Posted 03-03-2013

Ana G. Fuentes Sanchez had worked for Swissport as a cleaning agent for about 18 months from 2007 to 2009, when she requested leave for a high risk pregnancy. Her leave was granted. After seven months of leave under California’s Pregnancy Disability Leave Law (“PDLL”) and the California Family Rights Act ((“CRFA”), sister act to FMLA), Swissport allegedly unceremoniously terminated her employment. Ms. Sanchez filed suit, asserting various common law claims, violations of the above statutes and violations of California’s Fair Employment Housing Act (“FEHA”). The latter violations involved allegations of gender (defined by the FEHA to include pregnancy related medical conditions) and disability discrimination, and failure to reasonably accommodate her pregnancy related disability.

Swissport filed a demurrer to the claims, asserting that the PDLL and CFRA put an upper limit of seven months on the amount of pregnancy related disability leave a person was entitled to and therefore all causes of action, including under the FEHA, failed to state claims. The trial court agreed, and dismissed the lawsuit. The court of appeals, in an opinion published just last week, concluded that the PDLL and CFRA/FMLA do not put an upper limit on the amount of leave a woman is entitled to, reasoning that the PDLL mandates up to four months of leave regardless of the hardship on the employer, and that the CFRA mandates that any such leave is consecutive to, and not concurrent with, any CRFA/FMLA leave. Such leave, up to 12 additional weeks, is mandatory, also regardless of the undue hardship to the employer.

However, the court went on to state that: “By its terms, the PDLL provides that its remedies are “in addition to” those governing pregnancy, childbirth, and pregnancy-related medical conditions set forth in the FEHA.”  Therefore, the court reasoned that the PDLL augments, but cannot supplant the additional provisions of the FEHA. It reversed the lower court and sent the case back.

On appeal from a demurrer, a court takes the plaintiff at her word. It will only resolve legal questions. Swissport can presumably raise in the lower court its defense to the FEHA claims by arguing that leave beyond seven months would create an undue hardship for it and therefore it would not be a reasonable accommodation to do so. However, this is a factual dispute, to be resolved by the trier of fact after a lengthy litigation process, with no guarantee of the ultimate result at trial.

What this means to you:

In California, you cannot rely on the mandatory leave periods in the PDLL and the CFRA/FMLA to state an upper limit on the amount of leave to which an employee is entitled. Outside California, this case may also be considered by state and federal decisions in determining whether the 12-week FMLA leave period or state law disability laws set an upper limit, or whether additional leave must be considered as an accommodation. Before terminating employment after mandatory leave periods are exceeded, you must evaluate whether granting additional leave would be a reasonable accommodation of a disability, or would create an undue hardship for the employer. This requires consultation with HR and Legal and a decision before action is taken!

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.