The New Disability and Pregnancy Regulations

1. The New Disability and Pregnancy Regulations Phyllis W. Cheng, Esq., Director Department of Fair Employment & Housing Patti Perez, Esq., President/CEO Puente Consulting Chelsea D. Spuck, Esq. Seyfarth Shaw LLP

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 Complaints Filed by Bases

8. 2011 DFEH Accusations Issued

9. Part II. New Disability Regulations

10. 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.

11. Overview of New Disability Regulations • Provide detailed guidance as to: • What constitutes a disability. • What is a major life activity. • How to accommodate an employee/applicant. • What is an undue hardship. • An employer’s defenses. • Provide details on interactive process obligations. • Clarify process for post-offer medical examinations. • What was not adopted.

12. Disability Regulations • Clarification of what is a “disability” • FEHA definition of what is a disability: • Physical disability: • Physical condition or disorder that affects a major bodily system. • Limits a major life activity. • Mental disability: • Having any mental or psychological disorder or condition that limits a major life activity. • Limits means simply that the condition makes achievement of the major life activity difficult.

13. Major Life Activity • Further defined to include “standing, sitting, reaching, lifting, bending, learning, reading, concentrating, thinking, communicating, and interacting with others” and “operation of bodily functions” as major life activities. • Adopted “general population” measurement standard for “difficulty” to determine whether an impairment is limiting.

14. Conditions Listed in FEHA • HIV/AIDS • Hepatitis, epilepsy, diabetes • Clinical depression • Bipolar disorder • Seizure disorder • Multiple sclerosis • Heart disease

15. Regulations Supplement and Clarify Definitions • Specific Learning Disability. • Intellectual and Cognitive Disability. • Replaces term “mental retardation.” • Intended to include concerns such as confusion, forgetfulness and difficulty concentrating that may result from brain injuries or medication side effects. • Organic Brain Syndrome. • Autism Spectrum. • Schizophrenia. • Post-Traumatic Stress Disorder. • Obsessive Compulsive Disorder.

16. Regulations Add • Added “special education” disability to conform to the definition of individuals with disabilities under the federal Individuals with Disabilities Education Act (IDEA), and its implementing regulations. • Provides a “catch-all” for conditions not specifically otherwise encompassed by the definitions of mental or physical disabilities that have required in the past special education or related services. • Excludes those requiring services unrelated to health impairment or mental or psychological disorder, such as ESL services.

17. Clarifications and Updates • Updated definitions of “record or history of disability” and “perceived disability” to conform with FEHA. • Grouped “regarded as,” “treated as” and “perceived as” together to indicate they can be used interchangeably. • Added reference to mental impairment under cancer-related health impairment to confirm protection for lesser known symptoms of cancer treatment. • Added “genetic characteristic” as a medical condition to conform with GINA and FEHA. • Expands definition of health care provider to conform with FMLA and allow “others capable of providing health care services.”

18. Practice Pointer • Almost any condition is a disability under the FEHA, except for those conditions expressly listed in the FEHA and/or regulations as being excluded.

19. Not Considered Disability under FEHA • Current use of illegal drugs. • Although those not currently using illegal drugs but in rehabilitation from such use may be covered. • Psychoactive substance use disorders resulting from current unlawful use of controlled substances or other drugs. • Pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, compulsive gambling. • Conditions that are mild, which do not limit a major life activity, as determined: • On a case-by-case basis. These excluded conditions have little or no residual effects, • Such as the common cold; seasonal or common influenza; minor cuts, sprains, • Muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and • Minor non-chronic gastrointestinal disorders.

20. Essential Functions • Clarification of statutory definition. • As evidence of whether a job function is “essential”: • Clarifies need for “accurate, current written job descriptions.” • Limits evidence to “legitimate business consequences” of non-performance of a function instead of “any consequences.” • Adds “reference to the importance of the performance of the job function in prior performance reviews.”

21. Qualified Individual with a Disability • Clarifies that the California Supreme Court’s holding in Green v. State of California (2007) 42 Cal.4th 254, 263, makes it a part of the applicant’s or employee’s burden in a disability discrimination claim to prove he or she was an otherwise qualified individual with a disability. • Inability to perform - no longer an affirmative defense, but employee must show able to perform with or without reasonable accommodation.

