DISABILITY DISCRIMINATION AND MEDICAL LEAVE

DISABILITY DISCRIMINATION AND MEDICAL LEAVE

Plaintiff filed suit against her employer and its president and CEO for disability discrimination, retaliation, and harassment under FEHA, as well as common law intentional infliction of emotional distress. The District Court granted summary judgment for the defendants, and the Ninth Circuit affirmed, holding that Plaintiff failed to establish a prima facie case of disability discrimination because she was not “competently performing her position,” i.e., she could not perform the essential duties of her position, with or without reasonable accommodation. Rather, Plaintiff had admitted that her disability made it impossible for her to fulfill the duties of her position and that she has been unemployed since October 2009, had not applied for any positions, had made no effort to secure employment, and had exhausted her disability benefits. Plaintiff’s inability to perform the essential functions of her position constituted a legitimate reason for her termination, and Plaintiff failed to provide “specific and substantial” evidence that this reason was pretextual. Accordingly, the Ninth Circuit found that Plaintiff’s retaliation cause of action failed. Additionally, the Ninth Circuit held that a single incident of “gruff,” “abrupt,” and “intimidating” behavior by the employer’s CEO was not “sufficiently severe to constitute a hostile working environment,” and, therefore, Plaintiff’s harassment cause of action failed. Finally, the Ninth Circuit held that the CEO’s “gruff,” “abrupt,” and “intimidating” conduct could not be characterized as exceeding all bounds of that tolerated in a civilized community, nor was Plaintiff’s alleged emotional distress “severe,” and, therefore, Plaintiff’s cause of action for intentional infliction of emotional distress failed. Lawler v. Montblanc North America, LLC (9th Cir. 2013) 704 F.3d 1235.

Employee Who Lost Prior Discrimination Lawsuit and Termination Appeal Could Not Re-Litigate

Plaintiff, a City police officer, filed three lawsuits against the City over a period of three years. The first (“Suit I”) alleged the City fired her because she had associated with a known drug dealer. She claimed discrimination because she has a disability and was reinstated on statute of limitations grounds but, on appeal, the lawsuit was decided in favor of the City. Before Suit I went to trial, Plaintiff was again fired after an alleged suicide attempt about which the City determined she had made false statements to law enforcement. She pursued an administrative appeal of her second firing (“Suit II”), with the arbitrator finding in her favor, but the city manager terminated her anyway. The Court of Appeal found in favor of the City, and Plaintiff did not seek further review. While Suit I was on appeal and the proceedings in Suit II were still pending, Plaintiff filed another lawsuit against the City (“Suit III:), alleging a pattern of discrimination and harassment by the City because of her disability. The court found that under 28 U.S.C. section 1738, it was obligated to apply California’s principles of issue and claim preclusion, and in doing so, it found that Suit I precluded Plaintiff from arguing that the City had harassed or discriminated against her based on perceived disabilities and Suit II precluded her from arguing that her termination was a pretext for retaliation. Because these issues were precluded, there were no valid claims left in Suit III, so the court upheld its dismissal. White v. City of Pasadena (9th Cir. 2012) 671 F.3d 918.

Plaintiff May Avoid Summary Judgment in ADA Claim by Explaining Contradictory Statements in Applications for Disability Benefits

Plaintiff worked in the District from 1992 to 2008. She first taught elementary school. In 2001, Plaintiff had a back injury that limited her mobility and led her to pursue a less physically demanding job within the school setting. Plaintiff earned her literary-specialist certification in 2004 and took a job as a literary specialist in the District. Plaintiff remained a literary specialist in the District until 2008. In March 2008, the principal at the elementary school told Plaintiff that she would be reassigned to teach kindergarten for the 2008-2009 school year. Plaintiff objected, asking to remain in her literary-specialist position because her back injury prevented her from teaching. According to Plaintiff, she could not perform the “standing, bending, [and] stooping required to be an effective kindergarten or elementary school teacher.”

