California Code of Regulations › Title 2 - Administration › Division 4.1 - Civil Rights Department › Chapter 5 - Civil Rights Council › Subchapter 2 - Discrimination in Employment › Article 6 - Pregnancy, Childbirth or Related Medical Conditions › Section 11035 - Definitions

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
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.