California’s Fair Employment and Housing Act (the “FEHA,” Cal. Govt. Code § 12940 et seq.) prohibits employers from harassing or discriminating against any employee or job applicant on the basis of physical or mental disability or a serious medical condition.
The FEHA requires employers in the state of California to provide reasonable accommodations for employee disabilities and serious medical conditions, to permit employees who are disabled or suffering from a serious medical condition to continue to work while accounting for their specific medical needs. California’s FEHA also bars employers from retaliating against employees on the basis of a disability or serious medical condition, for seeking reasonable accommodations for a disability or serious medical condition, or for reporting discrimination or harassment based on a disability or serious medical condition.
In addition to the FEHA, a variety of different state laws provide California employees with the right to take leave time from work due to a personal illness, disability or medical condition, to care for a close family member’s illness, disability or medical condition, or to bond with a new addition to the family. You may be eligible to be paid during your family or medical leave time, depending on the circumstances and which leave statute applies. Certain California family and medical leave laws also provide employees with job protection during their leave period.
If you have been harassed or discriminated against or experienced retaliation in the workplace as a result of a disability or serious medical condition, California’s FEHA may give you the right to file a civil lawsuit for monetary damages against your employer. You may also have the right to pursue civil remedies against your employer for failure to comply with applicable family or medical leave laws, or for retaliating against you for requesting family or medical leave time or reporting a violation of applicable family or medical leave statutes.
Generally speaking, the FEHA applies more broadly than its federal counterpart, the Americans with Disabilities Act (the “ADA”). The FEHA, for instance, covers employers with at least five (5) employees in the State of California, while the ADA covers only employers with at least fifteen (15) employees.
The FEHA defines a physical disability as a temporary or permanent disease, disorder, condition or disfigurement that affects the body and limits (or makes it more difficult to perform) major life activities. Physical disabilities covered by the FEHA include, for example:
· Chronic diseases
· Pregnancy or childbirth
· Impaired hearing, vision or speech
· Loss of a limb
· Organ impairment
The FEHA defines mental disability to include any mental or psychological condition or disorder that limits a major life activity, including but not limited to:
· Clinical depression
· Anxiety disorder
· Intellectual disabilities
· Certain learning disabilities
· Bipolar disorder
· Obsessive-compulsive disorder
For purposes of the FEHA’s definition of both physical and mental disabilities, “major life activities” includes basic daily activities such as:
· Speaking and communicating
· Caring for oneself
· Performing physical or manual tasks and activities
· Thinking, focusing or concentrating
· Engaging in social interactions
“Major life activities” also encompasses major functions of the body, including but not limited to:
· Neurological or brain functions
· Digestive functions
· Bowel or bladder functions
· Respiratory or circulatory functions
· Endocrine system functions
· Immune system functions
· Normal cell growth
· Reproductive system functions.
California’s FEHA also protects employees from discrimination or harassment based on any serious medical condition. This includes health impairments related to a diagnosis or history of cancer, genetic characteristics and genetic conditions, and a variety of other conditions. Serious medical conditions will often overlap with recognized physical and/or mental disabilities protected by the FEHA.
The FEHA additionally prohibits California employers from discriminating against or harassing employees or job applicants based on a perceived disability, even if the employee or applicant in question is not actually disabled. California employers are also barred from discriminating against employees or applicants due to their spouse’s or a close family member’s actual or perceived disability.
Both California’s FEHA and the federal ADA make it a violation of state law for an employer to treat a qualified employee or job applicant less favorably because of any actual or perceived physical or mental disability or serious medical condition. This kind of less favorable treatment is called “discrimination.”
An individual is “qualified” for a job if they can perform the essential functions of that position, either with or without reasonable accommodations.
Unlawful disability discrimination can take many forms. Among other things, the FEHA bars California employers from taking any of the following actions based on an employee or applicant’s actual or perceived disability or serious medical condition:
In the pre-employment context, while an employer may ask a job applicant if they are able to perform job-related functions, the FEHA prohibits California employers from asking job applicants to answer application or interview questions about their general health, medical condition, or physical or mental disabilities. If a job applicant is unable to perform essential functions of the job due to a disability, the employer is obligated to provide available reasonable accommodations that would permit the applicant to perform those essential functions. An employer may legally refuse to hire an applicant with a disability or serious medical condition if the applicant remains unable to perform the essential functions of the position even with reasonable accommodation. Reasonable accommodation for disabilities is discussed separately in more detail below.
Employers are prohibited by the FEHA from requiring job applicants to take a medical or psychological exam if other job applicants are not also required to take those exams, or if the exams are not job-related and consistent with business necessity.