22. Reasonable Accommodation • Adds definition for reasonable accommodation to clarify statutory obligation. • Clarifies it had to be “effective in enabling” not simply “enable” to emphasize to be an “accommodation,” it must overcome the limitation. • Emphasizes the “affirmative” nature of the employer’s duty to provide reasonable accommodation.

23. 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). • Can be lower grade position if the individual is qualified and there are no comparable positions available.

24. Reasonable Accommodation • Examples not expressly set forth in statute. • Added transfer to a more accessible worksite. • Added reallocation of marginal job functions as an example of a possible reasonable accommodation. • Added alteration of when and how an essential function is performed. • Added modification of employer policy and supervisory methods. • Modified duty. • Practical tip: Legality of modified duty programs. • Teleworking. • Assistive animals.

25. Assistive Animals • Defined as a trained animal necessary as a reasonable accommodation for a person with a disability. • Adapted rules from Civil Code section 54.1. • Intended to strike a balance between the employee’s need for an assistive animal as a reasonable accommodation and the employer’s need to ensure that the assistive animal provides effective accommodation without disrupting the working environment.

26. Sample Types of Assistive Animals • Service – As defined in Civil Code section 54.1 or other animal individually trained to the requirements of a person with a disability. • Guide - As defined in Civil Code section 54.1, trained to guide a blind or visually impaired person. • Signal - As defined in Civil Code section 54.1, or other animal trained to alert a deaf or hearing impaired person to sounds. • Support – Dog or other animal that provides emotional or other support to a person with a disability.

27. Rules for Assistive Animals • Employers may require that an animal: • Possess appropriate cleanliness, grooming & toilet habits. • Display non-disruptive behavior, including not soliciting food or attention, no unnecessary vocalizing, and no aggression toward people or other animals. • Be trained to provide assistance for the employee’s disability, to do so in public, and to obey the employee’s verbal and nonverbal commands.

28. Certification for Animal • Employers may require a certification from a health care provider: • Confirming the existence of a disability; and • Explaining why the animal is necessary in the workplace to allow the employee to perform his/her duties. • Employer may require confirmation from employee that the animal meets the standards outlined in the regulations.

29. Hypothetical No. 1 • An employee comes to you with a doctor’s note requesting permission to bring her pet, a small older dog, into the office as an accommodation for her anxiety condition. This is the third accommodation request she has made for this condition and the prior two had been unsuccessful. You grant this request and for two weeks see great improvement in her work and demeanor. • Another employee then complains that she has a paralyzing fear of dogs and brings in a doctor’s note specifically referencing the fear, and that it brings upon panic attacks, which prevent her from working. • A third employee brings in a doctor’s note as well, expressing her very severe pet dander allergy, which requires the use of a strong medication that impairs her ability to run the very complicated machine she was hired to operate.

30. Practice Points • Assistive animals are listed as a potential reasonable accommodation but is not “reasonable” in every situation. • Much like every reasonable accommodation, it must be analyzed on a case by case basis and not be an undue hardship on the employer. • Not every animal is appropriate for the workplace or for a specific workplace.

31. What is Not a Reasonable Accommodation • Offering a temporary job (an employee may reject it without his or her ending of the interactive process). • Creating a new position. • Transforming a temporary light duty position into a permanent one. • Lowering its quality and quantity of work standards as an accommodation, but employer may need to accommodate an employee with a disability to enable him to meet its standards for quality and quantity. • An employer must adjust production standards on a pro rata basis for an employee who on full-time or part-time leave as an accommodation by excluding the leave time taken from its assessment of the employee’s productivity.

32. Hypothetical No. 2 • On a Monday, an employee who has been with the company for eleven months, but with a long pattern of well-documented performance issues, is told to come in early Tuesday for a meeting with Human Resources. Human Resources had been leaning toward terminating the employee but wanted to give him one last chance. • He then no-call/no-shows for two days in a row and calls to his home to inquire about his well-being go unanswered. • Thursday morning, his girlfriend calls and reports that he is depressed and unable to return to work until Monday. • On Monday, he presents a note that states he cannot endure stressful interactions, will require “additional breaks,” and will need to “periodically take off work for appointments.” • When Human Resources attempts to discuss the situation with him, he becomes agitated and insists his doctor will not permit it, but his girlfriend can be available to discuss it.

