Labor & Employment Practice
January 2013
BEIJING
New California Disability Regulations
CHARLOTTE
California’s Office of Administrative Law recently approved the state’s Fair Employment and Housing Commission’s proposed pregnancy disability regulations. California employers with five or more employees must make reasonable accommodation, transfer, or pregnancy disability leave available to all employees affected or disabled by pregnancy. The regulations, effective as of December 30, 2012, create a number of significant changes in the law, clarifying and expanding protections afforded to employees and placing several new affirmative duties on employers. Important changes to the pregnancy disability regulations are listed below.
CHICAGO GENEVA HONG KONG HOUSTON
Perceived Pregnancy
LONDON
The regulations added “perceived pregnancy” as a new basis of unlawful discrimination. It is now unlawful for an employer to engage in acts of discrimination based upon the perception that an applicant or employee is pregnant. The regulations define “perceived pregnancy” as “being regarded or treated by an employer or other covered entity as being pregnant or having a related medical condition.”
LOS ANGELES MOSCOW NEW YORK NEWARK PARIS SAN FRANCISCO SHANGHAI WASHINGTON, D.C.
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Reasonable Accommodation The employee and employer must engage in a good-faith interactive process to identify and implement the employee’s request for reasonable accommodation. The regulations provide an expansive list of accommodations that may be reasonable, such as modification of duties, work practices, schedules, and policies; allowing more frequent breaks (e.g., to use the restroom); providing furniture (e.g., stools or chairs) or modifying equipment or devices; and providing a reasonable time and place for lactation breaks.
Four Month Leave Period and the Calculation of Use of Intermittent Leave The new regulations clarify that employees are eligible for up to four months or 17 1/3 weeks of pregnancy disability leave per pregnancy. The regulations clarify that employees are entitled to time off for the number of days or hours the employee would normally work within four calendar months (17 1/3 weeks).
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Employers may now account for increments of intermittent leave using the smallest increment offered for any other type of leave, but never greater than one hour.
disability leave cannot be used to meet the employer’s obligation to pay for 12 weeks of health coverage under the CFRA, regardless of how the employer designates the leave.
Reductions in the hours an employee works as a result of a reasonable accommodation or transfer reduce the four-month leave entitlement.
Medical Certification
Reinstatement Rights of Employees Returning From Pregnancy Disability Leave or Transfer Employers now have an affirmative duty to provide a written guarantee that an employee can return to work in her same position, if the employee requests a written guarantee. The regulations require employers to issue a notice to employees regarding their rights, including the right to receive such a written guarantee. The regulations eliminate the employer’s ability to deny reinstatement where the employer can show that preserving the job for the employee would undermine the employer’s ability to operate its business safely and efficiently. The regulations allow an employer to refuse reinstatement, even if it has provided a written guarantee of reinstatement, if it can show that the employee would not otherwise have been employed in the same position for legitimate business reasons (such as a layoff or plant closure). If an employee’s position has been eliminated, employers are excused from reinstating the employee to a comparable position if one is not available. The regulations provide that a position is considered “available” if it is open on the employee’s scheduled date of reinstatement or within 60 calendar days of the scheduled reinstatement date and the employee is qualified for the position. During this 60-day calendar period, employers have an affirmative duty to provide the employee notice of available, comparable positions in person, by letter, telephone or email, or by links to postings on the employer’s website if there is a section devoted to job openings.
Maintenance of Benefits Employers must now maintain the employee’s health benefits for the duration of the pregnancy disability leave. The time that an employer maintains and pays for coverage during pregnancy
Employers may condition the granting of a reasonable accommodation, transfer, or leave on written medical certification. The regulations provide a number of changes regarding the notice an employer must give, when medical certifications can be obtained, what information satisfies a certification, and when employees must return a certification.
Notice The new regulations also provided changes in the notice employers are required to provide to employees. The regulations provide model notice forms for employers to use. The regulations require employers to provide employees with either a “Notice A”—for employers with fewer than 50 employees that are therefore not subject to the CFRA or the federal (FMLA)—or a “Notice B” that combines notice of both an employee’s rights regarding pregnancy and an employee’s CFRA leave rights.
Employers must keep the notice posted, electronically or otherwise. The regulations provide that employers must either include a description of reasonable accommodation, transfer and pregnancy disability leave in its handbook or, in the alternative, deliver copies of the notice at least annually. The regulations also place an affirmative duty on employers with workforces comprising of ten percent or more non-English speakers to translate the notice into the languages spoken. Further, the employer must also make reasonable effort to provide oral or written notice in the appropriate language to non-English speaking employees the employer knows are pregnant and for whom notice had not been given in her primary language.
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If you have questions or would like additional information about the topics in this briefing, please contact any of the Winston & Strawn LLP Labor & Employment Relations Practice Group attorneys listed below or your usual Winston & Strawn contact.
Charlotte Wood W. Lay Eric Zion Chicago Derek G. Barella Susan M. Benton Shane W. Blackstone John M. Dickman C. R. Gangemi, Jr. William G. Miossi Michael L. Mulhern Michael P. Roche Rex L. Sessions Cardelle B. Spangler Joseph J. Torres Hong Kong Simon C.M. Luk Houston Jennifer Rappoport
New York Deborah S.K. Jagoda Stephen L. Sheinfeld William Sunkel Paris Sébastien Ducamp Barbara Hart San Francisco Charles S. Birenbaum Jeffrey S. Bosley Joan B. Tucker Fife Julie L. Hall Shanghai Laura Hua Luo Brinton M. Scott Washington, D.C. William G. Miossi
Los Angeles Paul J. Coady Anna Segobia Masters Laura R. Petroff Jennifer Rappoport Amanda Sommerfeld
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