With respect to existing employees, the FEHA generally only permits California employers to ask an employee medical questions, or require that the employee take a medical examination, if (1) the employer believes the employee is unable to safely or successfully perform a job due to a disability or medical condition; or (2) the employer needs medical documentation to support the employee’s request for a reasonable accommodation.
Reasonable accommodations are job modifications or other measures that would allow the disabled employee or job applicant to perform the essential functions of their job, such as:
· Modifying or adjusting the job application process
· Adjusting work schedules or working hours
· Modifying work policies
· Modifying equipment used on the job
· Providing equipment to help an employee perform their job
· Allowing the use of hearing aids or other assistive devices
· Allowing employees to use service dogs and support animals
· Restructuring job duties or requirements
· Reassignment to another available position
· Providing readers or interpreters
· Modifying training materials
· Making a worksite wheelchair accessible
· Allowing unpaid medical leave time, and
· Allowing employees to take time off work to attend doctor’s appointments, and
· Modifying or relaxing work restrictions for disabled employees
The law also requires California employers to engage in a timely, good-faith interactive process (or discussion) with employees and applicants, in order to determine whether a reasonable accommodation would allow the employee or applicant to perform their essential job functions, and to identify what reasonable accommodations may be available.
California law requires employers to respond in a timely manner to requests from employees or job applicants for reasonable accommodations, and to do so in good faith. Employers must also reasonably accommodate an employee or applicant’s disability even if they do not expressly request an accommodation if the disability or serious medical condition is observable by the employer, or if someone else makes the employer aware of that disability or serious medical condition.
An employer may have a defense to failure to provide reasonable accommodations if doing so would cause the employer “undue hardship” – in other words, significant difficulty or expense. Whether a reasonable accommodation would cause an employer undue hardship will depend on the particular facts at issue, including but not limited to:
Medical, sick and family leave available to eligible California employees include:
· Paid Sick Leave
· Family and Medical Leave, including
– the federal Family and Medical Leave Act (“FMLA”)
– the California Family Rights Act (“CFRA”)
– California’s Healthy Workplaces, Healthy Families Act (the “HWHFA”),
– California’s Kin Care Law (“KCL”),
– California’s Fair Employment and Housing Act (the “FEHA”), and
– California Paid Family Leave (offered through California’s State Disability Insurance (“SDI”) program)
· Pregnancy Disability Leave
· New Parent Leave (e.g., maternity/paternity leave, baby bonding leave, etc.)
· Organ or Bone Marrow Donor Leave
· Drug or Alcohol Rehabilitation Leave
· Military Injury Leave
· Domestic Violence Victim Leave
Certain California counties and cities have their own local Paid Sick Leave laws that may entitle eligible employees to more paid sick leave time annually than that provided by state law. Many California employers also have policies providing for paid leave time when an employee is sick, needs time off to care for a close family member, or requires other leave time from work. Check with your employer to find out what paid sick leave time policies they may have available.
Federal and state leave laws applicable to California employees have different eligibility requirements, and only eligible employees are protected by medical, sick and family leave laws. To qualify for a particular type of medical leave, an employee may have to work for the employer first for a minimum period of time, work a certain minimum number of hours over the course of the past year, or satisfy other requirements specified by statute.
Certain family and medical leave laws provide qualifying employees with job protection for up to twelve (12) weeks of leave time. Leave laws that provide job protection prohibit California employers from demoting, terminating or taking other adverse employment action against an employee for taking family or medical leave time, and require employers to return eligible employees to the same job or a substantially equivalent position at the end of their leave period. To be “equivalent,” a position must be virtually identical to the employee’s former position with respect to pay, benefits and working conditions, and must involve the same or substantially similar job duties and responsibilities.
Leave from work may be paid or unpaid, depending on which leave laws apply. Some California leave laws require that wages be paid or replaced during an employee’s leave period, including the Paid Sick Leave Act, Kin Care Law, and the Paid Family Leave Act.
· Up to forty (40) hours of leave time for isolation and quarantine, receiving vaccinations, and/or caring for a child whose school or day care facility is closed due to COVID-19, and
· Up to an additional forty (40) hours of leave time available for employees who test positive for COVID-19, or for employees who provide care to a close family member who tests positive for COVID-19.
