ANALYZING CALIFORNIA’S RELIGIOUS, DISABILITY, AND … · 2019-02-25 · 2019 NAVIGATING CALIFORNIA EMPLOYMENT LAW OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10-2 Be Reasonable!

2019 NAVIGATING CALIFORNIA EMPLOYMENT LAW

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10-1

BE REASONABLE!

ANALYZING CALIFORNIA’S RELIGIOUS,

DISABILITY, AND PREGNANCY

ACCOMMODATION REQUIREMENTS

Shannon Alexander – NBCUniversal

Tracie L. Childs – Ogletree Deakins (San Diego)

Anthony J. DeCristoforo – Ogletree Deakins (Sacramento)

David Raizman – Ogletree Deakins (Los Angeles)



Be Reasonable! Analyzing California’s Religious, Disability, and Pregnancy Accommodation Requirements

by Anthony J. DeCristoforo, Tracie L. Childs, and David Raizman

OVERVIEW OF THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT In California, the California Fair Employment and Housing Act (FEHA) prohibits employment discrimination on the basis of “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status” Gov. Code, § 12940(a). As a matter of public policy the FEHA declares “that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination.” Gov. Code, § 12920. Amongst FEHA’s requirements for employers, FEHA requires employers to make reasonable accommodations for the disabilities and religious beliefs of employees and applicants unless doing so would cause the employer undue hardship. Gov. Code, § 12940 subds. (l), (m). Persons Covered under the California Fair Employment and Housing Act

FEHA covers most employers in California. Government Code section 12926 provides that for the purposes of FEHA, an employer includes:

Any “person regularly employing five (5) or more persons;”

Any “person acting as an agent of an employer, directly or indirectly”; and

“[T]he state or any political or civil subdivision of the state, and cities.”

Although FEHA protects most California employees, some workers are not covered:

Persons employed by tax exempt religious associations or corporations not organized for profit (Gov. Code § 12926(d));

Individuals employed by a parent, child, or spouse (Gov. Code, § 12926; Cal. Code Regs., tit. 2, § 11008, subd. (c)(2));

Individuals employed “under a special license in a nonprofit sheltered workshop or rehabilitation facility” (Cal. Code Regs., tit. 2, § 11008, subd. (c)(3);

Independent contractors; and

Volunteers (Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, 155). ACCOMODATIONS FOR PHYSICAL AND MENTAL DISABILITIES Breadth of Disability Accommodations under FEHA

FEHA expressly states that its protections are broader than those found in the Americans with Disabilities Act (ADA): “The law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act. Although the federal act provides a floor of protection, this state's law has always, even prior to passage of the federal act, afforded additional protections.” Gov. Code, § 12926.1.



In particular, California courts have held that the California standard for reasonable accommodation is broader than under federal law: “[T]he duty of an employer to provide reasonable accommodation for an employee with a disability is broader under the FEHA than under the ADA.” Bagatti v. Dept. of Rehabilitation (2002) 97 Cal.App.4th 344, 362.

In Bagatti, the court noted that the FEHA duty to accommodate differs from the ADA in technical ways. Subdivision (m) of section 12940, defining the duty to make reasonable accommodation, does not require that an employee be “a qualified individual with a disability” as does the federal statute. Rather, subdivision (m) of section 12940 applies simply to “an applicant or employee.” Moreover, subdivision (m) of section 12940 does not l ink the failure to make reasonable accommodation to discrimination in the terms and conditions of employment, as does the ADA provision. Given this disparity, the court in Bagatti declined to apply EEOC reasonable accommodation guidelines. While the court described that the California duty to accommodate is not, it declined to elaborate on what it is. The court noted, in fact, that this void creates much uncertainty for employers regarding their legal duty: “We recognize that this result will leave employers uncertain with respect to when they must provide reasonable accommodation to disabled employees.” However, the court offered no help; it merely suggested that the DFEH could promulgate clarifying regulations. Bagatti v. Dept. of Rehabilitation, supra, 97 Cal.App. at 360-363. Disability or Medical Condition under FEHA FEHA protects individuals who have a “physical disability, mental disability, or medical condition” from discrimination. Gov. Code, § 12920. Physical Disability

To qualify for disability under FEHA on the basis of physical disability, the physical disability must limit one of the statutorily enumerated body systems (see list below) and be such that it “limits a major life activity.” Gov. Code, § 12926, subd. (m)(1). The physical disability must affect one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. Gov. Code, § 12926(m)(1)(A).

