Understanding the Rights of Parents in the Workplace

Nelson Chan, Acting Chief Counsel

Department of Fair Employment & Housing

October 19, 2011

Educational Objectives

Identify areas of parental rights under the FEHA.

How to ask for protected benefits. How to respond.

Parental Rights under the FEHA

Pregnancy Disability Leave (PDL) rights. California Family Rights Act (CFRA) rights. Private Contractual rights.

Pregnancy Disability Rights Government Code section 12945 makes it unlawful to deny

reasonable leave, up to four months, to a female employee disabled by pregnancy, childbirth or related medical conditions.

The leave may be intermittent (e.g., for doctor’s appointments or sporadic episodes of pregnancy related disability) up to a total of four months.

Right to reinstatement to the same or substantially similar position. If the employee requests that the guarantee to reinstatement be in writing, the employer must do so. (Cal. Code, Regs., tit. 2, § 7291.9, subd. (a).)

Hypothetical 1 Sylvia works as a customer service representative at a national

call center. She is pregnant for the first time and is experiencing significant morning sickness. She has to leave her desk frequently and her production rate falls. Brad, her boss, tells her that if she does not keep up, he’ll put her on report. Sylvia brings a note from her doctor requesting that she be allowed breaks, as needed, over the next four weeks to accommodate her morning sickness. Brad tells her that she can resign but will be welcome to reapply when she can return to full duty, but says, “If you are going to be at work, you are going to work. Its not fair for the others to have to pick up your slack.” What should Sylvia do?

Answer to Hypothetical 1

C and D.

Sylvia has a right to intermittent breaks due to her pregnancy related disability. She does not have to resign; she should bypass Brad and go to HR where there should be more experienced professionals. As a backup, however, she may wish to contact the DFEH.

Pregnancy Disability Rights

It is unlawful for an employer to:

Deny a pregnant employee reasonable accommodation for conditions related to pregnancy, childbirth or related medical conditions. (Gov. Code § 12945, subd. (b)(1).)

Refuse to temporarily transfer a pregnant employee to a less strenuous or hazardous position for the duration of her pregnancy. But the employer need not create additional jobs or fire, demote or transfer other workers (Gov. Code § 12945, subd. (b)(3).)

Pregnancy Disability Rights The protections of Government Code section 12945 are in

ADDITION TO the protections of the FEHA such as:

Protections against discrimination or harassment based on sex or disability. (Gov. Code § 12940, subd. (a));

Sexual harassment (Gov. Code § 12940,subd. (j));

Right to reasonable accommodation (Gov. Code § 12940, subd. (m));

Right to the interactive process to explore reasonable accommodations (Gov. Code § 12940, subd. (n));

Duty to take reasonable steps to prevent discrimination (Gov. Code, § 12940, subd. (k)).

Pregnancy Disability Rights

Refer to the regulations promulgated by the Fair Employment and Housing Commission: California Code of Regulations, title 2, section 7291.2 et seq.

Hypothetical No. 2 Lupe works as a manager for Acme, a national retail

chain. Her doctor places her on leave for four months beginning the third month of her pregnancy. After the four months are up, Lupe’s doctor gives her a note extending her leave for another two weeks. Lupe asks for the next two weeks off, pointing out that she is also entitled to leave under the California Family Rights Act. Acme says no.

Has Acme violated the law? Does Acme need to consider the medical note and engage in

the interactive process with Lupe?

Answer to Hypothetical 2

No and Yes. Although Acme does not have the obligation to extend CFRA rights

to Lupe before the birth of her child (Cal. Code Regs., tit. 2, § 7297.6, subd. (c)(1)), it must still treat Lupe’s request for what it is: a request for reasonable accommodation for a disability. Lupe is entitled to the interactive process and, accommodation in the form of two additional weeks of leave, unless Acme can prove an affirmative defense such as undue hardship.

Hypothetical No. 3

Cheryl works for the Taco House restaurant. Her newborn daughter’s daycare is next door. Cheryl uses her breaks to express milk and or to breastfeed her child in the restaurant break room. Guy, the owner, objects and fires Cheryl when she refuses to stop. Cheryl files an action to get her job back and for backpay and emotional distress damages. Will she prevail?

Answer to Hypothetical No. 3Yes!

Dept. Fair Empl. & Hous. v. Acosta Tacos (June 19, 2009) No. 09-03-P, FEHC Precedential Decs. 2009 WL 6305853 (Cal.F.E.H.C.).

