So it would run after the 00:28:26.970 --> 00:28:29.309 PDL for the childbirth purposes. You would then 00:28:29.309 --> 00:28:32.779 get baby bonding leave. Reproductive loss leave 00:28:32.779 --> 00:28:36.519 also overlaps with this. So under California 00:28:36.519 --> 00:28:39.140 law, you're entitled to up to five days of protected 00:28:39.140 --> 00:28:42.519 leave for miscarriage, stillbirth, failed adoption 00:28:42.519 --> 00:28:45.799 or surrogacy, or unsuccessful IVF. There is no 00:28:45.799 --> 00:28:49.440 documentation required for this leave. And this 00:28:49.440 --> 00:28:51.740 applies to employers with five or more employees. 00:28:52.220 --> 00:28:54.140 So the bottom line here really is that while 00:28:54.140 --> 00:28:58.460 PWFA is very expansive, California law really 00:28:58.460 --> 00:29:00.740 sets the compliance floor. So it's got a lower 00:29:00.740 --> 00:29:02.960 employee threshold, that five employee versus 00:29:02.960 --> 00:29:07.460 15, a leave that is up to seven months, depending 00:29:07.460 --> 00:29:10.660 on whether or not the person giving birth has 00:29:10.660 --> 00:29:13.740 a disability or person pregnant has a disability. 00:29:14.539 --> 00:29:17.089 Broader predicted characteristics. there are 00:29:17.089 --> 00:29:20.569 unlimited damages, that's the biggest one, and 00:29:20.569 --> 00:29:22.690 there's stricter notice and posting requirements. 00:29:23.430 --> 00:29:26.710 So if you put the PWFA and FEHA side by side, 00:29:26.789 --> 00:29:30.369 you can kind of see that there are different 00:29:30.369 --> 00:29:35.140 requirements. I would say the PWFA is actually 00:29:35.140 --> 00:29:38.339 a little bit more broad in the type of accommodations 00:29:38.339 --> 00:29:43.869 that it requires. And for PDL, for pregnancy 00:29:43.869 --> 00:29:45.750 disability leave, the condition actually must 00:29:45.750 --> 00:29:48.930 rise to the level of, and under FEHA, the condition 00:29:48.930 --> 00:29:50.750 must actually rise to the level of disability 00:29:50.750 --> 00:29:53.710 for an accommodation under those two laws. But 00:29:53.710 --> 00:29:55.789 under the PWFA, the employee does not need to 00:29:55.789 --> 00:29:59.349 be disabled. It just needs to be a limitation. 00:30:06.210 --> 00:30:09.230 So I'm gonna touch a little bit on pregnancy 00:30:09.230 --> 00:30:11.430 -related leaves as well. I've already mentioned 00:30:11.430 --> 00:30:14.730 CIFRA, but there's also the Family and Medical 00:30:14.730 --> 00:30:19.210 Leave Act. So if you compare those two, a little 00:30:19.210 --> 00:30:22.509 side by side. So FEMLA has been around forever. 00:30:24.410 --> 00:30:27.309 Many clients are familiar with FEMLA. It basically 00:30:27.309 --> 00:30:29.910 applies to all employers with 50 or more employees 00:30:29.910 --> 00:30:34.910 within a 75 mile radius. It has under CIFRA applies 00:30:34.910 --> 00:30:37.309 to five or more employees. That's a fairly new 00:30:37.309 --> 00:30:41.980 change as of 2021. For both, there's the same 00:30:41.980 --> 00:30:44.359 eligibility in terms of tenure. So the employee 00:30:44.359 --> 00:30:46.880 must have worked 12 months, and they must have 00:30:46.880 --> 00:30:49.299 worked at least 1 ,250 hours in those 12 months

00:30:49.299 --> 00:30:52.980 to be eligible. And both provide up to 12 weeks 00:30:52.980 --> 00:30:57.599 of unpaid leave in a 12 -month period. FEMLA 00:30:57.599 --> 00:31:00.680 covers a serious health condition, pregnancy 00:31:00.680 --> 00:31:02.960 disability, and bonding. The new child within 00:31:02.960 --> 00:31:05.799 one year of the birth or placement. And then 00:31:05.799 --> 00:31:09.480 CIFRA covers baby bonding. So new child by birth, 00:31:09.759 --> 00:31:13.930 adoption, or foster care. FEMLA runs concurrently 00:31:13.930 --> 00:31:17.089 with Pregnancy Disability Leave, that California 00:31:17.089 --> 00:31:20.329 entitlement for disability. Cifra does not cover 00:31:20.329 --> 00:31:23.670 disability. It's strictly bonding. PDL covers 00:31:23.670 --> 00:31:30.059 disability. So these are kind of another slide 00:31:30.059 --> 00:31:32.519 showing the overlapping laws. So again, we've 00:31:32.519 --> 00:31:36.890 got PDL. We've got CEFRA, we've got FEMLA, and 00:31:36.890 --> 00:31:40.609 PWFA accommodation. So this is just a little 00:31:40.609 --> 00:31:43.490 summary of the differences, but for one pregnant 00:31:43.490 --> 00:31:46.930 employee, all four of these can apply and likely 00:31:46.930 --> 00:31:53.690 will apply, and they're all overlapping. Just 00:31:53.690 --> 00:31:56.269 a little bit more about pregnancy disability 00:31:56.269 --> 00:31:59.069 leave, as that is specific to California and 00:31:59.069 --> 00:32:02.210 is not a federal entitlement. As I mentioned, 00:32:02.369 --> 00:32:06.180 it can cover up to four months of leave. for 00:32:06.180 --> 00:32:09.000 pregnancy, and really the only trigger is that 00:32:09.000 --> 00:32:11.700 the employee is disabled by pregnancy, childbirth, 00:32:11.779 --> 00:32:14.920 or related medical conditions. What that means 00:32:14.920 --> 00:32:17.079 is that the condition that they have makes it 00:32:17.079 --> 00:32:20.039 medically inadvisable to work. So it doesn't 00:32:20.039 --> 00:32:22.079 need to mean that they're completely disabled. 00:32:22.400 --> 00:32:24.940 It doesn't mean that they're permanently disabled. 