A disability limits “a major life activity” if the disability makes the activity more difficult. Cal. Code Regs., tit. 2, § 11065, subd. (l)(3). Unlike the Americans with Disabilities Act’s definition of “disability” which requires an impairment to substantially limit a major life activity, FEHA only requires the condition to limit participation in a major life activity. See 42 U.S.C. 12102(1)(A); Gov. Code, § 12926.1, subd.(c).

Additionally, in contrast to the ADA which requires claims to be evaluated on a case-by-

case, FEHA specifies that the following conditions are physical disabilities:

Chronic or episodic conditions such as HIV/AIDS;

Hepatitis;

Epilepsy;

Seizure disorder;

Diabetes;

Multiple sclerosis; and



Heart disease. Gov. Code § 12926.1; Cal. Code Regs., tit. 2, § 11065, subd. (d)(8). Mental Disability

“Mental disability” means any medical or psychological disorder or condition that limits a

major life activity. Cal. Code Regs., tit. 2, § 11065, subd. (d)(1). For the purposes of FEHA, the term “mental disabilities” include, but are not limited to:

Clinical depression;

Bipolar disorder;

Emotional or mental illness;

Intellectual or cognitive disability;

Organic brain syndrome;

Specific learning disabilities;

Autism spectrum disorders;

Schizophrenia; and

Chronic or episodic conditions (e.g., post-traumatic stress disorder and obsessive compulsive disorder)

Gov. Code, § 12926.1, subd. (c); Cal. Code Regs., tit. 2, § 11065, subd. (d)(1). It is worth noting that an employee’s stress and anxiety related to his or her supervisor’s standard oversight does not constitute a mental disability. Higgins-Williams v. Sutter Medical Found (2015) 237 Cal.App.4th 78, 84.

Medical Conditions A “medical condition” for the purposes of FEHA means cancer, including health

impairments associated with a diagnosis of cancer, or genetic characteristics. Gov., Code § 12926, subd. (i).

“Genetic characteristics” are defined as either a) any scientifically or medically

identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or that person’s offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder; or b) inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or that person’s offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder. Gov. Code, § 12926, subd. (i)(2).

Specific Exclusions from FEHA FEHA specifically excludes the following conditions:

Sexual behavior disorders;

Compulsive gambling;



Kleptomania;

Pyromania; or

Psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.

Gov. Code, § 12926, subd. (j), (m)(6); Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(A)

In addition, FEHA excludes “conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis.” Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B). Examples of such conditions include: the common cold, seasonal influenza, minor cuts, sprains, muscle aches, soreness, bruises, non-migraine headaches, and minor and non-chronic gastrointestinal disorders. Id. Employer’s Duty to Engage in Interactive Process

FEHA requires covered employers to “engage in a timely, good faith, interactive process” with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. Gov. Code § 12940(n). An employee may file a civil action against his or her employer if the employer fails to engage in the interactive process with the employee. Id.; Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, as modified on denial of reh'g, (Dec. 13, 2005). An employee may even be able to prevail on a claim for failure to engage in the interactive process without proving that his or her disability could have been accommodated.

Typically, the employee must initiate the interactive by requesting an accommodation.

However, FEHA requires employers to initiate the interactive when the employer becomes aware of the need for an accommodation through a third party or by observation, or employer becomes aware of the possible need for accommodation because the disabled employee has exhausted his or her leave under applicable law and the employer’s leave policy and the employee or the employee’s health care provider indicates that further accommodation is necessary for recuperative leave or to allow the employee to perform essential functions of the job. Cal. Code Regs., tit. 2 § 11069; See Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887.

Once the interactive process is initiated, the employer's obligation to engage in the process in good faith is continuous; the employer's obligation extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. Scotch v. Art. Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986. Both the employer and the employee have the obligation to keep communications open and neither has a right to obstruct the process. Id. Types of Reasonable Accommodations

“Reasonable accommodation” of a plaintiff's disability, under FEHA, means a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired. Scotch v. Art. Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986.



An employer must consider any and all reasonable accommodations of which it is aware or that are brought to its attention. Although the employee should consider the employee’s preference, it retains the right to “implement an accommodation that is effective in allowing the applicant or employee to perform the essential functions of the job.” Cal. Code Regs., tit. 2, § 11069, subd. (c)(8).; Cal. Code Regs., tit. 2, §, 11068 subd.(e).