On April 21, 2008, Plaintiff filed a request for leave under the Family and Medical Leave Act of 1993 (“FMLA”). On the request form, Plaintiff’s doctor explained that Plaintiff was “presently incapacitated” and could not “work at all until released by [a] doctor.” In May 2008, Plaintiff applied for and began receiving private disability benefits through American Fidelity Assurance Company. In her application for these benefits, Plaintiff stated that her “dates of total disability” ranged from March 31, 2008 to “Not Sure.” Two months later, Plaintiff sought an extension to her FMLA benefits and filed an updated form with her doctor’s statement that Plaintiff was “presently incapacitated,” would “be out of work indefinitely,” and could do “no work of any kind until released by a doctor.” In late August, Plaintiff applied for disability retirement under the PERS on the basis that she could not perform the duties required for her current job as a kindergarten teacher, including standing for long periods of time, bending, stooping, walking, lifting, and reaching. She also explained that she could not perform the lifting, bending, and stooping required for her former job as a literary specialist, but she could sit to work. Her doctor certified that Plaintiff was “unable to work due to injury or mental or physical illness.” The Retirement Board approved Plaintiff’s application for “total and permanent disability” in October 2008.

At the same time, Plaintiff and the District also engaged in negotiations over whether and how she could return to work. Plaintiff contended that she could not work as a teacher, but could work as a literary specialist. The District contended that it could not put her back into a literary specialist position, but offered a teaching position with accommodations. Plaintiff ultimately resigned so that she could receive PERS disability retirement benefits.

Plaintiff sued the District in federal court, alleging that it violated the Americans with Disabilities Act (“ADA”) by discriminating against her and not providing reasonable accommodation. The District moved for summary judgment, asserting: (1) that Plaintiff was not a “qualified individual” under the ADA because she had represented on her applications for disability benefits that she was permanently disabled; and (2) that the district did not deny Plaintiff a reasonable accommodation. The District Court ultimately granted summary judgment, and Plaintiff appealed.

The Ninth Circuit reversed the judgment. It held that, in deciding whether Plaintiff was a “qualified individual” under the ADA, the District Court improperly applied the framework set

forth in Cleveland v. Policy Mgmt. Sys. Corp (1999) 526 U.S. 795, for analyzing the effect of inconsistent statements on applications for disability benefits. Relying on Cleveland, the Ninth Circuit first determined that Plaintiff’s claims for FMLA leave, private insurance benefits, and PERS disability retirement did not inherently conflict with her ADA claim because they did not account for her ability to work with reasonable accommodation. In addition, the Ninth Circuit held that, viewing the facts in the light most favorable to the Plaintiff, she had offered sufficient explanations for her inconsistent statements in her prior benefit applications so that her case could proceed past summary judgment. Therefore, the Ninth Circuit held that the trial court erred in granting summary judgment for the employer, and reversed and remanded for further proceedings. Smith v. Clark County School District (9th Cir. 2013) 727 F.3d 950.

Corrections Department Did Not Discriminate Against Officer Who Could Not Perform The Essential Functions of Position After Injury

Plaintiff worked as a correctional lieutenant at a state prison. After sustaining serious injuries to his left arm and hand in an automobile accident, Plaintiff lacked sufficient grip strength and range of motion to use a baton with his left hand. The ability to use a baton with both hands was a requirement for all correctional lieutenants. Plaintiff’s request for reassignment to administrative duties was denied. He was medically demoted to the position of associate government program analyst. Plaintiff appealed from a judgment denying his petition for a writ of mandate directing the State Personnel Board to set aside its order sustaining the decision of the Department of Corrections and Rehabilitation to medically demote Plaintiff to a non-peace officer position, and not to place Plaintiff in a newly-created administrative correctional lieutenant peace officer position. The court concluded that the law and evidence supported the Board’s decision that the Department had reasonably determined that Plaintiff was unable to perform the essential functions of his correctional lieutenant position even with reasonable accommodation. The court further concluded that the department acted reasonably in demoting Plaintiff to an available non-peace officer position for which he was qualified and could perform the essential duties. Furtado v. State Personnel Board (2013) 212 Cal.App.4th 729.