00:32:25.160 --> 00:32:28.559 It's really just related to pregnancy and childbirth, 00:32:28.779 --> 00:32:31.460 and when their doctor is telling them that it's 00:32:31.460 --> 00:32:36.650 medically inadvisable to work. pregnancy disability 00:32:36.650 --> 00:32:39.589 leave can be taken intermittently. It can be 00:32:39.589 --> 00:32:41.829 taken on a reduced schedule when it's medically 00:32:41.829 --> 00:32:46.410 necessary. It is unpaid, but there is a benefit 00:32:46.410 --> 00:32:49.329 that I'll talk about a little bit, a paid benefit 00:32:49.329 --> 00:32:53.630 entitlement. But employees may and must often 00:32:53.630 --> 00:32:55.890 use and create accrued paid leave concurrently. 00:32:55.930 --> 00:32:58.609 So if they already have accrued paid time off, 00:32:58.930 --> 00:33:01.369 they should be using that leave along with PDL. 00:33:02.180 --> 00:33:05.039 The client is required to maintain health benefits 00:33:05.039 --> 00:33:07.619 during PDL on the same terms as if the employee 00:33:07.619 --> 00:33:10.799 had continued working. And the employee is entitled 00:33:10.799 --> 00:33:12.960 to return to the same or comparable position 00:33:12.960 --> 00:33:16.200 when that's done. So pregnancy disability leave 00:33:16.200 --> 00:33:19.019 is actually one of the most frequently litigated 00:33:19.019 --> 00:33:23.700 areas of pregnancy leave rights. As I mentioned, 00:33:23.779 --> 00:33:26.440 it runs concurrently with FEMLA. It does not 00:33:26.440 --> 00:33:29.059 run concurrently with CFRA. So again, that leads 00:33:29.059 --> 00:33:34.829 to up to 7 months of total leave time potentially. 00:33:37.650 --> 00:33:40.190 Certification by healthcare provider is required 00:33:40.190 --> 00:33:44.069 for PDL. So that is necessary for the employee 00:33:44.069 --> 00:33:47.210 to take PDL, but not more than necessary. So, 00:33:47.210 --> 00:33:51.569 you know, if they provided that certification 00:33:51.569 --> 00:33:53.470 once, unless the condition changes, they should 00:33:53.470 --> 00:33:57.700 not be required to provide it again. Some employer 00:33:57.700 --> 00:34:02.039 mistakes that can happen are counting PDL against 00:34:02.039 --> 00:34:05.299 the CIPRA entitlement. So instead of, you know, 00:34:05.640 --> 00:34:08.840 they do not overlap. So if you count that entitlement 00:34:08.840 --> 00:34:10.159 against your fare, you're going to be counting 00:34:10.159 --> 00:34:13.039 too short. Failing to notify the employee of 00:34:13.039 --> 00:34:15.800 their eligibility and then denying reinstatement 00:34:15.800 --> 00:34:17.900 when they return. Those are the typical errors. 00:34:20.510 --> 00:34:24.329 So in terms of figuring out which leave laws 00:34:24.329 --> 00:34:26.489 apply or which accommodation laws apply, you 00:34:26.489 --> 00:34:29.630 should assume that they all apply and go through. 00:34:30.150 --> 00:34:33.289 So step one would be to figure out is the employer 00:34:33.289 --> 00:34:36.789 client actually covered? Do they meet the threshold? 00:34:37.130 --> 00:34:40.329 Most will meet the threshold for FIHA, PDL, and 00:34:40.329 --> 00:34:43.070 CIFRA of five employees. If they've got 15 or 00:34:43.070 --> 00:34:46.489 more, PWFA also applies, and then 50 plus will 00:34:46.489 --> 00:34:49.880 mean that FEMWA applies. Then you want to identify 00:34:49.880 --> 00:34:52.360 the leave type and sequence and we'll talk about 00:34:52.360 --> 00:34:54.019 that in a little bit. I have a little kind of 00:34:54.019 --> 00:34:57.679 flow chart to show how that typically happens. 00:34:58.320 --> 00:35:00.539 But usually it's pregnancy disability before 00:35:00.539 --> 00:35:04.579 and after birth plus PWFA if they need accommodations. 00:35:05.820 --> 00:35:09.920 Then they have the child and that's usually

PDL 00:35:09.920 --> 00:35:13.409 and concurrent femla. Then they have baby bonding 00:35:13.409 --> 00:35:18.150 after PDL ends, CIFRA, and then they've got their 00:35:18.150 --> 00:35:19.929 wage benefits under paid family leave, which 00:35:19.929 --> 00:35:23.510 I'll go into in a moment. So that's kind of the 00:35:23.510 --> 00:35:26.289 step two. Step three is to coordinate the pay 00:35:26.289 --> 00:35:29.070 and benefits. There are really specific notification 00:35:29.070 --> 00:35:33.690 requirements under FIHA, FEMLA, PDL, or it's 00:35:33.690 --> 00:35:37.639 not FIHA, excuse me. PDL, CIFRA, and FEMLA require 00:35:37.639 --> 00:35:40.019 pretty specific notification requirements. So 00:35:40.019 --> 00:35:43.119 that would be definitely something that you'd 00:35:43.119 --> 00:35:48.519 want to do before you even... As soon as the 00:35:48.519 --> 00:35:49.699 employee lets you know that they're pregnant, 00:35:49.760 --> 00:35:51.659 you'd want to identify what notice is required 00:35:51.659 --> 00:35:57.230 and provide that. Also, if there's any sort of 00:35:57.230 --> 00:35:59.710 a crude leave integration that the client is 00:35:59.710 --> 00:36:01.929 providing, that would have to be considered. 00:36:02.369 --> 00:36:04.949 Health coverage has got to be maintained. and 00:36:04.949 --> 00:36:08.190 then the reinstatement rights are going to be 00:36:08.190 --> 00:36:12.809 the same for those two laws. If the position 00:36:12.809 --> 00:36:15.849 becomes unavailable, like a client has a reduction 00:36:15.849 --> 00:36:18.510 in force, something like that, documenting that 00:36:18.510 --> 00:36:22.050 bonafide business reason is absolutely necessary. 