The employer has the discretion to choose between effective accommodations, and may

choose the accommodation that is less expensive or easier to provide. Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th, 215, 228. An employee cannot require his or employer to provide a specific accommodation if the employer chose to provide another reasonable accommodation. Wilson v. County of Orange (2009) 169 Cal.App.4th 1185.

FEHA does not prohibit refusing to hire or discharging an employee with a disability if the

employee is “unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” Gov. Code, § 12940, subd. (a); See Green v. State of California (2007) 42 Cal.4th 254, 262.

Examples of Reasonable Accommodations

FEHA and FEHA regulations provide a nonexhaustive list of reasonable accommodations which include:

Making facilities accessible to and usable by persons with disabilities;

Job restructuring (includes reallocating or redistributing non-essential job functions in a job with multiple responsibilities);

Offering part-time or modified work schedules;

Reassigning the employee to a vacant position;

Acquiring or modifying equipment or devices;

Adjusting or modifying examinations, training materials or policies;

Providing qualified readers or interpreters;

Allowing employees to bring assistive animals to the work site;

Modifying supervisory methods;

Permitting an employee to work from home; and

Providing paid or unpaid leave.

Gov. Code, § 12926(p); Cal. Code Regs., tit. 2, § 11065, subd. (p). An employer is not required to eliminate an essential job function to accommodate an employee. Cal. Code Regs., tit. 2, § 11068, subd. (b). “Where a quality or quantity standard is an essential job function, an employer or other covered entity is not required to lower such a standard as an accommodation, but may need to accommodate an employee with a disability to enable him or her to meet its standards for quality and quantity.” Id. Assistive Animals Allowing employees to bring assistive animals to workplace may constitute a reasonable accommodation. Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(B). Examples of “assistive animals” include guide, signal, service, and support dogs or support animals. Cal. Code Regs., tit. 2, § 11065, subd. (a). A “support animal” is an animal that provides emotional, cognitive, or other similar support to a person with a disability. Cal. Code Regs., tit. 2, § 11065, subd. (a)(3).



Prior to the employee bringing an assistive animal into the workplace, the employer may require the employee to provide a letter from the employee’s health provider stating that the employee has a disability and explaining why the employee requires the presence of the assistive animal. Cal. Code Regs., tit. 2, § 11069, subd.(e). Additionally, the employer may require that the employee provide confirmation that the assistive animal is: 1) free from offensive odors and displays habits appropriate to the work environment; and 2) does not engage in behavior that endangers the health or safety of the individual with the disability. Cal. Code Regs., tit. 2, 11065, subd. (a)(2); Cal. Code Regs., tit. 2, § 11069, subd. (e). Leaves of Absence

Paid or unpaid leave may be a reasonable accommodation under FEHA. When an employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence or extending a leave provided by the California Family Rights Act (CFRA), the Family Medical Leave Act (FMLA), other leave laws, or an employer's leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer. When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence. An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation. Cal. Code Regs., tit. 2, § 11068, subd. (c); See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227.

An employer may not impose a “100 percent healed” or “fully healed” policy before the

employee can return to work after an illness or injury. Cal. Code Regs., tit. 2, § 11068, subd. (i). Employers employing 25 or more employees must also reasonably accommodate

employees who wish to participate in an alcohol or drug rehabilitation program. Lab. Code, § 1025.

Reassignment to a Vacant Position During the interactive process, if certain conditions are met, the employer must ascertain

whether any suitable alternate, vacant positions for which the employee is qualified, and offer those positions to the employee. Cal. Code Regs., tit. 2, § 11068, subd. (d). The conditions are:

if the employee can no longer perform the essential functions of his or her

own position even with accommodation; or if accommodation of the essential functions of an employee's own position

creates an undue hardship; or if both the employer and the employee agree that a reassignment is preferable

to being provided an accommodation in the present position; or if an employee requests reassignment to gain access to medical treatment for

his or her disabling condition(s) not easily accessible at the current location.



If possible, the reassignment should be to a position with comparable pay and responsibility. If no vacant comparable positions for which the employee is qualified are available, the company may reassign the employee to a lower graded or lower paid position. Cal. Code Regs., tit. 2, § 11068, subd.(d)(2).

