New FEHA Disability & Pregnancy Regulations

1. New FEHA Disability & Pregnancy Regulations Phyllis W. Cheng, Esq., Director Department of Fair Employment & Housing www.dfeh.ca.gov

2. Overview • Part I: The DFEH’s new enforcement authority • Part II: Amendments to Disability Regulations. • Part III: Amendments to Pregnancy Disability Regulations. • Practice Pointers.

3. Part I. • The DFEH’s New Authority

4. SB 1038 FEHA Amendments • 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.) • Authorizes the DFEH to file cases directly in court. (Ibid.) • Authorizes the DFEH to collect attorney fees and costs when it is the prevailing party in FEHA litigation. (Ibid.)

5. DFEH Organization Chart

6. DFEH Employment Flowchart

7. 2011 DFEH Accusations Issued

8. 2011 DFEH Complaints Filed by Bases

9. DFEH Innovations and Efficiencies • 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.

10. Budget Staffing Complaints Settlements

11. Effects of Case Grading, SIU and Mediation Innovations

12. Effects of Case Grading

13. Part II. New Disability Regulations

14. 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%20Disability%20Regs/FEHC%20FINAL_DISABILITy_REGS_12-18-12%20_2_.pdf. • New regulations reflect the current language of the statute and case law.

15. Disability Regulations • 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.

16. Disability Regulations • 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.

17. Interactive Process • 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.

18. 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.

19. 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.

20. Examples of Reasonable Accommodation • 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).

21. 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.

22. Not Reasonable Accommodation • 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

23. 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?

24. Answers to Hypothetical 1: • 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.

25. Post-Offer Medical Examinations • 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.

26. Common Employer Mistakes • 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.

27. Mixed Motive: Harris v. City of Santa Monica • Harris v. Santa Monica (2013) 56 Cal.4th 203. • 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.

28. Part III. Pregnancy Disability Regulations

29. 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%20Disability%20Regs/FEHC%20FINAL_DISABILITy_REGS_12-18-12%20_2_.pdf. • New regulations reflect the current language of the statute and case law.

30. Key Changes in Pregnancy Regulations • 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.

31. Disabled by Pregnancy • 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.

32. Pregnancy Conditions • Based on opinion of health care provider. • List is illustrative, not exclusive. • Practical Tip: Less-common conditions may trigger leave obligations.

33. Four Months • 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. • 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 .

34. Intermittent Leave • 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.

35. Examples • 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.

36. Variable Shifts • 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.

37. Holidays and Other Temporary Business Closures • 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.

38. Reintatement • 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.

39. Reinstatement Defenses • 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.

40. 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

41. Pregnancy Disability Leaves • 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

42. Expanded Employmer Obligations • 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. • 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.

43. Interactive Process Obligations • 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?

44. Standards for Reasonable Accommodation • 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.

45. 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.

46. Hypothetical 2 •  An employee, disabled by a high-risk pregnancy, has exhausted all permissible leave. The employer considers terminating her.

47. Answer to Hypothetical 2 : Should the employer? • Terminate the employee. • Engage in the internative process. • Provide reasonable accommodation. • B & C. Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, FEHA Pregnancy Disability Leave

48. Employer Best Practices • Update leave and reasonable accommodation policies/forms: • Leave of absence policy. • Leave request forms, flowcharts, etc. • Reasonable accommodation request forms. • Job descriptions. • 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.

49. THANK YOU . www.dfeh.ca.gov contact.center@dfeh.ca.gov 800) 884-1684 Videophone (916) 226-5285