00:36:25.610 --> 00:36:29.690 Okay, so this is probably the driest area that 00:36:29.690 --> 00:36:31.489 I'll cover, but I did want to point it out and 00:36:31.489 --> 00:36:36.090 provide the slide. There are two types of state 00:36:36.250 --> 00:36:39.750 paid state benefits that employees who are pregnant 00:36:39.750 --> 00:36:42.789 and give birth are entitled to. So one is the 00:36:42.789 --> 00:36:45.429 SDI, which is a state disability insurance. That's 00:36:45.429 --> 00:36:47.389 essentially a partial wage replacement or for 00:36:47.389 --> 00:36:50.630 some employees, a full wage replacement. For 00:36:50.630 --> 00:36:52.650 employees who are unable to work due to pregnancy, 00:36:52.889 --> 00:36:55.630 childbirth, or related medical conditions, that 00:36:55.630 --> 00:36:58.849 is a maximum duration of 52 weeks. So they can 00:36:58.849 --> 00:37:01.150 be on state disability for up to 52 weeks related 00:37:01.150 --> 00:37:05.900 to pregnancy. The typical pregnancy claim is 00:37:06.090 --> 00:37:09.469 they make a claim four weeks before the due date, 00:37:09.510 --> 00:37:13.309 and then they take six weeks after normal delivery, 00:37:13.369 --> 00:37:16.989 eight weeks after C -section of SDI. This is 00:37:16.989 --> 00:37:19.730 funded through

a payroll deduction. The employer 00:37:19.730 --> 00:37:21.670 does not pay this. This is strictly paid through 00:37:21.670 --> 00:37:24.449 the employment development department. And the 00:37:24.449 --> 00:37:26.610 employment development department also takes 00:37:26.610 --> 00:37:28.829 in the application and determines whether the 00:37:28.829 --> 00:37:35.210 employee is eligible. For paid family leave, 00:37:35.269 --> 00:37:38.989 that is for the bonding period of the pregnancy. 00:37:40.070 --> 00:37:43.630 So it also, as with SDI, provides partial wage 00:37:43.630 --> 00:37:46.730 replacement for employees on family leave, and 00:37:46.730 --> 00:37:50.110 it covers bonding. And that can be through birth, 00:37:50.190 --> 00:37:52.889 adoption, or foster placement. The benefit amount 00:37:52.889 --> 00:37:57.550 is about the same, 60 to 70 % of wages, up to 00:37:57.550 --> 00:38:00.130 a weekly maximum, and there's eight weeks available 00:38:00.130 --> 00:38:04.079 in a 12 -month period. So it is a wage replacement 00:38:04.079 --> 00:38:06.920 and it runs concurrently with CFRA. It's not 00:38:06.920 --> 00:38:10.940 a separate leave entitlement. Both parents, not 00:38:10.940 --> 00:38:16.360 just the parent giving birth, can receive paid 00:38:16.360 --> 00:38:18.400 family leave for the same child because it is 00:38:18.400 --> 00:38:20.980 that bonding leave rather than a pregnancy related 00:38:20.980 --> 00:38:26.070 leave. There are strict anti -retaliation. provisions 00:38:26.070 --> 00:38:29.550 under the law for all of these leaves and all 00:38:29.550 --> 00:38:32.010 of these entitlements, but there is a special 00:38:32.010 --> 00:38:35.789 one for retaliation against an employee for taking 00:38:35.789 --> 00:38:39.469 a leave covered by PFL. So just to summarize, 00:38:40.269 --> 00:38:43.190 the way that PFLs and CFRA California Family 00:38:43.190 --> 00:38:46.730 Rights Act leave interact is that CFRA provides 00:38:46.730 --> 00:38:49.190 the leave protection, so the job protected leave, 00:38:49.510 --> 00:38:52.840 and then PFL essentially provides the money or 00:38:52.840 --> 00:38:54.699 pay during that leave through the employment 00:38:54.699 --> 00:39:01.889 development department. There were a couple changes 00:39:01.889 --> 00:39:05.710 recently, recent -ish. So in 2020, PFL expanded 00:39:05.710 --> 00:39:09.150 to eight weeks, six weeks. And then in January 00:39:09.150 --> 00:39:11.670 2025, those wage replacement rates were increased 00:39:11.670 --> 00:39:17.110 for lower wage workers. So I mentioned I would 00:39:17.110 --> 00:39:19.489 talk about a typical timeline and how this kind 00:39:19.489 --> 00:39:22.820 of works for um, for employees and for client, 00:39:22.960 --> 00:39:25.019 you know, employees of clients and for employee 00:39:25.019 --> 00:39:28.039 clients. Um, so typically the employee, uh, you 00:39:28.039 --> 00:39:31.940 know, is pregnant, may need accommodations, um, 00:39:31.940 --> 00:39:36.619 under the PWFA or FEHA. They go on PDL for pregnancy 00:39:36.619 --> 00:39:39.440 disability for the birth of the child. FEMLA 00:39:39.440 --> 00:39:43.119 runs concurrently. The baby is born. Um, if they 00:39:43.119 --> 00:39:45.780 still have a disability related to pregnancy, 00:39:46.059 --> 00:39:49.530 then PDL continues. PDL ends, and then the employee 00:39:49.530 --> 00:39:53.130 can take up to 12 weeks of CFRA for baby bonding. 