Reassignment to a temporary position is not required under the regulations. However, an employer may offer, and an employee may accept or reject a temporary assignment during the interactive process. Cal. Code Regs., tit. 2, § 11068, subd. (d)(3).

Additionally, an employer is not required to create a new position to accommodate a disabled employee. Cal. Code Regs., tit. 2, § 11068, subd. (d)(4).

An employee with a disability is entitled to preferential consideration of reassignment to

a vacant position over other applicants and existing employees. However, an employer is not required to accommodate an employee by ignoring its bona fide seniority system, absent a showing that the employer makes other special exceptions to such a system. Cal. Code Regs., tit. 2, § 11068, subd. (d)(5). Undue Hardship

California FEHA regulations state that an employer need not provide an accommodation where it would impose an undue hardship:

Affirmative Duty. An employer or other covered entity has an affirmative duty to make reasonable accommodation(s) for the disability of any individual applicant or employee if the employer or other covered entity knows of the disability, unless the employer or other covered entity can demonstrate, after engaging in the interactive process, that the accommodation would impose an undue hardship.

Cal. Code Regs., tit. 2, § 11068, subd. (a)(emphasis added).

It is notable that an undue hardship cannot be demonstrated unless and until the employer has engaged in the interactive process.

“Undue hardship” is defined as an action requiring “significant difficulty or expense” when considered in light of the following factors:

Nature and cost of the accommodation needed, taking into consideration the availability of tax credits and deductions and/or outside funding;

Overall financial resources of the facilities involved in providing the reasonable accommodations, the number of persons employed at the facility and the effect of the accommodation on expenses and resources or on the operations of the facility, including the impact on other employees' ability to perform their duties and the facility's ability to conduct business;

Overall resources of the covered entity, the overall size of the business with respect to the number of employees, and the number, type and location of the covered entity's facilities;



Type of operations of the employer entity, including the composition, structure and functions of its workforce; and

Geographic separateness, administrative or fiscal relationship of the facility or facilities involved.

Gov. Code, § 12926(u); Cal. Code Regs., tit. 2, § 11065, subd. (r).

California courts have not extensively developed the concept of undue hardship. Under the ADA standard, an employer cannot simply assert that a needed accommodation will cause it undue hardship, but must “present evidence and demonstrate that the accommodation will, in fact, cause it undue hardship.” 29 CFR § 1630.15(d). Moreover, the “undue hardship” defense may be rejected where the defendant fails to present evidence on the economic impact of the requested accommodation, which necessarily requires consideration of both the cost of providing the requested accommodation and the employer's financial resources. See Borkowski v. Valley Central School Dist. (2nd Cir. 1995) 63 F3d 131, 142-143—evidence regarding school district budgets, cost of providing requested accommodation required; see also Rascon v. US West Communications, Inc. (10th Cir. 1998) 143 F3d 1324, 1335—employer's failure to present evidence of its financial resources precluded undue hardship defense.

ACCOMODATIONS FOR DISABILITIES RELATED TO PREGNANCY

Under FEHA, it is unlawful to refuse to provide reasonable accommodation to an employee for conditions related to pregnancy childbirth, or related medical conditions if the employee requests the accommodation on the advice of her health care provider. Gov. Code, § 12945, subd. (a)(3)(A).

If an employer has a policy under which temporarily disabled employees may be

transferred to less strenuous positions, it is unlawful to refuse a request from a pregnant employee for such a transfer. Gov. Code, § 12945, subd. (b)(2).

On a related note, as of January 1, 2019, the obligation of employers to provide lactation

accommodation was expanded. Under the previous law, employers were required to accommodate nursing employees with the use of a room or other location, other than a bathroom stall, to express milk in private. Under the revised law, employers are required to make reasonable efforts to provide a private area to pump, in close proximity to the employee’s work area that is not a bathroom (i.e. the entire bathroom area, not just the stall). Labor Code, § 1031, subd. (a). An employer who makes a temporary lactation location available is deemed to be in compliance with the law if:

The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations;

The temporary lactation location is private and free from intrusion while an employee expresses milk;

The temporary lactation location is used only for lactation purposes while an employee expresses milk; and

The temporary lactation location otherwise meets the requirements of state law concerning lactation accommodation.



Gov. Code, § 1031. Additionally, if the employer can demonstrate that providing a location other than a bathroom would impose an undue hardship “when considered in relation to the size, nature, or structure of the employer’s business,” the employer is then required to make reasonable efforts to provide the use of a location, other than a toilet stall, close to the employee’s work area where the employee can express milk in private. Gov. Code, § 1031.

