By Marisa S. Ratinoff and Amy Messigian
In a matter of first impression, the California Court of Appeal held last month that an employee who exhausts all permissible leave under the Pregnancy Disability Leave (“PDL”) provisions of the California Fair Employment and Housing Act (“FEHA”) and is terminated by her employer may nevertheless state a cause of action for discrimination.
In Sanchez v. Swissport, Inc., the plaintiff, a former employee of Swissport, alleged that she was diagnosed with a high risk pregnancy requiring bed rest in February 2009 and was due to give birth in October 2009. The plaintiff alleges that she made Swissport aware of her condition and need to remain on bed rest until after the birth of her child. However, with three months remaining in her pregnancy, the plaintiff was terminated by Swissport in July 2009 after exhausting her 4-month PDL entitlement as well as her accrued vacation. The plaintiff alleges that she would have been able to return to work shortly after October 2009 and that her employer never engaged in the interactive process in order to identify available accommodations, such as the extended leave of absence she had requested.
At the trial court level, Swissport challenged the lawsuit on the grounds that the plaintiff had exhausted her PDL entitlement and that no further leave was required. The trial court agreed and the plaintiff appealed. Reversing the decision, the Court of Appeal stated that an employee’s entitlements under PDL are supplemental to the general non-discrimination provisions of FEHA.
While an employer must provide 4 months of PDL to an employee disabled by pregnancy without regard to the hardship to the employer, its duty continues after PDL has been exhausted to engage in the interactive process with the employee to determine whether it may accommodate the disability. Continuing the leave of absence may be a possible accommodation if it will not be an undue hardship to the employer.
This case presents a cautionary tale to employers who base termination decisions simply on the exhaustion of a guaranteed leave entitlement under state or federal law. In all cases, where an employee exhausts their guaranteed leave entitlement but seeks to continue his or her leave of absence due to disability, employers should consider whether an extended leave of absence may be accommodated. If it will be difficult to accommodate an extended absence in the employee’s current position, an employer may also consider transferring the employee to a comparable vacant position and continuing his or her leave of absence from that position. Discussing available options with counsel is highly recommended.