Transcript New FEHA Disability & Pregnancy Regulations

New FEHA
Disability &
Pregnancy
Regulations
Phyllis W. Cheng, Esq., Director
Department of Fair Employment & Housing
www.dfeh.ca.gov
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Overview

Part I: The DFEH’s new enforcement authority

Part II: Amendments to Disability Regulations.

Part III: Amendments to Pregnancy Disability
Regulations.

Practice Pointers.
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Part I.
The
DFEH’s New Authority
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SB 1038 FEHA Amendments
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Eliminates the DFEH’s sister agency, the Fair Employment and
Housing Commission (Commission), operative January 1, 2013.
(Stats.2012, c. 46 (S.B.1038), § 34, eff. June 27, 2012, operative Jan. 1,
2013; Legis. Counsel’s Dig., Sen. Bill 1038 (46 Stat. 2012) (Reg. Sess.)
Summary Dig. p. 3.)

Transfers the Commission’s regulatory function to the DFEH Fair
Employment & Housing Council. (Ibid.)

Ends administrative adjudication of FEHA claims. (Ibid.)
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Authorizes the DFEH to file cases directly in court. (Ibid.)
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Authorizes the DFEH to collect attorney fees and costs when it is the
prevailing party in FEHA litigation. (Ibid.)
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DFEH Organization Chart
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DFEH Employment Flowchart
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2011 DFEH Accusations Issued
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2011 DFEH Complaints Filed by Bases
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DFEH Innovations and Efficiencies
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Automation: implemented appointment and Right-to-Sue systems; deploying
new cloud-based Case Management System.
Intake reform: implement telephone intake; cease in-person intake.
Office consolidations: 50% overhead reductions.
Staff development: monthly training; no layoffs; 50% promotions.
Triage investigations: developed case grading system to triage cases.
Target systemic discrimination: re-establish Special Investigations Unit.
Maximize statutory authority: file Director’s, group/class complaints.
Dispute resolution: develop new Mediation Division.
Regulatory reform: issue procedural regulations and rescind underground
regulations.
New partnerships: DFEH-UC|CSU|Community College clinical programs; training
future civil rights lawyers and investigators; Civil Rights Graduate Fellowship
pipeline program.
Outreach: in-person, webinars and social media outreach.
Contract compliance: revitalizing Office of Compliance Programs.
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Budget
Staffing
Complaints
Settlements
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Effects of Case Grading, SIU and Mediation Innovations
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Effects of Case Grading
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Part II.
New Disability Regulations
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Overview of New Disability Regulations
Disability Regulations had not been updated since
1995.
 Many amendments to the statute and important
case decisions since that time.
• Effective December 30, 2012.
• http://www.dfeh.ca.gov/res/docs/FEHC%20Disa
bility%20Regs/FEHC%20FINAL_DISABILITy_REGS_12
-18-12%20_2_.pdf.
 New regulations reflect the current language of
the statute and case law.
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Disability Regulations
1.
Expanded definition of what is a “disability.”
 Addition of new conditions – including
autism spectrum disorders, clinical
depression, post-traumatic stress disorder,
obsessive compulsive disorder, cerebral
palsy, HIV/AIDS, seizure disorder, multiple
sclerosis, heart disease.
 Practical Tip: almost any condition is a
disability.
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Disability Regulations
2.
Additional details provided on an employer’s
interactive process obligations.
 Affirmed it is a separate, “stand alone” obligation.
 Triggers.
 Employer is made aware of need for
accommodation by third party or observation.
 Applicant/employee specifically requests
accommodation.
 Employee with a disability exhausts leave under
WC/CFRA/FMLA and the employee’s healthcare
provider indicates further leave is needed.
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Interactive Process
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Who can/should participate in interactive process
discussions?
 Employer (usually human resources, employee
health, manager).
 Employee/applicant.
 Employee’s representative (if necessary because
of the disability or other circumstances).
 Practical Tip: Handling request for participation
of counsel.
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Certification
 Reasonable
medical documentation
confirming.
 Employee has physical/mental
condition that limits a major life
activity.
 Description of why the employee
needs a reasonable
accommodation.
 Nature of disability need not be
provided.
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Other Factors
 What
can employer rely upon?
 Medical certification from employee.
 Name and credentials of healthcare
provider to verify he/she is qualified to
opine in the area in question.
 Current/updated job descriptions and
performance reviews for determining
what are essential job functions.
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Examples of Reasonable
Accommodation
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Reasonable accommodation examples
 Leave of absence.
 Burden on employee to show that leave will
be effective in allowing employee to return to
work within a reasonable time period.
 FEHC refused to establish a bright line test on
how long leave must be and instead relied on
“undue hardship” standard on case-by-case
basis.
 Reassignment to vacant alternative position.
 Employers are required to give preference to
disabled employees (except employer is not
required to ignore bona fide seniority system).
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More Examples of Reasonable
Accommodation