RELIGIOUS ACCOMMODATIONS

Under both Title VII of the 1964 Civil Rights Act (Title VII) and FEHA, employers are required to make reasonable accommodations for their employees’ religious beliefs that are associated with traditional religions, as well as religious “observances and practices.” 42 USC § § 2000e-2(a)(1), 2000e(j); Gov. Code, § 12940, subd. (l)(1), (m)(2).

To be protected, a belief, observance or practice is protected if it “occupies in the life of

its possessor a parallel to that filled by the God of those [religions] admittedly qualifying for the exemption …” United States v. Seeger 380 U.S. 163, 176 (1965). Not having a religion is also protected. Young v. Southwestern Sav. & Loan Ass’n (1975) 509 F2d 140, 143.

To determine whether a set of beliefs is of parallel importance to that of traditionally

recognized religions, FEHA applies a three-part test:

A religion address fundamental and ultimate questions having to do with deep and imponderable matters (such as the meaning and purpose of life, theories of humankind’s nature or place in the universe, etc.);

A religion is comprehensive in nature, consisting of a belief system as opposed to an isolated teaching; and

A religion can recognized by the presence of certain formal and external signs. Friedman v. Southern Cal. Permanente Medical Group (2002) 102 Cal.App.4th 39, 69-70. Religious Practices Protected Under FEHA

“Religious Dress Practice”: FEHA protects “religious dress practice” which is broadly construed and includes wearing or carrying religious clothing, head or face coverings, jewelry, artifacts, and “any other item that is part of the observance by an individual of his or her religious creed.” Gov. Code, § 12926, subd. (q).

“Religious Grooming Practice”: FEHA protects “religious grooming practice” is broadly construed and means all forms of head, facial and body hair comprising part of an individual’s observance of his or her religious creed. Gov. Code, § 12926, subd. (q).

Observance of Holy Days: FEHA protects an employee’s observance of a Sabbath or other religious holy days and reasonable travel time for the observance. Gov. Code, § 12940, subd. (l).



Accommodating Religious Practices Employers have an obligation to explore “any available reasonable alternative means of

accommodating” an employee’s religious belief or observance that conflicts with an employment requirement. Gov. Code, § 12940, subd. (l)(1). Examples of reasonable accommodations for religious practices include:

Job restructuring

Job reassignment

Modification of work practices; or

Allowing time off in an amount equal to the amount of non-regularly scheduled time the employee has worked in order to avoid a conflict with his or her religious observances.

Cal. Code Regs., tit. 2, § 11062, subd. (a). Limitations on an Employer’s Obligation to Accommodate

The obligation of California employers to accommodate religious practices under FEHA is not without limitation:

Employers are not required to provide an accommodation if such accommodation would result in an undue hardship for the employer. Gov. Code, § 12940, subd. (l);

An accommodation of an individual’s dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public. Gov. Code, § 12940, subd. (l),(2); and

An accommodation is not required if it would result in the violation of any law prohibiting discrimination or protecting civil rights. Gov. Code, § 12940, subd. (l).

Undue Hardship For the purposes of FEHA, an “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors:

The nature and cost of accommodation required;

The facility’s overall financial resources, the number of persons employed there, and the impact on operation of the facility;

The employer’s overall financial resources and size of the business;

The type of operations; and

Geographic separateness, administrative or fiscal relationship of the facility involved. Gov. Code, § 12926, subd. (u).

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Shannon Alexander – NBCUniversal • Tracie L. Childs (San Diego)Anthony J. DeCristoforo (Sacramento) • David Raizman (Los Angeles)

Be Reasonable! Analyzing California’s Religious, Disability, and PregnancyAccommodation Requirements

NAVIGATING CALIFORNIA EMPLOYMENT LAW • FEBRUARY 27 - MARCH 2, 2019 • SILVERADO RESORT AND SPA


Disability Law California-Style

• Gov’t Code § 12926.1(a): “California is different”

“The law of this state in the area of disabilities provides protections independent from those in the [ADA]. Although the federal act provides a floor of protection, this state’s law has always, even prior to passage of the federal act, afforded additional protections.”