Strenuous Field Duties Were an Essential Function of Police Department’s Administrative Positions

Plaintiff was a police officer who had health problems and retired after the Police Department told him it had no positions available that did not require him to perform the strenuous physical duties regularly performed by patrol officers in the field. Plaintiff filed suit for violation of FEHA (disability discrimination, failure to accommodate, failure to prevent discrimination, retaliation, and refusal to engage in the good faith interactive process). The trial court granted summary adjudication of the retaliation claim and, following a bench trial, entered judgment for the Department on Lui’s discrimination and failure to accommodate claims. Plaintiff appealed.

The Court of Appeal affirmed, holding that the evidence supported the trial court’s finding that the strenuous activities listed by the Department were essential functions of administrative positions because the Department had a limited number of officers available to perform those functions and thus had a legitimate need to be able to deploy administrative

officers in the event of emergencies and other mass mobilizations, even though administrative officers were not frequently required to engage in those activities. In addition, the evidentiary factors outlined in Government Code section 12926, subdivision (f)(2), supported the finding that the duties in the Department’s “Sworn Members Essential Job Functions” list were essential functions of the administrative positions Plaintiff sought. The court, therefore, rejected Plaintiff’s discrimination and failure to accommodate claims under FEHA. Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962.

Employer Was Only Required to Respond to Employee’s CFRA Leave Within 10 Days Plaintiff, a route driver for a linen supply company, informed his Manager, on June 14, 2004 that he needed seven weeks off to care for his mother after she underwent back surgery. Plaintiff’s mother lived in Sweden and was scheduled to undergo surgery. According to Plaintiff, his Manager told him he could take the leave if he completed an application and submitted a doctor’s certification. The Manager testified that he never told Plaintiff he was approved for family leave and explained that only the human resources department (HR) could authorize family leave. The payroll clerk provided Plaintiff with some forms to fill out, which he returned. Plaintiff checked the box on the form indicating that he was eligible for leave, but the payroll clerk “whited out” the mark and told Plaintiff that HR would make the decision regarding eligibility leave. The payroll clerk testified that Plaintiff responded that, “he didn’t care. He was going anyway.” An area manager also instructed Plaintiff to train a driver to take over his route in his absence. The payroll clerk provided Plaintiff a health care provider form which was completed by the doctor and faxed back. Later, an area manager informed Plaintiff that his family leave request was denied because Plaintiff had not worked 1,250 hours the preceding year, a requirement under both FMLA and CFRA. Plaintiff was told that if he failed to report to work he would be terminated. Plaintiff left for Sweden and was terminated.

Plaintiff sued the company and argued that the company should be estopped from asserting that he did not qualify for family leave because it did not inform him that his leave was denied until after his mother had her surgery. The trial court found in favor of the company. Plaintiff appealed. The Court of Appeal concluded that substantial evidence supported the trial court’s decision that defendant did not misrepresent by deed that Plaintiff’s leave application was approved. A payroll clerk made it clear that Plaintiff was not eligible for leave until HR approved the application. Substantial evidence also supported the trial court’s decision that the company did not remain silent when it had a duty to speak. The company first responded by telling Plaintiff what he had to do - fill out a form and get medical certification. Next, the company responded when the payroll clerk told Plaintiff that approval had to come from HR, he could not assume the leave had been approved, and could not check the eligibility box himself. To underscore this point, she whited out Plaintiff’s hand-noted approval. In other words, the company responded that it was processing the application, and until HR said “Yes,” he was not approved for leave. The company also requested that Plaintiff have a doctor complete the appropriate government certification form. Olofsson v. Mission Linen Supply (2012) 211 Cal.App.4th 1236.

