Cal. Code Regs. tit. 2 § 11035

Current through Register 2024 Notice Reg. No. 43, October 25, 2024

Section 11035 - Definitions

The following definitions apply only to this article:

(a) "Affected by pregnancy" means that because of pregnancy, childbirth, or a related medical condition, or "a condition related to pregnancy, childbirth, or a related medical condition," as set forth in Government Code section 12945, it is medically advisable for an employee to transfer or otherwise to be reasonably accommodated by her employer.

(b) "Because of pregnancy" means due to an employee's actual pregnancy, childbirth or a related medical condition.

(c) "CFRA" means the Moore-Brown-Roberti Family Rights Act of 1993. (California Family Rights Act, Gov. Code §§ 12945.1 and 12945.2.) "CFRA leave" means family care or medical leave as those leaves are defined at section 11087.

(d) A "condition related to pregnancy, childbirth, or a related medical condition," as set forth in Government Code section 12945, means a physical or mental condition intrinsic to pregnancy or childbirth that includes, but is not limited to, lactation. Generally lactation without medical complications is not a disabling related medical condition requiring pregnancy disability leave, although it may require transfer to a less strenuous or hazardous position or other reasonable accommodation.

(e) A "covered entity" is any person (as defined in Government Code section 12925), labor organization, apprenticeship training program, training program leading to employment, employment agency, governing board of a school district, licensing board or other entity to which the provisions of Government Code sections 12940, 12943, 12944 or 12945 apply.

(f) A woman is "disabled by pregnancy" if, in the opinion of her health care provider, she is unable because of pregnancy to perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy's successful completion, or to other persons. An employee also may be considered to be disabled by pregnancy if, in the opinion of her health care provider, she is suffering from severe morning sickness or needs to take time off for: prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; childbirth; loss or end of pregnancy; or recovery from childbirth, loss or end of pregnancy. The preceding list of conditions is intended to be non-exclusive and illustrative only. Nothing in this Article shall exclude a transgender individual who is disabled by pregnancy.

(g) An "eligible female employee" is an employee who qualifies for coverage under her employer's group health plan. An employee's pregnancy, childbirth, or related medical conditions are not lawful bases to make an employee ineligible for coverage. "Eligible female employee" includes a transgender employee who is disabled by pregnancy.

(h) "Employer," as used in these regulations, except for section 11036, is any employer with five or more full or part time employees, who is an employer within the meaning of Government Code section 12926, and section 11008(d), of these regulations. "Employer" includes the state of California, counties, and any other political or civil subdivision of the state and cities, regardless of the number of employees.

(i) "Employment in the same position" means employment in, or reinstatement to, the position that the employee held prior to reasonable accommodation, transfer, or disability leave because of pregnancy.

(j) "Employment in a comparable position" means employment in a position that is virtually identical to the employee's position held prior to reasonable accommodation, transfer, or disability leave in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. It must be performed at the same or geographically proximate worksite from the employee's prior position and ordinarily has the same shift or the same or an equivalent work schedule.

(k) "FMLA" means the federal Family and Medical Leave Act of 1993 and its implementing regulations. "FMLA leave" means family care or medical leave taken pursuant to FMLA.

(l) "Four months" means the number of days the employee would normally work within four calendar months (one-third of a year equaling 17 1/3 weeks), if the leave is taken continuously, following the date the pregnancy disability leave commences. If an employee's schedule varies from month to month, a monthly average of the hours worked over the four months prior to the beginning of the leave shall be used for calculating the employee's normal work month.

(m) "Group health plan" means medical coverage provided by the employer for its employees, as defined, as of December 30, 2012, in the Internal Revenue Code.

(n) "Health care provider" means:

(1) A medical or osteopathic doctor, physician, or surgeon, licensed in California, or in another state or country, who directly treats or supervises the treatment of the applicant's or employee's pregnancy, childbirth or a related medical condition, or "a condition related to pregnancy, childbirth, or a related medical condition," as set forth in Government Code section 12945, or

(2) A marriage and family therapist or acupuncturist, licensed in California or in another state or country, or any other persons who meet the definition of "others capable of providing health care services" under FMLA and its implementing regulations, including nurse practitioners, nurse midwives, licensed midwives, clinical psychologists, clinical social workers, chiropractors, physician assistants, who directly treats or supervises the treatment of the applicant's or employee's pregnancy, childbirth or a related medical condition, or "a condition related to pregnancy, childbirth, or a related medical condition," as set forth in Government Code section 12945, or

(3) A health care provider from whom an employer or a group health plan's benefits manager will accept medical certification of the existence of a health condition to substantiate a claim for benefits.

(o) "Intermittent leave" means leave taken in separate periods of time because of pregnancy, rather than for one continuous period of time. Examples of intermittent leave include leave taken on an occasional basis for medical appointments, or leave taken several days at a time over a period of several months for purposes related to pregnancy, childbirth or a related medical condition.

(p) "Medical certification" means a written communication, as specified in section 11050(b)(6) and (b)(7), from the employee's health care provider to the employer stating that the employee is disabled because of pregnancy or that it is medically advisable for the employee to be transferred to a less strenuous or hazardous position or duties or otherwise to be reasonably accommodated.

(q) "Perceived pregnancy" means being regarded or treated by an employer or other covered entity as being pregnant or having a related medical condition.

(r) "Pregnancy disability leave" is any leave, whether paid or unpaid, taken by an employee for any period(s) up to a total of four months during which she is disabled by pregnancy.

(s) "Reasonable accommodation" of an employee affected by pregnancy is any change in the work environment or in the way a job is customarily done that is effective in enabling an employee to perform the essential functions of a job. Reasonable accommodation may include, but is not limited to an employer:

(1) modifying work practices or policies;

(2) modifying work duties;

(3) modifying work schedules to permit earlier or later hours, or to permit more frequent breaks (e.g., to use the restroom);

(4) providing furniture (e.g., stools or chairs) or acquiring or modifying equipment or devices; or

(5) providing a reasonable amount of break time and use of a room or other location in close proximity to the employee's work area to express breast milk in private as set forth in the Labor Code.

(t) "Reduced work schedule" means permitting an employee to work less than the usual number of hours per work week, or hours per work day.

(u) A "related medical condition" is any medically recognized physical or mental condition related to pregnancy, childbirth or recovery from pregnancy or childbirth. This term includes, but is not limited to, lactation-related medical conditions such as mastitis; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; loss or end of pregnancy; or recovery from loss or end of pregnancy.

(v) "Transfer" means reassigning temporarily an employee affected by pregnancy to a less strenuous or hazardous position or to less strenuous or hazardous duties.

Cal. Code Regs. Tit. 2, § 11035

1. Change without regulatory effect renumbering former subchapter 6A (sections 7291.2-7291.18) to new article 6A (sections 11035-11051), renumbering former section 7291.2 to new section 11035 and amending section and NOTE filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Renumbering and amendment of former article 6A to article 6 and amendment of subsections (f)-(h), (k), (m), (q) and (s)(5) filed 12-9-2015; operative 4-1-2016 (Register 2015, No. 50).

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12926, 12940, 12943, 12944, 12945, 12945.1 and 12945.2, Government Code; Family and Medical Leave Act, (FMLA) 29 U.S.C. § 2601, et seq. and FMLA regulations, 29 C.F.R. § 825 ; Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000e; and J.E. Robinson v. Fair Employment & Housing Com. (1992) 2 Cal. 4th 226.