00:39:53.329 --> 00:39:55.530 So again, that total potential productive leave 00:39:55.530 --> 00:39:59.909 is seven months. So as I mentioned, there are 00:39:59.909 --> 00:40:04.550 strict anti -retaliation laws related to pregnancy 00:40:04.550 --> 00:40:07.670 and childbirth and related conditions, including 00:40:07.670 --> 00:40:11.650 lactation. I just did a summary of these so you 00:40:11.650 --> 00:40:16.019 can kind of see what they look like. So Essentially 00:40:16.019 --> 00:40:18.119 what the retaliation claim would look like is 00:40:18.119 --> 00:40:20.139 the employee engages in some sort of protected 00:40:20.139 --> 00:40:23.059 activity, the employer takes an adverse action 00:40:23.059 --> 00:40:25.280 against that employee, and then you've gotten 00:40:25.280 --> 00:40:29.460 a retaliation claim. So protected activity is 00:40:29.460 --> 00:40:32.360 pretty broad. So that could mean requesting a 00:40:32.360 --> 00:40:35.519 reasonable accommodation under PWFA or FIHA, 00:40:35.940 --> 00:40:37.980 taking or even requesting a pregnancy related 00:40:37.980 --> 00:40:42.170 leave, filing a complaint. opposing practices 00:40:42.170 --> 00:40:44.489 that the employee believes violate pregnancy 00:40:44.489 --> 00:40:48.389 discrimination laws, even if they don't, or participating 00:40:48.389 --> 00:40:52.289 in an investigation or lawsuit related to a pregnancy 00:40:52.289 --> 00:40:55.750 or childbirth issue. An adverse action by an 00:40:55.750 --> 00:40:59.190 employer would be any negative action, basically. 00:40:59.570 --> 00:41:01.909 So termination, demotion, reduction in hours, 00:41:02.550 --> 00:41:05.869 transfer can qualify as an adverse action, a 00:41:05.869 --> 00:41:08.570 negative performance review, and even an exclusion 00:41:08.570 --> 00:41:11.719 from things like meetings or special trainings 00:41:11.719 --> 00:41:14.760 or advancement opportunities. At the sort of 00:41:14.760 --> 00:41:16.280 the higher end of this would be like a hostile 00:41:16.280 --> 00:41:19.940 work environment or increased scrutiny or micromanagement. 00:41:20.400 --> 00:41:23.420 And then an adverse action can also be a pressure 00:41:23.420 --> 00:41:27.400 to resign if someone is pregnant or return from 00:41:27.400 --> 00:41:32.170 their parental or disability leave early. So 00:41:32.170 --> 00:41:34.650 the claims are pretty basic. As I mentioned, 00:41:34.650 --> 00:41:36.650 you've got the protected activity, you've got 00:41:36.650 --> 00:41:38.610

the adverse action, and then if there's a causal 00:41:38.610 --> 00:41:41.070 link between those two, you've got yourself a 00:41:41.070 --> 00:41:46.670 prima facie retaliation claim. Retaliation claims 00:41:46.670 --> 00:41:49.969 have several different types of remedies. So 00:41:49.969 --> 00:41:52.730 under FIHA and federal law, I mentioned some 00:41:52.730 --> 00:41:55.469 of the remedies for PWFA, but for retaliation 00:41:55.469 --> 00:41:58.389 specifically, there is reinstatement, front pay 00:41:58.389 --> 00:42:01.429 in lieu of reinstatement, back pay and loss benefits. 00:42:01.510 --> 00:42:04.010 So the sort of the value of the loss benefits 00:42:04.010 --> 00:42:06.090 can be included in that back pay calculation. 00:42:06.690 --> 00:42:09.409 Compensatory damages, which would include not 00:42:09.409 --> 00:42:12.170 only out of pocket losses, but also emotional 00:42:12.170 --> 00:42:15.510 distress related to the retaliation. Punitive 00:42:15.510 --> 00:42:20.150 damages, it's capped for larger employers under 00:42:20.150 --> 00:42:23.369 Title VII and the PWFA, but unlimited under FIHA. 00:42:23.989 --> 00:42:26.949 Attorney's fees, of course, and then injective 00:42:26.949 --> 00:42:30.489 relief. So that could be things like policy changes 00:42:30.489 --> 00:42:33.889 or training requirements. you know, from the 00:42:33.889 --> 00:42:39.019 EEOC or the CRD or whichever agency is, you know, 00:42:39.079 --> 00:42:42.699 sort of going after the employer client. So there 00:42:42.699 --> 00:42:46.559 have been a record number of pregnancy and retaliation 00:42:46.559 --> 00:42:49.980 charges filed with the EEOC in 2024 and 2025. 00:42:50.260 --> 00:42:53.400 And in fact, the EEOC has the largest number 00:42:53.400 --> 00:42:55.500 of claims that the EEOC has pursued over the 00:42:55.500 --> 00:42:59.380 past few years are retaliation claims. So those 00:42:59.380 --> 00:43:01.219 are, you know, those are the ones that they. 00:43:01.239 --> 00:43:06.159 do seek to litigate quite often. The California 00:43:06.159 --> 00:43:08.860 Civil Rights Department is actively pursuing 00:43:08.860 --> 00:43:11.500 pattern or practice investigations in California. 00:43:11.860 --> 00:43:14.960 So employers that have a pattern or practice 00:43:14.960 --> 00:43:17.480 of, let's say, requiring all employees to go 00:43:17.480 --> 00:43:19.059 on leave the moment they know they're pregnant, 00:43:19.860 --> 00:43:23.099 the CRD is targeting those specific violations. 00:43:23.719 --> 00:43:27.000 And then as you probably all are aware, we've 00:43:27.000 --> 00:43:29.599 got crazy jury verdicts often. So jury verdicts 00:43:29.599 --> 00:43:32.159 in pregnancy retaliation cases typically exceed 00:43:32.159 --> 00:43:35.039 1 million in California. And really, that's because 00:43:35.039 --> 00:43:37.679 of those punitive damages and those emotional 00:43:37.679 --> 00:43:41.269 distress damages. So what are some best practices 00:43:41.269 --> 00:43:46.170 for employer clients? Typically to separate the 00:43:46.170 --> 00:43:48.469 decision makers. So the people that are, you 00:43:48.469 --> 00:43:51.369 know, determining, hiring, firing, transfer, 00:43:51.630 --> 00:43:54.429 advancement, all that from those who actually 00:43:54.429 --> 00:43:56.809 are handling the pregnancy and leave requests. 