Plaintiff Had Plead Facts Sufficient to Support an Association-Based Disability Discrimination Claim Based on His Relationship or Association With His Physically Disabled Sister

When Plaintiff was hired in September 2010, he informed his employer he planned in February 2011 to donate a kidney to his physically disabled sister, and requested that he be given leave to do so. Plaintiff later requested that the leave be extended and paid under the then-newly enacted Michelle Maykin Memorial Donation Protection Act (“DPA”), Labor Code sections 1508–1513, which would become effective January 1, 2011. Plaintiff was fired two days before the DPA became effective. He sued his former employer for violation of the DPA and other provisions of the Labor Code, violation of the Fair Employment and Housing Act, Government Code section 12940 et seq. (FEHA), and wrongful termination in violation of public policy.

The employer filed a general demurrer to the first amended complaint. The trial court sustained with leave to amend the employer’s demurrer to the causes of action for wrongful termination in violation of public policy, and FEHA claims for associational discrimination and failure to maintain an environment free of discrimination. The court sustained the demurrer without leave to amend as to the causes of action for violation of the DPA, retaliation for participation in a protected activity, and retaliation in violation of FEHA (the first, second, fourth and seventh causes of action). Plaintiff appealed from the judgment of dismissal entered after the trial court sustained the general demurrer.

The Court of Appeal held that the trial court properly sustained without leave to amend demurrers to Plaintiff’s claims for violations of the DPA because the DPA was not in existence at the time of Plaintiff’s termination and that the DPA cannot be applied retroactively. The Court of Appeal further held that the trial court properly sustained Plaintiff’s claim for retaliation in violation of FEHA because a mere request — or even repeated requests — for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation in violation of FEHA. The Court of Appeal also held that the trial court properly sustained without leave to amend demurrers to Plaintiff’s claims for direct or perceived disability discrimination under FEHA. Plaintiff had not established that he is himself physically disabled, but rather claimed that he anticipated becoming disabled for some time after the organ donation which is insufficient. Nor was Plaintiff himself perceived or treated by the employer as having, or having had, a “physical disability” or as having, or having had, a disease, disorder, condition, or health impairment that might become a “physical disability.” As far as the employer was concerned, Plaintiff was a nondisabled employee complaining that he would not be paid for taking more leave than it had agreed to allow him to take (unpaid).

The Court of Appeal held that the trial court erred in sustaining the demurrer to the association-based disability discrimination claim because Plaintiff had plead facts sufficient to support the claim based on his relationship or association with his physically disabled sister. Acknowledging that there had been no California cases interpreting the term “disability by association,” the court reviewed Larimer v. International Business Machines Corporation (7th Cir. 2004) 370 F.3rd 698, a federal decision interpreting the ADA, which sets forth three bases for disability by association: expense, disability by association, and distraction. The Court found that, although Plaintiff’s case does not fall entirely within any of these three examples, his complaint alleged the minimum facts necessary to pursue litigation on the basis of expense

discrimination because he alleged that his requested leave “under the DPA would cause the employer to incur certain expense.” The court concluded that “the reasonable inference is that the employer acted preemptively to avoid an expense stemming from Plaintiff’s association with his physically disabled sister.” Accordingly, the Court of Appeal concluded that Plaintiff could proceed with his claims regarding discrimination and wrongful termination claiming that the employer violated Labor Code Section 12940(k).

Similarly, the Court of Appeal held that Plaintiff plead facts sufficient to support a claim that the employer violated FEHA by failing to take the necessary steps to provide an environment free from discrimination, because it is dependent on a viable claim for discrimination and Plaintiff’s FEHA claim for associational disability discrimination survived. Similarly the Court of Appeal held that since the trial court erred in sustaining the demurrer to the associational disability discrimination claim, it also erred in sustaining the demurrer to Plaintiff’s wrongful termination in violation of public policy claim. Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635.