The 2022 COVID-19 Supplemental Paid Sick Leave Act applies only to California employers with more than twenty-five (25) employees. Employees eligible for 2022 COVID-19 supplemental paid sick leave include employees who are unable to work (either in person or remotely) because:
· The employee is subject to a COVID-19 quarantine or isolation period as defined by state, federal or local public health authorities
· A health care provider has advised the employee to isolate or quarantine due to COVID-19
· The employee is attending an appointment for themselves or a close family member to receive a COVID-19 vaccine or booster shot
· The employee is experiencing symptoms, or is caring for a close family member experiencing symptoms, as a result of a COVID-19 vaccine or booster shot
· The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis
· The employee is caring for close family member who is subject to a COVID-19 isolation or quarantine order or medical guidance to isolate or quarantine due to COVID-19 exposure or illness
· The employee is caring for a child whose school or day care facility is closed or otherwise unavailable due to COVID-19 on the premises, or
· The employee, or a close family member for whom they are providing care, tests positive for COVID-19.
Under current state law, caps on daily and total COVID-19 sick leave payments to employees apply, with the current maximum $511.00 per day, and $5,110.00 in total COVID-19 sick leave payments to each eligible employee during 2022. California’s Supplemental COVID-19 Paid Sick Leave is in addition to any paid sick leave to which an employee may be entitled under county or local paid sick leave laws or California’s Healthy Workplaces, Healthy Families Act (Labor Code Section 246).
While using paid sick leave time, eligible employees are compensated at their regular rate of pay.
Most California employees – whether full time, part time or temporary, and whether exempt or non-exempt – are eligible to accrued and use paid sick leave time provided they have worked for their employer for thirty (30) or more days in a calendar year. Employees are eligible to being using accrued paid sick leave time beginning on their 90th day of employment.
Accrued paid sick leave time that remains unused at the end of the year may be carried over to the next year, up to a maximum of forty-eight (48) hours (or six (6) days), but no matter how much paid sick leave time an employee has accrued, an employer can limit employees to using a maximum of twenty-four (24) hours (or three (3) days) of paid sick leave time annually. A number of California cities have adopted sick leave ordinances that provide more generous paid sick leave benefits than state law, including San Francisco, Berkeley, Emeryville, Oakland, Los Angeles, Santa Monica and San Diego.
It is a violation of state law for California employers to deny eligible employees the right to accrue or use paid sick leave time. If you call in sick to work and ask to use accrued and available paid sick leave time, it is against the law for your employer to require you to report to work. California employers are prohibited from requiring employees to find a replacement worker to cover their shift(s) before using accrued and available paid sick leave time. Employers also are barred from retaliating against employees who use paid sick leave time, including by demoting, terminating, or taking other adverse employment action against them.
California employees who exhaust their annual paid sick leave time may still be entitled to a longer period of unpaid medical leave under other applicable state or federal leave laws, such as the Family and Medical Leave Act (“FMLA”), the California Family Rights Act (“CFRA”), and the Fair Employment and Housing Act (“FEHA”).
California employees also may be eligible to use accrued and available paid sick leave time for other types of emergency time off, including victims of domestic violence, sexual assault or stalking who need to seek medical attention, psychological counseling, obtain a restraining order, seek services from a rape crisis center or domestic violence shelter, or conduct safety planning to deter future domestic violence, stalking or sexual assault.
Employers in California may combine paid sick leave time and other paid time off (“PTO”) into a single leave bank, so long as they provide employees with the minimum amount of paid sick leave time required by law. Unlike PTO or vacation time, employers are not required to pay out the value of any unused accrued paid sick leave time when an employee quits or is terminated.
Under California’s Kin Care Law (“KCL”) and Healthy Families, Healthy Workplaces Act (“HFHWA”), eligible employees are entitled to take time off from work (including accrued and available paid sick leave time) to care not just for themselves, but also for a close family member. Under the KCL, California employees may use up to half (50%) of their annual paid sick leave time to care for or take to the doctor a close family member who is ill or disabled, including:
· A child, stepchild, foster child, adopted child, legal ward, or a child for whom the employee stands in loco parentis
· A spouse or registered domestic partner
· A parent (biological, adoptive, foster, stepparent, or legal guardian)
· A sibling
· A grandchild, or
· A grandparent.
Kin care leave does not extend to mothers-in-law or fathers-in-law in the State of California. Kin care leave can be used to care for family members who are experiencing major illnesses or suffering from a chronic disability, or even to care for a minor illness, like a cold or the flu.
Just like Paid Sick Leave time, leave time under the Kin Care Law is job-protected, requiring California employers to restore employees returning to work from kin care leave to their former position or a substantially equivalent job without demotion, reduction in pay or benefits, or other adverse employment consequences.
