New California Disability Regulations to Become Effective December 30

by Morgan Lewis
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California employers should take action promptly to ensure compliance with new state disability and pregnancy disability regulations.

On December 26, California's Office of Administrative Law approved new disability regulations proposed by the state's Fair Employment and Housing Commission, which will take effect on December 30. Also, as noted in a previous LawFlash, a number of new laws relating to employment—enacted by California Governor Jerry Brown—will become effective on January 1, 2013.[1] California employers should take prompt action to ensure compliance with these new state laws, including the pregnancy disability regulations and disability regulations.[2]

Some of the important changes to the pregnancy regulations include the following:

Expanded Definition of Reasonable Accommodation

The regulations offer an expansive list of accommodations that employers should be prepared to offer, 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 lactation breaks.

The regulations make a distinction between medical conditions, which require an employee to go out on leave, and nonmedical conditions, which only require a reasonable accommodation. To illustrate, the regulations clarify that lactation is typically a nonmedical condition that requires only a reasonable accommodation, such as a private place to express milk during the work day, although there may be medical complications that impede lactation or breastfeeding, such as an infection, requiring leave. (Note that although it is beyond the scope of the issues discussed in this LawFlash, employers must comply with federal protection for lactation breaks and all California protection for breastfeeding, including the new breastfeeding law in California.)[3]

The new regulations require the employee and employer to engage in a good-faith interactive process to identify and implement the employee's request for reasonable accommodation.

Expanded Definition of Pregnancy-Related Conditions

The regulations offer a nonexhaustive, enumerated list of conditions that may be considered to be related to pregnancy, such as lactation, severe morning sickness, prenatal care, postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, postpartum depression, childbirth, loss of pregnancy, and end of pregnancy.

Expanded Definition of Healthcare Provider

The enumerated examples of appropriate healthcare providers who can make a recommendation for a leave or reasonable accommodation has expanded from physicians, surgeons, nurse practitioners, and nurse midwives to add licensed midwives, clinical psychologists, clinical social workers, chiropractors, physician assistants, marriage and family therapists, and acupuncturists.

All issues related to pregnancy can be grounds for a transfer, leave, or reasonable accommodation, should a healthcare provider so recommend.

Four-Month Leave Period and Calculation of Use of Intermittent Leave

The new regulations clarify the rule that employees are eligible for up to four months or 17⅓ weeks of pregnancy disability leave per pregnancy, not per year. The definition of four months is now delineated down to the hour, making it easier to accurately calculate intermittent or reduced schedule leave. Leave must be accounted for in the smallest increment offered for any other type of leave, but never deducted in increments larger than one hour. For example, if the smallest increment of leave the employer uses is one hour, then an employee who takes off 1½ hours for a prenatal appointment can be charged for two hours of leave. If the smallest increment the employer uses is one-half hour, then the leave entitlement can only be reduced by 1½ hours.

Reasonable accommodations or transfers do not reduce the four-month leave entitlement unless they reduce the number of hours that the employee works.

Clarification of Rights Related to "Pregnancy" vs. "Perceived Pregnancy"

The new regulations include changes to the definition of "because of pregnancy" to parse out "perceived pregnancy"—which now has its own definition. For example, employers cannot refuse to hire an applicant because of pregnancy or because of perceived pregnancy. The reasonable accommodation, transfer, and leave protections, however, do not cover "perceived pregnancy," but only pregnancy, childbirth, and related medical conditions. In other words, an employee is not entitled to a leave or reasonable accommodation because the employer perceived her to be pregnant when she was not.

Notice and Medical Certification

There are significant changes to the obligations regarding medical certification, including when certification may be obtained, what information must be provided, and when the certification should be returned by the employee.

The new 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 California Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA)—or a "Notice B" that combines notice of both an employee's rights regarding pregnancy and an employee's CFRA leave rights. The text of both notices[4] has been significantly changed, and employers must replace old notices as soon as possible.

The regulations explicitly allow for electronic or email notices.

There is a new requirement that employers give oral or written notice to nonproficient English speakers and written notice translated into any language spoken by 10% of the workforce at a particular workplace.

The regulations require all employers to update their handbooks or, if the employer has no handbook, to distribute notices to employees at least annually and also as soon as the employer learns that employee is pregnant or requests accommodation.

The regulations also provide model forms for employers to use.[5]

Reinstatement Rights

Although the new regulations retain the defense that the employer has the right to refuse reinstatement if it can show, by a preponderance of the evidence, that the employee would not otherwise have been employed in the same position for legitimate business reasons (such as a layoff or plant closure), the new regulations no longer allow a defense arguing that holding the job open would substantially undermine the employer's ability to operate its business safely and efficiently.

If an employee's position has been eliminated, employers have a new affirmative duty to provide notice of available, comparable positions to the employee by means reasonably calculated to inform the employee of comparable positions during the requirement period. A position is "available" if it will be open within 60 days of the employee's scheduled date of reinstatement.

Employers also 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 required notices inform employees of this right.

Other

The new regulations reflect amendments to California law requiring healthcare coverage. Employers now need to maintain benefits for employees out on all pregnancy-related leaves; first for pregnancy disability leave, which can extend to four months, as long as the employee remains disabled. Then, if the employee requests and is eligible, benefits must continue for up to 12 more weeks under the CFRA. This can total more than 29 weeks of benefits. Employers should consult with their plan administrators or insurance brokers to review coverage issues.

Employers of between four and 15 employees no longer have exemption from offering health coverage or allowing pregnant employees to participate in certain training programs.

Implications

The new pregnancy disability regulations create a number of significant changes to the law and new affirmative duties for employers. Employers should evaluate both their current handbook policies and internal procedures in order to comply with these new duties. Employers should also update their notice and certification forms.

Morgan Lewis will host a webinar on February 12, 2013, at 9:30 a.m. PT to discuss in detail California's new pregnancy and disability regulations. Additional information on this webinar will be provided in January. Early registration for the webinar is available here


[1]. For more information on these new laws, see our October 3, 2012, LawFlash, "Another New Wave of Employment Laws in California," available here.

[2]. View the pregnancy disability regulations here. View the disability regulations here.

[3]. For a discussion of the new breastfeeding law, see our October 3 LawFlash.

[4]. View Notice A here. View Notice B here.

[5]. View the regulations, including the model forms for medical certification, here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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