The answer to the question posed in the title is, "Yes," according to a new decision of a California Court of Appeal. The decision, Sanchez v. Swissport, Inc., based on the law and regulations in place in 2009, also indirectly reinforces the meaning and intent of California's new disability regulations that became effective in January of this year.
The court stated that this was a "case of first impression" and posed the issue as "whether an employee who has exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL)...may nevertheless state a cause of action under the California Fair Employment and Housing Act (FEHA)."
Ms. Sanchez' pregnancy was high-risk and required bedrest. Her baby was due in October, but her condition was diagnosed in February, when she was placed on temporary leave of absence. According to Ms. Sanchez, Swissport was aware of all the relevant circumstances, including that she would need to be on leave until the birth of the baby, and that thereafter she would be able to return to work with little or no acccommodation.
After allowing Ms. Sanchez 19 weeks of leave, Swissport "abruptly" terminated her employment in July. The complaint alleged that there had been no attempt by Swissport to engage Sanchez in a timely, good faith interactive process to indentify reasonable accommodations.
Sanchez' claims were varied, but all were based on the termination during her leave. She did not claim that she was denied her rights under the PDLL, only under FEHA. Swissport argued strenously that the four months of allowed PDL is the employee's exclusive remedy, and that once the leave entitlement has expired, and the employee does not and cannot return to work, she cannot complain about being terminated. This argument was rejected by the court. Presaging a future interpretation of California's new disability regulations, the court said that the rights of a woman under the PDLL are independent of, and in addition to, her rights under the FEHA. FEHA has been interpreted to require leaves of longer than four months as a reasonable accomodation for a disability. Thus the fact that the four month PDL had expired did not prevent the employee from seeking accommodation in the form of additional fixed-term leave beyond those four months. While the employee's claims under the PDLL might be lost after four months of leave, her rights under FEHA are not. The court pointed out that the employer can always argue that such an extended leave would impose an "undue hardship."
This case is significant, both legally and practically. It appears the court gave great weight to the new regulations, which state, in part, that "the right to take pregnancy disability leave...is separate and distinct from the right to take a leave of absence as a form of reasonable accommodation" under FEHA. From a practical point of view, it adds complexity to pregnancy leave management.
Of course all of the rights and obligations that accompany the right to leave as an accommodation under FEHA, including the need for reasonable medical documentation in support of a proposed accommodation, are in play. The extention of PDL into FEHA accommodation leave is not automatic. But, the distinct nature of the two leaves, and their independent statutory requirements and process deserve heightened attention.