00:43:57.250 --> 00:43:59.130 For example, separating, you know, having the 00:43:59.130 --> 00:44:01.329 manager be sort of the decision maker on the 00:44:01.329 --> 00:44:03.909 performance side and then having a leave department 00:44:03.909 --> 00:44:06.869 or HR be the decision maker for pregnancy and 00:44:06.869 --> 00:44:09.929 leave requests for that same employee. Of course, 00:44:10.409 --> 00:44:12.849 documenting legitimate business reasons for any 00:44:12.849 --> 00:44:15.489 adverse action that's taken against an employee. 00:44:17.730 --> 00:44:21.070 Typically, with counsel's help so that these 00:44:21.070 --> 00:44:24.489 are privileged communications, not always, but 00:44:24.880 --> 00:44:29.139 typically those are internal memos that can document. 00:44:29.300 --> 00:44:32.820 business decisions, also things like performance 00:44:32.820 --> 00:44:35.940 reviews or performance improvement plans, or 00:44:35.940 --> 00:44:38.800 even just notes from supervisors documenting 00:44:38.800 --> 00:44:42.119 why an adverse action was taken against a particular 00:44:42.119 --> 00:44:45.480 employee. And then, of course, training managers 00:44:45.480 --> 00:44:49.590 and HR. So no good deed goes unpunished is very 00:44:49.590 --> 00:44:51.710 true in employment law and is very true in this 00:44:51.710 --> 00:44:54.710 context. The most well intentioned restrictions 00:44:54.710 --> 00:44:56.469 like, oh, you know, you shouldn't work. You're 00:44:56.469 --> 00:44:58.250 pregnant. You should go home. You should go on 00:44:58.250 --> 00:45:01.489 leave. That can still very much be discrimination 00:45:01.489 --> 00:45:11.059 and or retaliation. So I did want to touch briefly 00:45:11.059 --> 00:45:13.179 on a lactation accommodations, even though they're 00:45:13.179 --> 00:45:17.559 not. No, super related to leave. They do come 00:45:17.559 --> 00:45:20.599 into play certainly for folks coming back from 00:45:20.599 --> 00:45:22.900 leave that are pregnant or that have given birth. 00:45:24.239 --> 00:45:26.099 There have been a couple, there's been a major 00:45:26.099 --> 00:45:28.280 development in federal law over the last couple 00:45:28.280 --> 00:45:30.800 of years, or I guess now four years, and that 00:45:30.800 --> 00:45:34.239 is the PUMP Act. And PUMP stands for providing 00:45:34.239 --> 00:45:36.860 urgent maternal protections for nursing mothers. 00:45:37.670 --> 00:45:41.489 So this basically extends protections under the 00:45:41.489 --> 00:45:43.590 Fair Labor Standards Act, which is the federal 00:45:43.590 --> 00:45:47.769 labor, kind

of overarching federal labor law, 00:45:48.510 --> 00:45:51.150 extends those protections to all employees. So 00:45:51.150 --> 00:45:54.210 this includes exempt employees and salaried employees. 00:45:54.670 --> 00:45:57.170 And what the Pump Act provides is reasonable 00:45:57.170 --> 00:46:00.110 break time to express milk for up to one year 00:46:00.110 --> 00:46:03.780 after a child's birth. localities and states 00:46:03.780 --> 00:46:05.940 can provide for different amounts of time, but 00:46:05.940 --> 00:46:07.920 the Pump Act provides for one year after the 00:46:07.920 --> 00:46:11.059 child's birth. There's a requirement that the 00:46:11.059 --> 00:46:15.119 pumping location must be reasonable. It cannot 00:46:15.119 --> 00:46:19.420 be a bathroom. It's got to be a private space 00:46:19.420 --> 00:46:22.980 that's shielded from view and free from intrusion. 00:46:23.880 --> 00:46:26.679 Smaller employers can claim undue hardship, but 00:46:26.679 --> 00:46:29.500 it's rare. And this is enforced by the Department 00:46:29.500 --> 00:46:32.480 of Labor. And we have seen an increase during 00:46:32.480 --> 00:46:35.840 the current administration, an increase in Department 00:46:35.840 --> 00:46:38.559 of Labor audits and investigations related to 00:46:38.559 --> 00:46:42.699 the Pump Act. So this is something that the Department 00:46:42.699 --> 00:46:47.019 of Labor does go after in terms of enforcement. 00:46:47.239 --> 00:46:50.260 And so we are seeing that continue, and especially 00:46:50.260 --> 00:46:53.889 with this current administration. Under California, 00:46:53.969 --> 00:46:56.050 there's pretty strict California lactation protections 00:46:56.050 --> 00:46:59.789 that have been in place for quite some time. 00:47:00.309 --> 00:47:03.349 These apply to all employers, so there's no small 00:47:03.349 --> 00:47:08.690 employer exception. Like the federal law, there's 00:47:08.690 --> 00:47:11.750 lactation location required. It's got to be permanent 00:47:11.750 --> 00:47:14.409 or temporary. But you've also got to have an 00:47:14.409 --> 00:47:17.110 access to a sink and a refrigerator in close 00:47:17.110 --> 00:47:21.170 proximity to that lactation location room. And 00:47:21.170 --> 00:47:23.989 a written lactation accommodation policy is actually 00:47:23.989 --> 00:47:27.849 required. The policy has got to be distributed 00:47:27.849 --> 00:47:30.769 at hire and then when the employee returns from 00:47:30.769 --> 00:47:34.550 a parental leave. There is a potential denial 00:47:34.550 --> 00:47:37.010 of lactation accommodation penalty. It's $100 00:47:37.010 --> 00:47:40.469 per day plus attorney's fees. And then there's 00:47:40.469 --> 00:47:43.369 a separate discrimination, private right of action 00:47:43.369 --> 00:47:46.909 for discrimination under FIHA if the employer 00:47:46.909 --> 00:47:50.269 or client takes adverse action related to lactation. 