REPRESENTING UNIONS & EMPLOYEES SINCE 1936
facebook twitter linkedin youtube

Oakland: 510.625.9700 | Sacramento: 916.325.2100

California Has New Pregnancy and Disability Discrimination Regulations

January 30, 2013 by

On December 30, 2012, new sets of pregnancy and physical and mental disability discrimination regulations went into effect. Issuing the regulations was one of the last acts of the Fair Employment and Housing Commission before it was eliminated at the end of the year. The regulations provide helpful guidance about protections to which employees and job applicants are entitled in the State of California. Highlights of the two sets include the following:

Pregnancy Regulations

  • The new pregnancy regulations apply to applicants and employees affected by pregnancy, childbirth and related medical conditions, or the perception that the person has any of those characteristics. A “medical condition” includes lactation and medical conditions related to lactation.
  • Employers are required to provide reasonable accommodation for employees affected by pregnancy if the request is “reasonable” and is based on her health care provider’s medical advice. As with other disabilities, the employer and employee must engage in an interactive process to identify and implement the employee’s request. In considering accommodations, the employer is not required to create a new position, dismiss another employee, violate the terms of a CBA, transfer a more senior employee, or promote or transfer any employee who is not qualified to perform the new job.
  • The four-month leave to which an employee is entitled if disabled by pregnancy may be taken all at once, on a reduced schedule, or intermittently. If the employee works fewer hours or takes intermittent leave, those hours may be deducted from the four-month leave entitlement.
  • An employee is entitled to group health coverage during her pregnancy disability leave. The regulations clarify that an employer’s obligation to pay for group health coverage during a leave under the California Family Rights Act (CFRA) or federal Family Medical Leave Act (FMLA) is a separate entitlement to the continuation of group health coverage during a pregnancy disability leave. For example, if an employee is eligible for seven months of combined CFRA and pregnancy leave, then she is entitled to continued group health coverage for the entire seven months.
  • An employee is guaranteed reinstatement after a pregnancy leave or transfer, unless the employment would have ceased for reasons unrelated to taking the leave, e.g., a layoff. If the employer fails to reinstate the employee, it must offer the employee a comparable job within 60 days of the employee’s scheduled return date.

Physical and Mental Disability Regulations

  • An applicant or employee has the burden of proving that he or she is a “qualified individual capable of performing the essential functions of the job, with or without reasonable accommodation.” Discrimination is established if a preponderance of the evidence demonstrates a causal connection between a qualified individual’s disability and the denial of an employment benefit. The disability does not have to be the sole or dominant reason for the denial of the benefit, so long as it is one of the factors that influenced the employer.
  • The definition of disability has been expanded to include “special education disabilities.” Because an individual assessment is required to determine if a person is disabled, conditions such as obesity are not excluded. However, an applicant or employee who uses medical marijuana is not protected as a “qualified individual” when an employer acts on the basis of such use.
  • An employer has an affirmative duty to provide reasonable accommodation for a disabled applicant or employee if it knows of the disability, unless the employer can show undue hardship.
  • An employer has an affirmative duty to initiate an interactive process whenever it becomes aware of a need for accommodation. The employer may become aware by observation, from a third party, or when the employee has exhausted leave under CFRA/ FMLA for his or her own serious health condition, Workers Compensation, or some other leave provision, and more recuperative leave is still needed. The employer may not ask about the underlying causes of the disability or the employee’s diagnosis, and the employee is not required to disclose the nature of the disability.
  • An employer must consider all reasonable accommodations, including the preference of the applicant or employee. A disabled employee is entitled to preferential consideration of reassignment to a vacant position unless it conflicts with seniority rules.
  • The list of possible reasonable accommodations now includes holding a job open for a disabled employee who needs time to recuperate or heal. The regulations do not impose a time limit for the leave and do not require the employee to give an ending date, but a reasonable accommodation leave may not be indefinite. Allowing employees to bring “assistive animals” to work also is considered a form of reasonable accommodation.
  • The employer may require “reasonable medical documentation” from a health care provider but only if the disability is not obvious or if medical documentation previously has not been provided. For accommodations that extend beyond a year, the employer is limited to requesting medical documentation once a year. Acupuncturists and marriage and family therapists have been added to the list of health care providers who may certify an employee’s disability and need for reasonable accommodation.
  • An employer may not impose a “100% healed” rule on an employee before allowing the employee to return to work after an illness or injury.
  • Medical information obtained during the interactive process must be kept confidential. It may not be retained in an employee’s personnel file. Only restrictions on work or duties may be provided to supervisors and managers.

The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.