• Some CA differences: Broader definition of “disability”; interactive process (IP) emphasized; limitations on information sought in IP; must generally accept doctor’s note; accommodation duty for those who associate with disabled; explicit regulation permitting service and emotional support animals; reasonable accommodation (RA) for “residual effects of disability”; preferential assignment to vacant position required; leave as RA required; and still more!!!

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Interactive Process Emphasized

• Independently actionable (Gov. Code § 12940(n));

detailed regulations (2 CCR § 11069)

• CA disability discrimination regulations require

employers to focus on engaging in “interactive

process” and providing a “reasonable

accommodation” – not on whether the employee

actually has a disability


Interactive Process Differences

• Employers may NOT ask about the underlying medical condition

• Employer duty to initiate when aware of need for interactive process:

– Employee asks

– Through own observation

– Through third party

– At end of FMLA/CFRA, doctor says need more leave

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More From Regulations

• Easier standard of proof for qualifying “disability” – Cannot consider mitigating measures or RAs. 2 CCR § 11065(l)(3)(C).

– Adds lists of covered disabilities. 2 CCR § 11065(d)(1), (d)(2)(C).

– Expands meaning of “major life activity” (e.g., includes working). 2 CCR §

11065(l)(1)(C).

• Expands definition of “health care provider” who can document

“disability.” 2 CCR § 11065(i).

• Expands “reasonable accommodation.” 2 CCR §§ 11068,

11065(p)(2)(listing examples of RAs).

• Explicit and broad coverage for “assistive animals.” 2 CCR §§

11065(a), 11069(e).


Broader Reasonable Accommodation Duty

• Expand concept of reasonable accommodation:– Affirmative duty to make and offer RAs. 2 CCR § 11068(a).

– Reasonable accommodation for “residual effects of a disability” (e.g., follow-up doctors appointments). 2 CCR § 11068(g).

– Reasonable accommodation in the form of “paid or unpaid leaves of absence” if it would be effective in allowing the employee to return to work (but not for “indefinite” leaves). 2 CCR § 11068(c).

– Work from home must be considered. 2 CCR § 11065(p)(2)(L).

– Duty to consider reassignment to vacant position if other accommodations not feasible. 2 CCR § 11068(d).

– Preference to employee with “disability” in filling vacant position. 2 CCR § 11068(d)(5). Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245 (2000).

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Associational Discrimination

• Castro-Ramirez v. Dependable Highway Express,

246 Cal. App. 4th 180 (2016)– Triable issue of fact as to whether non-disabled

employee was terminated because of his need for

scheduling accommodations for his child’s dialysis

treatment.

– Effectively requires RA for non-disabled employees to

care for a disabled family member?


Addressing CA Disability Risks

• Assume “disability” and…

• Focus on interactive process

• Focus on hardship

– Tread carefully where hardship based on slippery slope

• Use and monitor “provisional” RAs

• Assistive animals: Document expectations; consider less-than-complete access; provisional(!); document impact

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Pregnant in California?

• It is illegal in California for an employer with 5 or more employees to fire, refuse to hire, bar, harass, discharge or otherwise discriminate against someone because of pregnancy, childbirth, or related condition. (Cal. Gov. Code section 12945; Cal. Code Regs, title 2, section 11035)

• Covered employer can be one or more individuals, partnerships, corporations, companies, labor organizations, apprentice training programs, employment agencies, or licensing boards. (Cal. Gov. Code section 12925; CCR, title 2, section 11035(e))

• Rights and protections afforded employees under the FEHA include the right to reasonable accommodations.


Pregnancy Disability

• A physical or mental condition related to pregnancy or childbirth that prevents one from performing essential job duties;

• If job would cause undue risk to mom or successful completion of pregnancy;

• Determined by healthcare provider.

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Examples of Pregnancy Disabilities

• Severe morning sickness

• Pre/post natal care

• Need for bedrest

• Gestational diabetes

• Preeclampsia

• Post-partum depression

• Lactation conditions

• Loss or end of pregnancy

• Recovery from loss of pregnancy


Reasonable Accommodation and Interactive Process

• Reasonable accommodations include:– Temporary transfer to less strenuous or hazardous job;

– Modifying duties and schedule;

– Use of stool or chair while performing duties;

– Longer or more frequent breaks;

– Providing time and private accommodations to express milk;

– Pregnancy Disability Leave (PDL);

– Granting additional time off after PDL exhaustion.

