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Disability & Pregnancy Leave: New FEHA Regulations
Megan Elsea, Staff CounselDepartment of Fair Employment & Housingwww.dfeh.ca.gov
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Overview
Part I: Amendments to Disability Regulations.
Part II: Amendments to Pregnancy Disability Regulations.
Practice Pointers.
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2011 DFEH Complaints Filed by Bases
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Part I.
New Disability Regulations
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Basics of Reasonable Accommodation
Disability= condition that limits a major life activity
Employer must interact with employee to discover appropriate accommodations when it learns the employee is disabled
An employee must be able to do the essential functions of the job with or without accommodation
An employer does not have to accommodate if it is an undue hardship
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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 Regulations1. 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 Regulations2. 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 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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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.
Certification
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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
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
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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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 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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Part II.
Pregnancy Disability Regulations
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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.
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Disabled by Pregnancy1. 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
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 Months2. 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 .
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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.
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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.
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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.
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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.
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Reintatement3. 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 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
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.
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Interactive Process Obligations
Interactive process obligations.Regulations do not provide detailed guidance
on what this means; orPotential 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
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
An employee, disabled by a high-risk pregnancy, has exhausted all permissible leave. The employer considers terminating her.
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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.
Use the Q&A menu to submit questions. To ask a question, type your question in the Q&A text
box, and then click Ask.
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