Employees Must Show Discrimination Based on Pregnancy Disability Was a “Substantial Motivating Factor” For Termination

Plaintiff Alamo went on a pregnancy-related leave of absence in 2009. Plaintiff’s supervisor had some concerns about the employee’s performance, although she did not consider any of the issues severe enough to warrant discipline. During the Plaintiff’s leave of absence, however, the supervisor became aware of other performance problems that she considered more troubling, including Plaintiff’s failure to address outstanding accounts for customers with large unpaid balances. Consequently, the employer terminated Plaintiff at the end of her leave of absence.

Plaintiff subsequently filed suit for pregnancy discrimination in violation of FEHA and wrongful termination. The trial court instructed the jury that Plaintiff had to prove her pregnancy or taking pregnancy-related leave was “a motivating reason” or “a motivating factor” for her termination. It also refused to instruct the jury regarding the mixed-motive defense because the employer failed to raise the defense in its answer. After trial, the jury returned a verdict in favor of the Plaintiff and awardee her damages in the amount of $10,000.

On appeal, the Court of Appeal initially affirmed the judgment. The employer filed an appeal with the California Supreme Court, which granted the petition and held that case while it decided a related issue in Harris v. City of Santa Monica (2013) 56 Cal.4th 203. There, the California Supreme Court held that where an employee demonstrates that unlawful discrimination was a substantial motivating factor in a challenged adverse employment action, and the employer proves that it would have made the same decision absent such discrimination, a court may not award damages, back pay or reinstatement. Thereafter, the state high court directed the Court of Appeal to reconsider the issues in light of the ruling in Harris.

On remand, applying Harris, the Court of Appeal ruled the trial court erred by giving instructions requiring Plaintiff to prove pregnancy was a “motivating factor” in her discharge, rather than a “substantial motivating factor.” The Court of Appeal rejected the Plaintiff’s

contention that a jury in an employment discrimination case would not draw any meaningful distinction between the two standards in deciding whether there was unlawful discrimination. Instead, the Court of Appeal found that “[r]equiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision.” In remanding the case to the trial court, while it refused to opine on the amount of evidence necessary to establish a claim, the Court of Appeal directed the lower court to instruct the jury to determine whether discrimination was a substantial motivating factor in the employer’s decision. Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466.

Disability Due to Pregnancy May Require Employers to Engage in The Interactive Process and Identify Reasonable Accommodations After Pregnancy Leave Exhausted

Plaintiff Sanchez worked as a cleaning agent. Plaintiff was diagnosed with a high-risk pregnancy and prescribed bedrest until her delivery date. Her employer granted Plaintiff a 19-week leave of absence, consisting of the employee’s accrued vacation time and her four-month leave entitlement under the PDLL. Plaintiff alleged that following those 19 weeks of leave the employer simply fired her without first engaging in the interactive process or determining what reasonable accommodations might be available as an alternative as required under FEHA. Plaintiff sued the employer for, among other things, employment discrimination in violation of FEHA. The employer demurred, contending it satisfied its obligations under PDLL by providing Plaintiff with four months of leave and was required to do nothing further. The trial court agreed and sustained the employer’s demurrer without leave to amend. Plaintiff appealed.

The Court of Appeal held that PDLL augments, and does not replace, the other requirements under FEHA, specifically the requirement that employers engage in the interactive process and provide reasonable accommodations of a disability as long as the accommodation does not create an undue hardship. Significantly, the court also expressly stated that, “A finite leave of greater than four months may be a reasonable accommodation for a known disability under the FEHA.” The Court of Appeal reversed the trial court’s dismissal and sent the case back to the trial court for further proceedings. Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331.

California’s FEHA Disability Regulations

On December 30, 2012, new regulations interpreting the disability provisions of FEHA went into effect. The regulations can be found at www.dfeh.ca.gov/publications.htm. The regulations make clear that employers should focus on engaging in the interactive process and providing a reasonable accommodation. “[T]he primary focus in cases brought under the FEHA should [not] be . . . whether the individual meets the definition of disability, which should not require extensive analysis.” The new regulations include a detailed explanation of the interactive process and emphasize that employers must start the process whenever an employee or applicant with a known disability requests a reasonable accommodation, or whenever they become “aware” of the need for an accommodation through a third party or by observation. In addition, employers must start the interactive process when an employee exhausts leave under other laws and the employee’s health care provider indicates that further accommodation is necessary.