“ … [T]ermination in violation of complainant’s right to return to work from pregnancy disability leave because she was still breastfeeding was discrimination on the basis of sex, a violation of Government Code sections 12940, subdivision (a), and 12945, subdivision (a). (Gov. Code § 12935, subd. (h); Cal. Code Regs., tit. 2, § 7435, subd. (a).)”

Pregnancy Disability Rights

AB 210/SB 299, 2011 Legislative Session, set forth that employers already providing health insurance for employees must continue to do so for women on PDL for up to four months.

Signed by Governor Brown on October 6, 2011, and effective January 1, 2012, .

Affirmative Defenses to PDL

Employee would not otherwise have been employed due to legitimate business purpose (e.g. plant closure or layoffs).

No greater right to reinstatement to comparable position than an employee who did not take PDL.

Affirmative Defenses to Reasonable Accommodation

Inability to perform the essential functions of the job with or without reasonable accommodation/BFOQ.

Health or safety of the employee.

Health or safety of others.

California Family Rights Act

Government Code section 12945.2:

Family Care Leave. (Gov. Code § 12945.2, subd. (c)(3)(A).) “Baby bonding.”

Family Medical Leave. (Gov. Code § 12945.2, subd. (c)(3)(B).) Care for the serious health condition of a child.

CFRA and PDL are separate and distinct entitlements. May be taken consecutively. (Cal. Code Regs., tit. 2, § 7291.13, subd. (a).)

Right to reinstatement to same or similar position.

CFRA Essentials

The employer must have at least 50 employees within 75 miles of the worksite where the employee seeking CFRA leave is employed or be a governmental agency.

The employee must have worked at least 1,250 hours for the employer for the previous 12 month period.

Affirmative Defenses to CFRA Claims

Employment would have ceased.

Key employee.

Private (Contractual) Rights

If an employer has a more generous leave policy for other temporary disabilities the employer must provide the same leave to employees temporarily disabled by pregnancy. (Cal. Code Regs., tit. 2, §7291.7, subd. (b).)

If XYZ Corp. allows its employees six weeks of unpaid leave for temporary disabilities (e.g., broken leg), then it must offer six weeks to a woman needing PDL.

If ABC, LLC provides four weeks of paid leave for temporary disability, then PDL must be paid, as well.

Hypothetical No. 4 Jackson works as a cashier for GasQuick, an

independent chain of gas stations and convenience stores in Kern County. Jackson asks his boss, Dake for two months off to take his 12-year-old son to chemotherapy. Dake says okay, but then removes Jackson from the schedule and won’t give him any more hours. Assume you are the HR Manager for GasQuick and Jackson

asks you if he is entitled to family leave. What do you need to know?

Answer to Hypothetical No. 4

All of the Above.

1. Does GasQuick have 50+ employees within 75 miles of Jackson’s location?

2. Has Jackson worked there for 12 consecutive months?

3. Did Jackson log at least 1,250 hours.

4. Would Jackson have been laid off anyway?

5. Is Jackson a key employee?

Hypothetical No. 5 Quentin’s daughter has epilepsy and every now and then he has

to ask for time off to take care of her after she has a seizure. He may be gone for a few hours to a day or so.

Letty, his boss, fires him when he asks for leave stating that he received a call that his daughter has been hospitalized after a seizure. Letty claims that Quentin failed to give at least 48 hours notice as required in the company handbook.

Quentin sues for reinstatement and damages. Will he win?

Answer to Hypothetical 5

Yes.

Quentin is required to give reasonable notice. His daughter’s condition is not predictable. His verbal notice was sufficient because he included the detail of why he needed to leave. (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1).)

Closing ThoughtsEmployees should:

Be as explicit as possible about what they are requesting: family care or family medical leave (not necessarily why – privacy rights are not waived).

Requests should be in writing or confirmed in writing. Give as much notice as reasonably possible.

Employers should:

Review these technical statutes and regulations as well as internal policies before responding.

For More Information www.dfeh.ca.gov. DFEH Interactive Webinar Series. “Civil Rights 101” on YouTube. DFEH Facebook Page. DFEH Partnership Facebook Page. DFEH LinkedIn Page. DFEH Twitter. State Bar Labor & Employment Case Law Alerts.

THANK YOU!

www.dfeh.ca.govcontact.center@dfeh.ca.gov(800) 884-1684Videophone (916) 226-5285