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Second Appellate District Holds that Employers do not Fulfill FEHA Obligations by Providing the Statutory Four-Month PDL Leave to Employees with Pregnancy-Related Disabilities

Posted in FMLA and Other Leaves of Absence

By:  James L. Brannen

In Sanchez v. Swissport, Inc. (2013) 2013 Cal. App. Lexis 131, the Second Appellate District of California, for the first time, has addressed whether an employer who provides the full amount of leave allotted by the California Family Rights Act (CFRA) and Pregnancy Disability Leave (PDL) to a pregnant employee with early pregnancy-related disabilities, can still be held liable for failing to provide additional leave to that employee under the Fair Employment and Housing Act (FEHA) as a reasonable accommodation until after the employee gives birth.

In Sanchez, Ms. Sanchez, was employed for approximately two years as a “cleaning agent” by Swissport Inc. In February of 2009, approximately one month into her pregnancy, Ms. Sanchez was diagnosed with a high-risk pregnancy requiring bed rest. After this diagnosis, Ms. Sanchez immediately requested and received a temporary leave of absence from Swissport. Swissport provided Ms. Sanchez with just over 19 weeks of leave, which consisted of her accrued vacation time in addition to the full four months of leave allotted to her by the CFRA and PDL. Following this leave, Ms. Sanchez argued that she was abruptly terminated in July of 2009, approximately three months prior to her expected delivery date.

Ms. Sanchez filed a complaint against Swissport alleging, among other things, discrimination based on sex, pregnancy, and pregnancy-related disability. In response, Swissport filed a demurer contending that the exclusive remedy for an employee seeking reasonable accommodation of her pregnancy-related disability was the PDL and that once an employer provided the maximum four-month leave period specified under the PDL to the employee, that employee was entitled to no more protection under the FEHA. Because all of Ms. Sanchez’s causes of action derived from an underlying claim that Swissport violated the FEHA, and because Swissport had provided Ms. Sanchez with all leave mandated by the CFRA and PDL, Swissport argued that it had necessarily satisfied all of its obligations under FEHA. The Superior Court sustained Swissport’s demurrer and held that, because Ms. Sanchez was unable to perform her essential job functions at the expiration of her leave, Swissport was “expressly permitted under the Government Code” to terminate her position.

Reversing the Superior Court’s decision, the Court of Appeals held that Swissport’s position, and the Superior Court’s ruling, were contradicted by the plain language of the PDL. Under the PDL, the court held, the language clearly states that its remedies are “[i]n addition to” those governing pregnancy, childbirth, and pregnancy-related medical conditions set forth in the FEHA. Thus, the court went on, the PDL remedies do not supplant those remedies provided for under the FEHA, but, rather, augment them. The PDL provision requiring an employer to permit a pregnancy-disabled employee to take leave “not to exceed four months,” the court explained, does not define the limit of an employer’s obligation to a pregnancy-disabled employee, but, rather, merely defines an employer’s obligations under the PDL, which are, by its terms, in addition to those provided elsewhere in the FEHA.

Turning to the FEHA, the court noted that an employer is required, under Government Code section 12940, to provide reasonable accommodations for known physical disabilities of employees unless providing such accommodations would produce undue hardships to the employer’s operations or put the employee in a position that would endanger his or her safety or the safety of others. The court further noted that a finite leave of greater than four months may be a reasonable accommodation for a known disability under the FEHA. Because Ms. Sanchez argued that she would have been able to perform the essential functions of her job with little or no further accommodations if she had been granted additional leave until childbirth, the court held that she had stated a viable claim under the FEHA, and reversed the superior court’s decision to dismiss Ms. Sanchez’s claims.

Employers should take note of this decision any time an employee requests PDL leave. Simply providing an employee with the mandatory four-month leave under the PDL may not be sufficient to protect against claims of discrimination under the FEHA, especially where an employee is unable to return to work following the PDL leave. As with any other case in which an employee attempts to return to his or her position following a disability, employers must engage in a good faith, interactive process with employees who remain disabled following PDL leave to determine if the employer can provide a reasonable accommodation to the employee without undue hardship on the employer.