00:47:52.550 --> 00:47:55.929 In addition to the requirements on the slide 00:47:55.929 --> 00:47:59.530 for lactation, there's also a requirement that 00:47:59.530 --> 00:48:03.170 the employee have a place to sit for lactation 00:48:03.170 --> 00:48:06.590 purposes and a flat surface for the pump as well 00:48:06.590 --> 00:48:09.809 as access to electricity. So those are also some 00:48:09.809 --> 00:48:18.730 requirements. So common employer mistakes and 00:48:18.730 --> 00:48:21.590 how we could help clients avoid them are on this 00:48:21.590 --> 00:48:25.110 slide. So one of the biggest mistakes, as I mentioned, 00:48:25.190 --> 00:48:27.469 was counting PDL against CIFRA. Remember, these 00:48:27.469 --> 00:48:30.489 are separate entitlements. Mistake two, I've 00:48:30.489 --> 00:48:32.650 talked about using those ADA kind of one size 00:48:32.650 --> 00:48:38.849 fits all forms for PWFA requests. Do not do that. 00:48:39.369 --> 00:48:41.389 Requiring leave when another accommodation is 00:48:41.389 --> 00:48:44.250 available. The employer cannot require leave. 00:48:44.570 --> 00:48:47.949 It's the accommodation of last resort, particularly 00:48:47.949 --> 00:48:50.349 in situations where the employee is not requesting 00:48:50.349 --> 00:48:54.429 leave. Leave should never be required. Or mistake 00:48:54.429 --> 00:48:58.909 number four, requesting unnecessary or impermissible 00:48:58.909 --> 00:49:02.289 or overly broad medical documentation. Mistake 00:49:02.289 --> 00:49:04.530 five is really failing to provide a compliant 00:49:04.530 --> 00:49:07.550 lactation space or written policy, which I've 00:49:07.550 --> 00:49:12.340 talked about. So I wanted to give just some practical 00:49:12.340 --> 00:49:17.000 guidance here on counseling. So I'm gonna start 00:49:17.000 --> 00:49:19.340 with the employer clients because that's my comfort 00:49:19.340 --> 00:49:21.880 zone. I mainly represent, actually only represent 00:49:21.880 --> 00:49:24.860 employers. So these are some immediate action 00:49:24.860 --> 00:49:28.000 items, really auditing those policies, creating 00:49:28.000 --> 00:49:31.619 a specific form for PWFA accommodation, and then 00:49:31.619 --> 00:49:34.119 making sure those lactation spaces meet California 00:49:34.119 --> 00:49:36.480 requirements at each facility where you have 00:49:36.480 --> 00:49:40.199 employees. When the employee discloses their 00:49:40.199 --> 00:49:44.199 pregnancy, the employer should really see a femalist 00:49:44.199 --> 00:49:46.780 triggered, provide those notices that are required, 00:49:47.199 --> 00:49:49.619 begin the interactive process for any accommodation 00:49:49.619 --> 00:49:52.940 requests, and of course document, document, document 00:49:52.940 --> 00:49:56.420 each step of that process, and then notify the 00:49:56.420 --> 00:49:59.719 employee of any sort of wage replacement benefits 00:49:59.719 --> 00:50:03.360 that they may be entitled to. So in counseling 00:50:03.360 --> 00:50:07.320 employer clients, really

the goal is to help 00:50:07.320 --> 00:50:10.340 them see leave and accommodation for pregnancy 00:50:10.340 --> 00:50:13.539 as a risk management issue and not a legal burden. 00:50:13.599 --> 00:50:15.380 So it's something that should really be proactive 00:50:15.380 --> 00:50:18.420 that they're planning for as soon as they, you 00:50:18.420 --> 00:50:20.320 know, before they find out an employee is pregnant, 00:50:20.360 --> 00:50:26.929 they should already have this in place. For employer 00:50:26.929 --> 00:50:30.650 clients also litigation risk reduction. So, you 00:50:30.650 --> 00:50:32.989 know, typically this is not a hard and fast rule, 00:50:32.989 --> 00:50:34.849 but if there's an adverse action taken within 00:50:34.849 --> 00:50:38.039 12 months of pregnancy, It's always a good idea 00:50:38.039 --> 00:50:40.920 to have a documented business justification for 00:50:40.920 --> 00:50:44.440 that adverse action. And then implementing a 00:50:44.440 --> 00:50:47.599 dual approval for adverse actions can be really 00:50:47.599 --> 00:50:49.579 good if there are multiple layers of approval 00:50:49.579 --> 00:50:52.760 that are required from the frontline manager 00:50:52.760 --> 00:50:58.119 to the HR leadership. That's always a good idea. 00:50:58.820 --> 00:51:01.889 And then, of course, Advising clients the cost 00:51:01.889 --> 00:51:04.210 of proactive compliance, so the training, the 00:51:04.210 --> 00:51:06.269 policy updates, the programming up with the proper 00:51:06.269 --> 00:51:09.010 forms through council really is a fraction of 00:51:09.010 --> 00:51:13.170 the cost of defending a single well -documented 00:51:13.170 --> 00:51:16.289 FIHA case in California with those jury verdicts 00:51:16.289 --> 00:51:21.320 going well beyond a million in many cases. For 00:51:21.320 --> 00:51:25.780 employee clients, typically, there is an early 00:51:25.780 --> 00:51:29.699 case assessment where all the applicable laws 00:51:29.699 --> 00:51:33.420 are identified, and finding out whether or not 00:51:33.420 --> 00:51:36.699 the employer meets those thresholds. And then 00:51:36.699 --> 00:51:39.179 there's really the timeline, especially for retaliation 00:51:39.179 --> 00:51:42.079 claims, finding out when the protected activity 00:51:42.079 --> 00:51:44.380 took place, so in that, let's say that accommodation 00:51:44.380 --> 00:51:47.059 request came in, and then when the adverse action 00:51:47.059 --> 00:51:49.400 followed, and kind of the timeline for that. 00:51:49.659 --> 00:51:53.420 preserving all evidence related to potential 00:51:53.420 --> 00:51:57.000 claims. So many cases now, of course, are litigated 00:51:57.000 --> 00:52:00.699 on emails and text messages. So making sure that 00:52:00.699 --> 00:52:03.179 a preservation notice is going out immediately 00:52:03.179 --> 00:52:06.139 to the employer, personnel file request is immediately 00:52:06.139 --> 00:52:09.599 going out, and then having the employee preserve 00:52:09.599 --> 00:52:12.719 all of those documents on their side. There are 00:52:12.719 --> 00:52:16.500 some administrative prerequisites to filing lawsuits 00:52:16.500 --> 00:52:19.019 related to pregnancy. So under FIHA, you've got 00:52:19.019 --> 00:52:22.380 to file a charge with the CRD within three years, 00:52:22.539 --> 00:52:24.719 and then you've got to get that right to sue 00:52:24.719 --> 00:52:27.699 required. After you get that right to sue, you've 00:52:27.699 --> 00:52:32.460 got one year to file. For PWFA and Title VII 00:52:32.460 --> 00:52:37.699 violations, there is 300 days. So the EEOC charge 00:52:37.699 --> 00:52:40.500 must be brought within 300 days of that violation. 00:52:41.019 --> 00:52:44.989 And then FEMLA, the Family and Medical Leave 00:52:44.989 --> 00:52:48.090 Act, has a two -year statute of limitations and 00:52:48.090 --> 00:52:50.869 then three years for willful violations. For 00:52:50.869 --> 00:52:53.190 damages, I've talked quite a bit about the fact 00:52:53.190 --> 00:52:56.130 that there's an unlimited amount of damages available 00:52:56.130 --> 00:52:59.750 for compensatory impunities under And of course, 00:53:00.050 --> 00:53:02.809 attorney's fees are available for all of these 00:53:02.809 --> 00:53:07.170 types of violations. And then under PWFA, we've 00:53:07.170 --> 00:53:11.389 got damages capped at 300. There's damages caps 00:53:11.389 --> 00:53:17.159 on the punitive and compensatory. And most claims 00:53:17.159 --> 00:53:19.920 that I see come in are filed under both the EEOC 00:53:19.920 --> 00:53:23.639 and the CRD to preserve all options. So to preserve 00:53:23.639 --> 00:53:26.820 those federal claims under the PWFA and those 00:53:26.820 --> 00:53:36.579 state claims under FIHA. So that is it. If there 00:53:36.579 --> 00:53:39.139 are any questions, I can take those. And I see 00:53:39.139 --> 00:53:42.500 that there is a question. It says, what if an 00:53:42.500 --> 00:53:44.920 employer does not have a separate private room 00:53:44.920 --> 00:53:48.489 with a sink for lactation purposes? except in 00:53:48.489 --> 00:53:53.360 a communal bathroom down the hall. So the answer 00:53:53.360 --> 00:53:58.260 to this question is there needs to be a sink 00:53:58.260 --> 00:54:02.920 that is in proximity to the lactation location. 00:54:03.000 --> 00:54:07.340 So if you have an office, let's say an office 00:54:07.340 --> 00:54:09.400 is being used for that purpose, as long as the 00:54:09.400 --> 00:54:12.360 bathroom is not two buildings over, let's say 00:54:12.360 --> 00:54:14.039 it's in the same building, it's just down the 00:54:14.039 --> 00:54:16.500 hall like you said, that's fine. As long as the 00:54:16.500 --> 00:54:19.139 sink is close enough, to the lactation location, 00:54:19.760 --> 00:54:22.800 I think the standard is a reasonable proximity, 00:54:23.840 --> 00:54:26.780 then you are okay and you should be in compliance 00:54:26.780 -->

00:54:34.559 with the California lactation laws. I can talk 00:54:34.559 --> 00:54:37.019 about a little bit more employer scenarios if 00:54:37.019 --> 00:54:41.039 there are no other questions. Let me share my 00:54:41.039 --> 00:54:53.639 slides. So one of the common scenarios that I 00:54:53.639 --> 00:54:57.329 see have seen in my practice and in yours. Yes, 00:54:57.409 --> 00:54:59.889 sorry. Could you begin the screen share on zoom 00:54:59.889 --> 00:55:20.829 again? Oh, I'm so sorry. Yes. Just one moment. 00:55:20.969 --> 00:55:44.880 We pull that up again. Okay. My apologies. Okay. 00:55:45.710 --> 00:55:49.230 So some of the common one of the common scenarios 00:55:49.230 --> 00:55:54.670 that I see is that we share that there. There 00:55:54.670 --> 00:55:58.349 we go is when a key employee. So a really kind 00:55:58.349 --> 00:56:00.809 of high up employee in a company is pregnant. 00:56:03.289 --> 00:56:08.070 sort of instinct for that employee is to start 00:56:08.070 --> 00:56:11.110 asking others to take over for responsibilities 00:56:11.110 --> 00:56:15.329 or for the employer to step in and sort of reduce 00:56:15.329 --> 00:56:19.090 the workload of that employee without her request. 00:56:19.530 --> 00:56:21.769 And that can be really, really dangerous because 00:56:21.769 --> 00:56:26.110 that essentially opens up two kinds of claims. 