If states are laboratories of democracy, as so famously coined by Supreme Court Justice Louis Brandeis, then the Bunsen burners in California have been turned up to eleven. At both the state and local level, California continues to lead the country in providing stronger rights and protections to employees than those available under federal law. For employers operating in the state, however, it may feel like you need to be a rocket scientist to stay compliant with the patchwork of laws that keeps bubbling up from Los Angeles to San Francisco.
Chelsea Mesa and Andrew McNaught, California partners in Seyfarth Shaw’s Labor & Employment Department, held a breakfast seminar June 16 to update employers on recent developments and the peculiarities of California employment law. They even brought coffee.
Engage in the Interactive Process
Currently, one of the most active areas in California disability discrimination law involves what is known as the “interactive process,” McNaught said.
“Regardless of whether the employer actually can offer a reasonable accommodation to an employee, there is still the mandatory obligation to enter into the interactive process with that employee, which involve[s] communicating with them about reasonable accommodations and what might be done in that area,” he explained. There’s a separate cause of action for failure to engage in the interactive process, even if no accommodation could have been made, he added.
As a practical response, McNaught suggested that companies do the following:
New Duty to Accommodate
McNaught also highlighted the recent court of appeals decision in Castro-Ramirez v. Dependable Highway Express Inc., 246 Cal. App. 4th 180, 2016 BL 105734 (Cal. Ct. App. 2016). In that case, the court held the California Fair Employment and Housing Act, which prohibits associational disability bias, creates a duty to accommodate employees without disabilities who are “associated” with disabled individuals.
Further, this ruling appears to create an entirely new obligation to provide additional leave even where leave under the Family and Medical Leave Act has been exhausted, Mesa noted.
“All of a sudden, we’ve got this entirely changed landscape of what we do with respect to somebody requesting leave to take care of someone else. Before if they were entitled to FMLA and California Family Rights Act [leave] and it expired, we didn’t have to grant any more leave, and now it appears that we will under this case,” she stated.
Other FEHA Updates
According to McNaught, the FEHA recently was updated to require employers to implement specific policies prohibiting discrimination, harassment and retaliation. These policies must both be in writing and reference all protected categories under the Act—it’s no longer sufficient to use catch-all language.
In addition, there are new FEHA requirements for the complaint and response process. Employees must be allowed to complain to anybody—not just their immediate supervisor—and there are also new requirements for documenting, tracking and investigating employee complaints, McNaught said.
In the context of training, employers should be on notice that updated provisions mandate training every two years including a Q&A component, review of company policies and coverage of available remedial measures. Further, employers must retain written and recorded materials and sign-in sheets used in the training.
In light of these stricter requirements, the presenters encouraged employers to modify their policies and training content, if necessary, and to conduct and document trainings.
Leaves of Absence
With the flurry of recent activity in the area of employee leave, Mesa illuminated some key developments.
The California Family Rights Act regulations have been amended to more clearly delineate when the CFRA defers to or deviates from the FMLA, Mesa said. The CFRA’s notice and medical certifications also have been updated.
Mesa highly recommended using the updated California medical certification, cautioning “that if you are using a suite of forms that is compliant with FMLA, that you do not use them in California” because the state greatly restricts what employers can get in terms of medical information.
Another big development that kicked in last year is the California Paid Sick Leave law, which applies to all employees working in California for thirty or more days per year for a single employer. An amendment to this new law changed the calculation of paid sick time from an hourly rate to a regular rate for nonexempt employees. Mesa believes this is an area where plaintiffs’ attorneys will focus because “it’s ripe for error.”
Not to be outdone, cities have been very active in this area as well. Los Angeles, Santa Monica, San Diego and San Francisco all have ordinances providing combinations of more favorable days per year, accrual and cap components than are available under state law.
San Francisco is also on track to become the first jurisdiction in the country to mandate fully-paid gender-neutral parental leave for bonding with a new child. This law will take effect Jan. 1, 2017, and will apply to employers with fifty or more employees.
Further, both the state’s Kin Care law (Lab. Code. § 233) and school activities leave law (Lab. Code § 230.8) have been amended to provide employees with additional protections related to the care of family members. Mesa notes that this “makes it much more difficult to discipline employees for using too much PTO” and recommends employers partner with counsel before disciplinary decisions are made.
To promote compliance with the state’s myriad leave requirements, Mesa recommended that employers:
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