Although an employer must “consider” the employee’s preferred accommodation and, in fact, give it first consideration, the employer is free to implement another effective accommodation.

Employers may require the applicant or employee to provide medical documentation confirming the existence of a disability and the need for an accommodation; however, an employer still cannot ask for medical information that identifies the underlying disability. Health care providers who can furnish information now include: marriage and family therapists, acupuncturists, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers, and physician assistants. The employer must separate from the personnel file and keep confidential any medical information that it obtains through the interactive process.

The regulations provide that employers can rely only on “accurate, current job descriptions” as evidence that a job function is essential. Employers can also rely on “[r]eference[s] to the importance of the performance of the job function in prior performance reviews.”

Employers may have to provide leaves of absence for treatment and recovery as a reasonable accommodation. However, the employee has the burden of showing 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 accommodation.” The FEHC explicitly rejected a “bright line” test of how much leave is too much, preferring to rely on “undue hardship” on a case-by-case basis as the determining factor. The regulations acknowledge that an employer need not provide indefinite leave. The regulations clarify that creating a new position for a statutorily disabled employee is not a reasonable accommodation. Lowering quality or quantity standards is also not a reasonable accommodation. The employer, however, maintains its obligation to reasonably accommodate the employee to meet its standards. Any leave time taken must be excluded from assessing productivity. Similarly, the employer must exclude the leave time in distributing bonuses based on productivity.

The regulations recognize that the employee bears the burden of establishing that he or she is a “qualified individual with a disability.” Thus, the employee must show that he or she can perform the position’s essential functions with or without accommodation. If the employee is a qualified individual with a disability, the employee need only show that the disability was a factor, not the sole or dominant one, in the adverse employment action.

The regulations also recognize that employers legitimately can defend themselves by showing that no accommodation exists that would allow the employee to perform the position’s essential functions without imposing an “imminent and substantial degree of risk” to the employee or others. However, an employer forfeits these defenses if the employer has not engaged in the interactive process.

The regulations specifically state that employers may have to allow “assistive animals” into the workplace as a reasonable accommodation. Assistive animals include not only guide, signal or service dogs, but also “support” animals that provide emotional support to individuals with disabilities. Employers may also require “minimum standards” for assistive animals. Those standards may include requirements that an animal is free from odors and “displays habits

appropriate to the work environment, for example, the elimination of urine and feces.” Employers may also require that the animal not engage in behavior that endangers the health or safety of employees and is trained to provide assistance for the employee’s disability. If an employee asks to bring an assistive animal to work as a reasonable accommodation, the employer is entitled to a letter from the employee’s health care provider both confirming the existence of a disability and explaining why the presence of the animal in the workplace is necessary to allow the employee to perform his or her essential job functions. The regulations permit an employer to challenge that the animal meets the standards “within the first two weeks the assistive animal is in the work place based on objective evidence of offensive or disruptive behavior.”

The regulations state that “[a]n applicant or employee who currently engages in the use of . . . medical marijuana is not protected as a qualified individual under the FEHA.”

California’s FEHA Pregnancy Regulations

On December 30, 2012, new regulations interpreting the pregnancy provisions of FEHA went into effect. The regulations can be found at www.dfeh.ca.gov/publications.htm. Employees are now eligible for up to four months of pregnancy-disability leave (“PDL”) per pregnancy, as opposed to per year. The regulations explain that “four months” is computed as the average number of days or hours that an employee would normally work within one-third of a year (equaling 17⅓ weeks). Thus, a full-time employee who works 40 hours a week would be entitled to 693 hours of leave (40 hours x 17.3 weeks). An employee may also take leave on an intermittent basis. An employer may account for that leave using either (a) the shortest period of time that the employer uses to account for any leave or (b) one hour, whichever is smaller.