00:56:26.530 --> 00:56:30.190 One is in a discrimination claim under the PDA 00:56:30.190 --> 00:56:32.690 or FIHA, and then second would be potentially 00:56:32.690 --> 00:56:36.250 a retaliation claim if she's engaged in any sort 00:56:36.250 --> 00:56:42.070 of protected activity before that happens. Also, 00:56:42.289 --> 00:56:44.989 another scenario is kind of similar to that, 00:56:45.010 --> 00:56:49.429 and that is leaving key employees out of meetings 00:56:49.429 --> 00:56:52.570 because they are pregnant with the knowledge 00:56:52.570 --> 00:56:54.949 that, well, we're going to shift this work over 00:56:54.949 --> 00:56:57.730 to a different employee while they're out. You 00:56:57.730 --> 00:57:00.059 don't need to attend this meeting. often that 00:57:00.059 --> 00:57:03.860 could also be used as support for a retaliation 00:57:03.860 --> 00:57:18.030 claim or a discrimination claim. Some of my clients 00:57:18.030 --> 00:57:22.190 have found it helpful to actually conduct a litigation 00:57:22.190 --> 00:57:25.269 readiness review for any adverse actions that's 00:57:25.269 --> 00:57:27.289 taken within 12 months of protected activity. 00:57:27.949 --> 00:57:32.670 So I mentioned that looking at adverse actions 00:57:32.670 --> 00:57:34.969 within 12 months of a pregnancy can be really 00:57:34.969 --> 00:57:38.460 useful. Often that is done on sort of like an 00:57:38.460 --> 00:57:43.460 annual basis at a certain time based on employer 00:57:43.460 --> 00:57:46.019 size, of course, and who has been pregnant and 00:57:46.019 --> 00:57:48.579 sort of figuring that out and figuring out whether 00:57:48.579 --> 00:57:51.139 any adverse actions have been taken against those 00:57:51.139 --> 00:57:59.590 folks within 12 months. As I mentioned, there 00:57:59.590 --> 00:58:02.670 should be a separate form for Pregnant Workers 00:58:02.670 --> 00:58:07.230 Fairness Act accommodations. And currently there 00:58:07.230 --> 00:58:10.769 is no sort of specific form like there is under 00:58:10.769 --> 00:58:13.389 FEMLA for accommodation requests. So that is 00:58:13.389 --> 00:58:16.329 something that I've assisted my employer clients 00:58:16.329 --> 00:58:20.989 with preparing. And there's a lot of good samples 00:58:20.989 --> 00:58:24.909 out there I think that you can modify. But I've 00:58:24.909 --> 00:58:28.829 also created a checklist for HR often when kind 00:58:28.829 --> 00:58:30.690 of like what to do when an employee discloses 00:58:30.690 --> 00:58:33.389 their pregnancy. That's often been really helpful 00:58:33.389 --> 00:58:37.699 for. Especially if I'm interfacing with any client 00:58:37.699 --> 00:58:40.539 that's an HR representative to kind of implement 00:58:40.539 --> 00:58:43.760 that. To see what leaves this person entitled 00:58:43.760 --> 00:58:46.079 to what accommodations what notifications do 00:58:46.079 --> 00:58:48.619 I need to provide what kind of job protection 00:58:48.619 --> 00:58:51.980 are the entitled to. How did the health benefits 00:58:51.980 --> 00:58:53.860 work how do we maintain the health benefits while 00:58:53.860 --> 00:58:56.780 they're out and then what's our process for following 00:58:56.780 --> 00:58:59.800 up with them when they're done with leave. And 00:58:59.800 --> 00:59:02.380 you know when they're about to come back to me. 00:59:02.460 --> 00:59:05.599 contact them a week out and find out whether 00:59:05.599 --> 00:59:07.679 they intend to return. What is our practice around 00:59:07.679 --> 00:59:12.400 that? And so having that checklist in place for 00:59:12.400 --> 00:59:15.760 HR can be really, really helpful in that instance. 00:59:18.170 --> 00:59:21.489 I cannot emphasize enough to document any sort 00:59:21.489 --> 00:59:24.469 of adverse action decisions made for employees 00:59:24.469 --> 00:59:27.690 who are pregnant or have related conditions or 00:59:27.690 --> 00:59:29.329 have just given birth or returned from parental 00:59:29.329 --> 00:59:36.500 leave. Employers can still terminate employees 00:59:36.500 --> 00:59:39.500 who are on leave related to pregnancy, but there 00:59:39.500 --> 00:59:42.719 needs to be a justifiable business reason that's 00:59:42.719 --> 00:59:48.239 very clearly documented. So I'm going to stop 00:59:48.239 --> 00:59:51.909 sharing and I do see some questions. have you 00:59:51.909 --> 00:59:55.909 ever seen successful uses of associational discrimination 00:59:55.909 --> 00:59:59.429 in the pregnancy context? So associational discrimination, 00:59:59.750 --> 01:00:03.469 in case you're unaware, would be when someone 01:00:03.469 --> 01:00:05.889 who is not pregnant is discriminated against 01:00:05.889 --> 01:00:08.309 for essentially their association with someone 01:00:08.309 --> 01:00:10.710 that is pregnant and is disabled as a result 01:00:10.710 --> 01:00:13.869 of that pregnancy. I have not seen that successfully 01:00:13.869 --> 01:00:16.780 used. And I think... You know, that's still even 01:00:16.780 --> 01:00:19.599 under the ADA and FIHA for just, you know, regular 01:00:19.599 --> 01:00:22.440 disabilities not related to pregnancy. I think 01:00:22.440 --> 01:00:24.760 that's still such an evolving area of the law. 01:00:24.900 --> 01:00:27.679 And so for purposes today, no, I have not seen 01:00:27.679 --> 01:00:31.920 that used successfully. I've also seen a question 01:00:31.920 --> 01:00:33.800 here. Are you willing to share the checklist 01:00:33.800 --> 01:00:36.440 for HR? Yes, I'm happy to share that after the 01:00:36.440 --> 01:00:38.719 presentation. If that would be helpful, I'm happy 01:00:38.719 --> 01:00:43.099 to send that over. Okay, well thank you very 01:00:43.099 --> 01:00:45.920 much. I appreciate your time today and I hope 01:00:45.920 --> 01:00:48.340 you learned something. I had a great time. Thanks 01:00:48.340 --> 01:00:48.639 again.