CHANGES TO CALIFORNIA'S PREGNANCY AND DISABILITY DISCRIMINATION REGULATIONS
By Jennifer Brown Shaw and William D. Bishop
The Daily Recorder
This year, the Department of Fair Employment and Housing will administer and enforce newly revised regulations addressing discrimination based on pregnancy and disability. The final regulations, which took effect on December 30, 2012, are the product of years of rulemaking proceedings, public hearings and comments. Some of the amendments are technical or simply update terminology. However, the agency has also substantially modified the previous regulations in a number of ways. Below are the key provisions.
When applicable, California employers must provide a "pregnancy disability leave" or PDL independent of job-protected leave under the California Family Rights Act (CFRA), or the Family and Medical Leave Act (FMLA). The new regulations provide more detail regarding this leave.
Employees "disabled by pregnancy" are entitled to leave, transfer to a less strenuous or hazardous position, or other reasonable accommodation. The definition of "disabled by pregnancy" now may include a pregnant employee's inability to perform a single essential job function. Examples of "disabled by pregnancy" include conditions such as pre-natal or postnatal medical care and post-partum depression.
The regulations clarify that employees merely "perceived" to be pregnant, although protected from discrimination, are not entitled to leave, transfer or accommodation. It remains to be seen how this new protection for "perceived" pregnancy will be applied.
The regulations explain how employers calculate the "four month" period of leave guaranteed by the statute. The maximum PDL is 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 the 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 is used for calculating the employee's normal work.
The definition becomes more involved under the new regulations when the employee works a reduced schedule or takes leave intermittently. Incidentally, the new regulations borrow from the FMLA's definition of "intermittent leave." The previous regulations did not define that term.
The regulations also provide guidance regarding the employer's obligation to provide "reasonable accommodation" to women disabled by pregnancy. The obligation to accommodate is independent of leave, unless time off is the accommodation. The regulations require employers to engage in an interactive process to determine appropriate accommodations.
The Commission reworded the written notices that employers are required to post and provide to employees who are affected by pregnancy, commonly referred to as "Notice A" and "Notice B" (Notice B applies to employers covered by the FMLA/CFRA, and Notice A applies to all other employers). The revised notices include more information about PDL and reasonable accommodation, and describe the employer's obligation to give notice to employees about their rights to take leave, transfer, or otherwise be reasonably accommodated. They also inform employees about their obligation to give employers reasonable notice of their need for leave, transfer, or accommodation.
The regulations require employers to notify employees if they require employees to obtain medical certification of disability. There is a sample certification form available for employers' use.
The new disability discrimination regulations primarily update the old regulations, which did not take into account many statutory and judicial developments in the law. The regulations include several updates to the definition of "disability" to conform to the federal ADA Amendments Act of 2008 and the broad definition contained in Government Code Section 12926.1. The Commission added a section providing some examples of disabilities to include "chronic and episodic conditions" and even temporary disabilities. There are a few exclusions from the term "disability," such as the common cold, mild cuts or abrasions, and the flu.
To conform to both Government Code Section 12926(i)(2) and the federal Genetic Information Non-discrimination Act of 2008 ("GINA"), the regulations clarify that the term "medical condition" may include a "genetic characteristic."
The regulations add guidance regarding "essential job functions" to conform to legal developments. The elements of a discrimination claim now require the employee to establish he or she can perform the job's essential functions, with or without accommodation.
The Commission also added detail regarding the "interactive process" obligations for both employers and employees, which conforms to the California Fair Employment and Housing Act and the federal EEOC's interpretative guidance. Of note, an employee's exhaustion of CFRA or FMLA medical leave is now considered notice to the employer that the employee may need an accommodation. Additionally, the regulations specify employees' obligations to cooperate and facilitate the employers' requests for information from the employee and his or her healthcare provider.
The regulations' discussion of reasonable accommodation generally tracks case law developments. They recognize a medical leave as a form of accommodation, but expressly state employers need not provide "indefinite" leave. Employers also do not have to remove essential job functions to accommodate.
The regulations also contain a definition of "assistive animal," and describe the requirements an employer may impose before allowing an assistive animal into the workplace.
California employers must review and revise as needed their pregnancy disability and reasonable accommodation policies and procedures. Employers should also update their posters and notices to comply with the revised notices. Employers requiring medical certifications should revise their forms to comply with the new regulations. In addition, employers using medical questionnaires as part of their interactive process should ensure their forms are consistent with the new guidance. There may be parts of the new regulations that affect your business and are not covered in this article. Contact your employment law counsel for more information.