Reasonable accommodation examples.
 Modified duty.
 Practical Tip: Legality of modified duty
programs reserved for workers’
compensation employees.
 Teleworking.
 Assistive animals.
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Not Reasonable
Accommodation
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Examples of what is not a reasonable
accommodation
 Creating
a new position
 Transforming a temporary light duty position
into a permanent one
 Lowering quantity/quality standards
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Hypothetical 1:
 An
employee with a doctor’s note
requests permission to bring her
companion animal, a tabby cat, to
the office as an accommodation to
lower her blood pressure. Another
employee has a doctor’s note stating
he is allergic to animal dander and
frightened of cats.
 What
should you do?
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Answers to Hypothetical 1:
a)
b)
c)
d)
Engage in the interactive process with
both employees to find a reasonable
accommodation.
Let the employee with the
companion animal bring it to work
Forbid the employee with the
companion animal bring it to work.
Build a new wing of the office for
employees with companion animals.
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Post-Offer Medical
Examinations
3.
Post-offer medical examinations.
Employer may conduct medical exam only
after all non-medical components of its
application process are completed (or if
employer is able to demonstrate that it could
not reasonably have done so before issuing the
offer).
 If offer is withdrawn, employer must show that
applicant is unable to perform the essential
duties with or without reasonable
accommodation or would endanger health/
safety of employee or others.
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Common Employer Mistakes
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Assuming worker’s compensation is the exclusive
remedy for work-related injuries.
Following a “100%” healthy rule before an
employee can return to work.
Failing to consider vacant positions.
Refusing to grant a reasonable accommodation
due to a reliance on company rules.
Relying on a job description that does not
accurately reflect the employee’s job.
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Mixed Motive: Harris v. City of
Santa Monica
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Harris v. Santa Monica (2013) 56 Cal.4th 203.
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We hold that under the FEHA, when a jury finds that
unlawful discrimination was a substantial factor motivating
a termination of employment, and when the employer
proves it would have made the same decision absent such
discrimination, a court may not award damages, backpay,
or an order of reinstatement. But the employer does not
escape liability. In light of the FEHA’s express purpose of
not only redressing but also preventing and deterring
unlawful discrimination in the workplace, the plaintiff in this
circumstance could still be awarded, where appropriate,
declaratory relief or injunctive relief to stop discriminatory
practices. In addition, the plaintiff may be eligible for
reasonable attorney’s fees and costs.
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Part III.
Pregnancy Disability Regulations
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Overview of New Disability Regulations
Disability Regulations had not been updated since
1995.
 Many amendments to the statute and important
case decisions since that time.
• Effective December 30, 2012.
• http://www.dfeh.ca.gov/res/docs/FEHC%20Disa
bility%20Regs/FEHC%20FINAL_DISABILITy_REGS_12
-18-12%20_2_.pdf.
 New regulations reflect the current language of
the statute and case law.