• Employers MUST engage in the interactive process

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Lactation Accommodation

• Expanded as of January 1, 2019

• Must make reasonable efforts to provide private area to pump, close proximity to work area that is not a bathroom

• Private = free from intrusion

• Not a toilet stall


Pregnancy Disability Leave (PDL)

• Leave from work to accommodate employees with a pregnancy disability

• Up to four months as recommended by physician

• Must continue to pay employer premiums for health insurance paid before leave

• In addition to other leaves under FEHA, CFRA, and employer specific leaves

• Employer specific policies

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Reinstatement

• Must reinstate to same position unless employee would not have been in position due to some reason unrelated to leave (such as plant closure/layoff)

• Eliminates prior defense of must reinstate unless keeping the position open “would substantially undermine the employer’s ability to operate the business safely and efficiently”


Family Leave: Sanchez v. Swissport

• Employer terminated employee after she exhausted all of her leave under the Pregnancy Disability Leave Law and California Family Rights Act, although it was still several months before her due date.

• The employer contended it had met its obligations under FEHA by allowing her all leave mandated by PDLL and CFRA. However, the court held that after exhaustion of these leaves, the employer is still required to consider reasonable accommodations under FEHA, which could include further leave as long as it did not impose an undue hardship. This obligation is independent of PDLL and CFRA.

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The Risk

• 2014 CA case – $185M verdict

• What is the cost for not complying?

• No cap on damages in California (Fed cap $300,000)

• Potential damages

• Penalties?


Strategies for Complying

• Create/update your policies

• Ensure policies are in compliance with California law

• Notify workforce of your policies

• Train management

• Follow up with employees returning from leave, unable to timely return from leave, and/or needing accommodations while pregnant

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Reasonable Accommodation – Religion

Failure to Provide Reasonable Accommodation is Religious Discrimination under FEHA

• Employers must accommodate religious belief or observance, including dress and grooming practices.

• Undue hardship standard is same for religious accommodation and disability accommodation.


• “RELIGIOUS DRESS PRACTICE” includes wearing or carrying religious clothing, head or face coverings, jewelry, artifacts, and any other item…

• “RELIGIOUS GROOMING PRACTICE” includes all forms of head, facial, and body hair…

…that is part of the observance by individual of religious creed.


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• What is a protected religious belief?

– FEHA: All traditionally recognized religions and beliefs, observations, or practices sincerely held, that occupy in the employee’s life a place of importance parallel to that of traditionally recognized religions.

– Title VII: Moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.


Interactive Process

• Once the employer gets notice, it has an affirmative duty to initiate good faith interaction. Employer’s interaction must be:

– Timely

– Conducted in good faith

– Be interactive

• The purpose is to determine whether an effective accommodation can be found.


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Types of Reasonable Accommodations

• California Code of Regulations examples:

– Job restructuring

– Job reassignment

– Modification of work practices

– Allowing time off equal to replaced non-regularly scheduled time worked


Types of Reasonable Accommodations

• Other examples:

– Attending worship services

– Praying

– Wearing religious garb or symbols

– Displaying religious objects

– Adhering to certain dietary rules

– Forms of religious expression

Proselytizing?

– Refraining from certain activities

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Limits of Reasonable Accommodation Undue Hardship on Operations

• Undue hardship is more difficult to establish under California law

– Federal law requires merely that the accommodation impose more than a de minimis cost to be deemed an undue hardship.

– Under California law, employer cannot deny request unless it is substantially burdensome – as in disability accommodation cases.


• Safety or sanitation risks

• Shifting work to other employees

• Violating the rights of other employees

• Company image?

Limits of Reasonable Accommodation Undue Hardship on Operations

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Addressing Religious Accommodation Risks

• Policy and Supervisor Training

– Prohibit workplace discrimination based upon religion

– Inform employees that reasonable efforts will be made to accommodate religious practices

– State your dress code and grooming policies, including any safety-imposed limitations

– Think twice about saying “no”

Shannon Alexander – NBCUniversal • Tracie L. Childs (San Diego)Anthony J. DeCristoforo (Sacramento) • David Raizman (Los Angeles)

Be Reasonable! Analyzing California’s Religious, Disability, and PregnancyAccommodation Requirements


Documents

ANALYZING CALIFORNIA’S RELIGIOUS, DISABILITY, AND … · 2019-02-25 · 2019 NAVIGATING CALIFORNIA EMPLOYMENT LAW OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10-2 Be Reasonable!