33. Interactive Process • Additional details provided on an employer’s interactive process obligations • Emphasis that 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.

34. Employer’s Obligations • Either grant the accommodation or after due consideration reject it and initiate discussion regarding alternate accommodation. • If the disability or need for accommodation is not obvious, the employer may require reasonable medical documentation. • The employer is not permitted to ask about the underlying medical cause of the disability but may require additional information as discussed below. • The employer must provide additional time for the employee to clarify information if clarification is needed to assess the request.

35. Employer’s Obligations • To assess the request or advance the process, the employer shall analyze the particular job involved and essential functions. It may consult experts. • The employer must identify potential accommodations and assess potential effectiveness of each. • The employer shall consider the employee’s preference but ultimately has the right to implement an effective accommodation. • If reassignment, considered, the employer may request additional experience and education information to determine if alternate positions exist.

36. Participation in 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). • Practice pointer- Handling request for participation of counsel.

37. Employee’s Obligations • Cooperate in good faith. • Provide reasonable medical documentation confirming: • Employee has physical/mental condition that limits a major life activity. • Description of why the employee needs a reasonable accommodation. • Must provide concise list of restrictions. • Nature of disability need not be provided. • Query – must certification be provided for all accommodation requests or only if disability is not obvious? • Provide educational or experience information if reassignment is considered.

38. Seeking Additional Examination • Employer may require the employee go to an appropriate health care provider of the employer’s choice if: • Documentation from health care provider is insufficient because it does not specify the existence of disability and explain need for accommodation, or • Health care provider lacks the expertise to confirm the disability or need for accommodation, or • Objective factors indicate the information is not credible or fraudulent

39. Additional Key Points • An employee’s inability to participate in the interactive process does not constitute a break down. • For reasonable accommodations lasting more than a year, the employer may seek medical substantiation on a yearly basis.

40. 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). • Must be a bona fide offer. • All other employees in similar positions are subjected to the examination. • The employee must be able to submit independent medical opinions if the results would lead to disqualification. • The results must be maintained on separate forms and accorded confidentiality as medical records.

41. Withdrawal of 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.

42. Other Acceptable Disability-Related Inquiries • Allows EAP counselor to ask medical questions provided he does not act on behalf of the employer, shields the information from decision makers, cannot impact employment decisions and discloses these provisions to the employee. • To comply with other laws and regulations. • As part of a voluntary wellness program, may obtain voluntary medical information so long as maintained confidentially and separate from personnel records.

43. 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.

44. Part III. • Pregnancy Disability Regulations

45. Overview of California’s New Pregnancy Disability Regulations • Effective December 30, 2012. • http://www.dfeh.ca.gov/res/docs/FEHC%20Pregnancy%20Regs/FINAL_APPROVED_PREG_REGS_CLEAN_11_30_12.pdf. • Purpose of regulations: • Conform prior statutory changes to PDL law. • Perceived disability is a protected basis. • Align pregnancy laws with new CA disability regulations and updated FMLA regulations. • Provide greater guidance to employers and employees on requirements/obligations. • What was not adopted.

46. Overview of New Pregnancy Disability 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.

47. Pregnancy Disability Leaves • Clarified definition of who is “disabled by 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’ssuccessful 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.

48. Pregnancy Disability Leaves • Based on opinion of health care provider. • List is illustrative, not exclusive. • Practice pointer : less-common conditions may trigger leave obligations. • Practice pointer : abnormal pregnancies may qualify as disabilities and disability accommodation leave provisions may apply.

49. Pregnancy Disability Leaves • Clarification of “4 Months”: • 4 months means time off for the number of days or hours the employee would normally work within four calendar months. • If a full-time employee (40 hours/week) takes his/her leave continuously, then total leave time is 17 1/3 weeks (1/3 of a year or 693 hours) • Entitlement is per pregnancy, not year. • FEH Council’s rulemaking role.

50. Pregnancy Disability Leaves • For part-time employees, intermittent or reduced schedule leaves • 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. • Examples: • 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” is832 hours of leave entitlement.