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Key Changes in Pregnancy
Regulations
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Two key areas of focus.
 Additional guidance on pregnancy disability
leave obligations.
 Imposes reasonable accommodation
obligations for conditions occasioned
“because of” or “related to” pregnancy or
childbirth.
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Disabled by Pregnancy
1.
Expanded definition of who is “disabled by a pregnancy”
 Employee is unable to perform any one or more of
the essential functions of her job or to perform them
without undue risk to herself, to her pregnancy’s
successful completion, or to other persons.
 Employee is suffering from severe morning sickness.
 Employee 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.
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Pregnancy Conditions
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Based on opinion of health care provider.
List is illustrative, not exclusive.
Practical Tip: Less-common conditions may
trigger leave obligations.
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Four Months
2.
Clarification of what does “4 Months”
mean.
4
months means time off for the number of
days or hours the employee would normally
work within four calendar months if the leave
is taken continuously.
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If an employee’s schedule varies from month to
month, employer should use monthly average of
the hours worked over the four months prior to
the beginning of the leave.
Entitlement is per pregnancy, not year .
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Intermittent Leave
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Intermittent leave.
 An employer may account for increments of
intermittent leave using an increment no
greater than the shortest period of time that
the employer uses to account for use of other
forms of leave.
 In any event, employer may not account for
intermittent leave in increments greater than
one hour.
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Examples
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Examples:
 If an employee has a regular schedule
— multiply weekly hourly schedule by 17
1/3 weeks. This is the number of leave
hours available to employee.
 Employee who works 20 hours per
week — “four months” is 346.5 hours of
leave entitlement.
 Employee normally works 48 hours per
week, “four months” is 832 hours of
leave entitlement.
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Variable Shifts
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If variable shifts:
 Regulations are not entirely clear.
 For employees who work a variable work
schedule, the number of working days that
constitutes “four months” is calculated on a
pro rata or proportional basis.
 Could be average weekly hours x 17 1/3.
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Holidays and Other Temporary
Business Closures
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If a holiday falls within leave, the holiday is
counted as pregnancy disability leave.
If employer’s business activity temporarily
ceases for one or more weeks, the days the
employer’s activities cease do not count
against pregnancy disability leave.
Practical Tip: Develop calculations
spreadsheet, mechanism to track leave,
and train LOA coordinators.
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Reintatement
3.
Reinstatement obligations.
 In general, employer has affirmative obligation to
reinstate employee returning from leave or when job
transfer is no longer medically advisable to same
position.
 Employer shall provide the guarantee of
reinstatement in writing upon request of the
employee.
 Employer must comply with agreed upon date of
reinstatement.
 If no date was agreed or there is a change in the
reinstatement date, the employer must reinstate the
employee within 2 business days .
 If 2 business days is not feasible, reinstatement must
be made as soon as it is possible.
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Reinstatement Defenses
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Reinstatement defenses.
 Reinstatement to same position not required if
employee would not have otherwise been employed
in her same position at the time reinstatement is
requested for legitimate business reasons unrelated to
pregnancy leave/transfer
(e.g., layoff).
 But employer must offer comparable position – unless
it would not have offered comparable position or
none available.
 Available position means position available within
60 days from reinstatement.
 Employer must give employees notice of available
jobs – improper to place burden on employee.
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Practice Pointer
 Practical
Tip: Train managers of
obligation to hold position open
for entire leave and what options
are available for temporary
assistance during leave
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Pregnancy Disability Leaves
4.
Other leave requirements
 Employer may require employee to use sick time, but not
vacation time
 Benefits must continue for duration of the leave
 After expiration of PDL, employee may be eligible for
CFRA leave
 New notices to be given employees affected by
pregnancy for employers with less than 50 employees
(Notice A), and employers with 50 or more employees
(Notice B)
 Requires employers who choose to require medical
certification from employee to notify employee in writing
and provide a form for the medical provider to
complete. Employers may develop their own form or use
the template in the regulation
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Expanded Employmer
Obligations
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New regulations expand employer’s obligation
to accommodate/transfer employee who is
“affected by a pregnancy.”
Includes any physical/mental condition
occasioned “because of” or “related to”
pregnancy or childbirth.
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Examples: 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.
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Interactive Process Obligations
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Interactive process obligations.
 Regulations do not provide detailed
guidance on what this means; or
 Potential impact.
 Can employer argue that particular
accommodation is unreasonable or
created an undue hardship?
 Can employer propose other
accommodations or choose amongst
other options which may also be
effective?
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Standards for Reasonable
Accommodation
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Standards for reasonable accommodation.
 Reasonable accommodations (including
transfers) need only be “medically advisable”
not necessarily “medically required.”
 Accommodation needs to be reasonable
 Factual determination on case-by-case,
taking into account medical needs,
duration, legally past/current practices
 Consider totality of circumstances.
 For transfers, employer need not create new
job position, violate CBA, or transfer another
employee with more seniority.
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Examples of Reasonable
Accommodation

Examples of reasonable accommodation.
 Modifying work practices or policies.
 Modifying work duties.
 Modifying work schedules to permit earlier or later
hours, or to permit more frequent breaks (e.g., to use
the restroom).
 Providing furniture or modifying/furnishing equipment
or devices.
 Providing a reasonable amount of break time and use
of a room/other location in close proximity to the
employee's work area to express breast milk in private.
 Transfer to a less strenuous position.
 Intermittent leave.
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Hypothetical 2
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An employee, disabled by a highrisk pregnancy, has exhausted all
permissible leave. The employer
considers terminating her.
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Answer to Hypothetical 2 :
Should the employer?
a) Terminate the employee.
b) Engage in the internative
process.
c) Provide reasonable
accommodation.
d) B & C.
Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th
1331, FEHA Pregnancy Disability Leave
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Employer Best Practices
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Update leave and reasonable accommodation policies/forms:
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Leave of absence policy.
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Leave request forms, flowcharts, etc.
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Reasonable accommodation request forms.
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Job descriptions.
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Post and disseminate notices.
 Include perceived pregnancy in harassment/discrimination policies.
 Train HR, employee health, managers/supervisors on triggers for interactive
process, reasonable accommodation and leave obligations.
THANK YOU
.
www.dfeh.ca.gov
[email protected]
800) 884-1684
Videophone (916) 226-5285