Family & Medical Leave In the News

California expands pregnancy benefits

The Recorder, November 8, 2011

By Sharon Terman

Three-fourths of women entering the workforce today will become pregnant while they are employed. Meanwhile, complaints of pregnancy discrimination have increased 30 percent since 2005. Beginning next year, however, women in California will be entitled to new protections at work, and they will no longer lose their health insurance when they need it most – when they are having a baby.

On Oct. 6, Gov. Jerry Brown signed SB 299, authored by Sen. Noreen Evans, D-Santa Rosa. The new law requires employers in California with at least five employees to continue health insurance coverage for pregnant women who are on leave from work for pregnancy, childbirth or related disabilities. In addition to SB 299, Brown also signed SB 222 and AB 210, which together require every individual and group health insurance plan to cover maternity services.

California has long been a leader in providing expansive employment protections to pregnant women. Since its enactment in 1978, California's Pregnancy Disability Leave law has required covered employers to provide up to four months of unpaid leave to women while they are disabled by pregnancy, childbirth or a related medical condition. After this leave, women are entitled to return to the position they left. PDL provides critical protections to pregnant women, allowing them to take medically necessary leave from work to have a baby and recover from childbirth, without risking their jobs. Such leave has been found to be crucial for both the health of the child and the health of the mother.

Additionally, California's law bans discrimination and harassment based on pregnancy, and requires reasonable accommodations for pregnant women such as stools, frequent bathroom breaks and modified work duties.

Until the passage of SB 299, however, the PDL did not require employers to provide continued health insurance coverage to employees who were on pregnancy disability leave. Instead, the PDL only required employers to treat pregnant women the same as other employees with nonpregnancy-related temporary disabilities: Thus, if a company continued health benefits for men who were off work recovering from a back injury, they also had to provide benefits to women on pregnancy leave. This equal treatment mandate applies under the federal Pregnancy Discrimination Act as well.

In contrast to PDL, the federal Family and Medical Leave Act, which was enacted in 1993, does require continuation of health insurance benefits to workers who are on leave for pregnancy-related conditions. The FMLA provides up to 12 weeks of job-protected, but unpaid, leave per year, for men and women alike, for an employee's own serious health condition (including pregnancy), to care for a seriously ill family member, or to bond with a new child.

In California, FMLA runs concurrently with PDL; thus, employees who are covered by FMLA already were entitled to have their health benefits continued during leave, at least for 12 weeks.

However, only about half the workforce is entitled to FMLA's protections due to the law's strict eligibility requirements. To be eligible, an employee must work for an employer with at least 50 employees, must have worked for her employer for one year, and must have worked 1,250 hours in the year before her leave. In contrast, PDL covers all women who work at workplaces with at least five employees, regardless of the employee's length of service or the number of hours worked at the company.

Thus, many women who did not meet FMLA's stringent eligibility requirements would lose health insurance coverage exactly when they needed it most: when they were welcoming a new baby into the family.

Without employer-provided health insurance, many women were forced to delay or cut short their pregnancy leave, or forgo needed medical care. Studies show that leave and regular prenatal care are essential to ensuring positive health outcomes for pregnant women and newborn babies. The lack of access to health care for women on PDL jeopardized the health of new mothers and their infants.

Effective Jan. 1, 2012, SB 299 will fix this gap in the law. The legislation amends the PDL to make it an unlawful employment practice for an employer to refuse to maintain and pay for health insurance coverage under a group health plan for employees who are on leave for pregnancy or childbirth or related medical condition.

While the benefits of the new law are important and far-reaching, the obligations of employers are limited. First, employers only must continue benefits at the same level and under the same conditions that would have been provided if the employee had not been on leave. Therefore, workers who receive no health insurance benefits would not be entitled to such benefits by virtue of taking PDL. Likewise, workers who contribute a portion of their paycheck toward health benefits must continue to make the same contributions during PDL, even though the leave is unpaid.

Second, health benefits need only be continued for a maximum of four months. Moreover, most women do not need all four months of leave. Instead, in a typical pregnancy and childbirth, a woman will be considered "disabled" and thus eligible for leave beginning four weeks before her due date through six weeks post-childbirth (or eight weeks post-birth in the case of a C-section), for a total of 10 to 12 weeks. Of course, women who experience complications may be advised by their health care providers to go on bed rest earlier during pregnancy, and some women may need additional time to recover from childbirth or for a related condition such as postpartum depression. While an employer's obligation is capped at four months, the law does not preclude an employer from extending coverage beyond four months.

Third, the new law allows employers to recover the premiums it paid for an employee's health coverage in certain circumstances: If the employee fails to return from leave for a reason other than (1) the employee taking leave to bond with her new baby under the California Family Rights Act, (2) the continuation, recurrence or onset of a health condition that entitles the employee to PDL, or (3) another circumstance beyond the employee's control.

The passage of SB 299 comes in the context of a rise in employment discrimination against pregnant women. According to data from the Equal Employment Opportunity Commission, reports of pregnancy discrimination have increased nearly 30 percent since 2005. Over this period, pregnancy discrimination claims have climbed at a faster rate than discrimination claims overall, although both numbers fell slightly in fiscal years 2009 and 2010.

A 2009 report from the Center for American Progress states that 75 percent of women entering the workforce today will become pregnant at least once while working, and these women will generally remain in the workforce. The CAP report notes that "pregnant women have a stronger connection to the workforce than ever before, but public policy has done a very poor job of integrating them into the labor market."

SB 299 is a step in the right direction. By ensuring that pregnant women maintain access to health care when they are having a baby, the law provides critical benefits to women and their families.

Employers and employees alike should be aware of these new protections.

Sharon Terman is a senior staff attorney in the gender equity program of the Legal Aid Society-Employment Law Center in San Francisco. She represents workers with family and medical leave claims as well as claims of pregnancy, gender and disability discrimination. She also provides legal advice to low-income workers, engages in community education, and participates in legislative advocacy to expand workers' rights. She is the 2011 recipient of the Stanford Law School Miles L. Rubin Public Interest Award.