The regulations expand the definition of “disabled by pregnancy.” Previously, a woman was “disabled by pregnancy” if she was unable to perform one or more of the essential functions of her job, or was unable to perform one of these functions without undue risk to herself, her pregnancy’s successful completion, or other persons. The regulations now also include a non-exhaustive list of conditions that may render an employee “disabled by pregnancy,” such as: severe morning sickness, needing time off for prenatal or postnatal care, bed rest, post-partum depression, gestational diabetes, pregnancy-induced hypertension, preeclampsia, childbirth, loss or end of pregnancy, and recovery from childbirth, loss or end of pregnancy.

The regulations also clarify that employers must continue insurance coverage for the entire PDL period, under the same conditions as if the employee had not taken the leave. Moreover, employers may not use the time they maintain and pay for health coverage during pregnancy leave to meet their obligations to provide coverage for CFRA protected leave. Therefore, employers may be required to maintain the employee’s healthcare coverage for a period of up to 29⅓ weeks if the employee takes her maximum PDL entitlement and then takes her maximum CFRA entitlement for baby-bonding (or for any other CFRA-qualifying reason).

Under the new regulations, an employer must reinstate the employee to the exact same position and the employer must guarantee reinstatement in writing if the employee asks for a written guarantee. An employer is excused from reinstating an employee to her exact same position only if the employer can prove, by a preponderance of the evidence, that the employee

would not have been employed upon her return for reasons unrelated to the leave, such as a mass layoff. Employers can no longer refuse to reinstate an employee to her same position by arguing that keeping her position open would substantially undermine the employer’s ability to operate the business safely and efficiently. As before, if an employer cannot reinstate an employee to her exact same position, the employer has a duty to reinstate her to a comparable position for which she is qualified. Previously, employers were required to notify employees of comparable positions that became available within ten days of the employee’s scheduled date of reinstatement. Now, employers must notify the employee of comparable positions that become available within 60 calendar days of the employee’s scheduled date of reinstatement, or to which she is entitled because of a prior agreement or policy. If an employee takes CFRA leave after PDL, CFRA controls reinstatement, and the employer must reinstate the employee to the same or comparable position.

The regulations also make clear that an employee is entitled to a transfer to a less strenuous or hazardous position if the employee’s health care practitioner states that it is medically advisable and the employee is qualified for the position. An employer can deny the transfer only if it proves, by a preponderance of the evidence, that it cannot reasonably accommodate the request. An employer is not required to create a job if it would otherwise not have created the job, if it would have to discharge another employee, or if it would violate a collective bargaining agreement. However, the employer must create a light-duty job if it has done so for occupationally-injured employees. The regulations also include a non-exhaustive list of other types of accommodations, such as modifying work schedules, providing stools or chairs, or allowing more frequent restroom breaks. An employer may be required to offer additional leave as a reasonable accommodation for a pregnancy-related disability, even after the employee has exhausted her right to four months of PDL.

The new regulations also require employers to give employees advance written notice of their rights under the statute. The notice must include very specific information. Although an employer may create its own notice, the regulations also provide template notices that employers can use. The regulations provide one notice template for employers that are not covered entities under the CFRA and a separate notice template for covered employers. Employers must distribute the notice in all of the following ways: (1) via posting in a conspicuous space (electronic posting is acceptable); (2) by giving it to an employee who notifies the employer of her pregnancy; and (3) by publishing it in the next edition of the employee handbook or, alternatively, distributing it annually (electronic distribution is acceptable). The employer must provide a translated version of the notice if 10 percent or more of its workforce has a primary language other than English.

An employer may require medical certification for leave, transfer, or other reasonable accommodation. Although an employer may develop its own form, the regulations provide a medical certification form for pregnancy-related issues that the employer may use. The employer must give the employee at least 15 calendar days to return the form.

Finally, employees who are “perceived to be pregnant” are now also protected from discrimination.