It is against the law for an employer to fire, demote, refuse to promote, suspend, or take other adverse employment action in retaliation against an employee for exercising their legal right to take Kin Care Leave time.
All private employers in California with at least five (5) employees and all public employers in California must provide pregnancy disability leave time to disabled pregnant employees who need it, regardless of whether they are part-time or full-time, how long they have worked for or how many hours of service they have with their employer. Pregnancy disability leave time is separate from and in addition to any post-childbirth leave time to which an employee may be entitled under other California leave laws.
An employee is considered “disabled” and eligible to take pregnancy disability leave if, in the opinion of her doctor, she is unable to perform one or more essential functions of her job as a result of pregnancy or a childbirth-related medical condition. Some of the most common conditions that may cause a pregnant employee to become temporarily disabled include (but are not limited to):
· Severe morning sickness or hyperemesis
· Gestational diabetes
· Need for physician-ordered bed rest
· Pregnancy-induced hypertension
· Miscarriage or emotional recovery from miscarriage
· Post-partum depression
Like paid sick leave time and kin care leave, pregnancy disability leave time is job-protected, and California employers are required to reinstate employees returning from pregnancy disability leave to their former position, or if that position is no longer available, to a substantially equivalent position (e.g., one that has the same or similar job duties and responsibilities and the same pay and benefits).
While California pregnancy disability leave time is usually unpaid, employers are required to maintain full medical coverage and all other health benefits for employees during their pregnancy disability leave. Employee may be eligible to be paid during pregnancy disability leave by using accrued and available paid sick leave time, vacation time or other paid time off, if they qualify for California’s short-term disability insurance program (“SDI”), or if their employer offers temporary disability pay.
Employees are eligible to take new parent leave time if:
· Their employer has at least five (5) employees
· They have worked for their employer for more than one (1) year prior to taking new parent leave time, and
· They have worked at least 1,250 hours for their employer during the twelve (12) months prior to taking new parent leave.
Under the CFRA and FMLA, new parent leave time must be taken within one year of the new child’s date of birth or placement in the employee’s household. An employee eligible to take new parent leave time is not required to take all twelve (12) weeks of available leave at one time. Eligible employees may take available CFRA or FMLA new parent leave time by working a reduced work schedule, or taking their leave time in increments.
New parent leave time under the FMLA and CFRA is unpaid, but eligible employees may use available paid sick leave time, vacation time or other paid time off for purposes of baby bonding or caring for a new child. Employees taking new parent leave also may be eligible for up to six (6) weeks of paid leave time through California’s Paid Family Leave Program, administered through the State Disability Insurance program.
CFRA and FMLA new parent leave time is job-protected, meaning that California employers must reinstate employees returning from new parent leave to their former position, or if that job is no longer available, to a substantially equivalent position (e.g., one that has the same or similar job duties and responsibilities, the same pay and benefits, and the same terms and conditions of employment). It is a violation of state and federal law for an employer to refuse to provide an eligible employee with new parent leave time, or for an employer to retaliate against an employee for using new parent leave time by harassing, demoting, suspending, firing, or taking other adverse employment action against them.
A “serious health condition” includes an illness, injury, impairment or mental condition that involves continuing treatment by a health care provider or inpatient care in a hospital, hospice or residential medical care facility.
To be eligible for CFRA leave time, an employee must have worked for their employer for at least a year and worked at least 1,250 hours for that employer in the last twelve (12) months before their leave time begins. The CFRA’s federal counterpart – the Family Medical Leave Act (“FMLA”) – has similar eligibility requirements, but applies only to employers with at least fifty (50) employees.
CFRA leave time is generally unpaid, unless the employee qualifies for paid leave or wage replacement under another state or federal law or under an employer’s specific paid leave policy. Covered employers must, however, continue to provide eligible employees with health insurance, accrued seniority and other existing benefits during their CFRA leave.
CFRA leave time is job-protected. California employers must reinstate employees returning from CFRA leave to their former position, or if that job is no longer available, to a substantially equivalent position (e.g., one that has the same or similar job duties and responsibilities, the same pay and benefits, and the same terms and conditions of employment). It is a violation of state and federal law for a covered employer to refuse to provide an eligible employee with CFRA leave time upon request, or for an employer to retaliate against an employee for requesting or taking CFRA leave time by harassing, demoting, suspending, firing, or taking other adverse employment action against them.
In addition to CFRA leave time, California employees may be eligible for additional unpaid medical leave time as a reasonable accommodation for a mental or physical disability or a serious medical condition under California’s Fair Employment and Housing Act, or “FEHA,” as discussed in more detail above.
Under the FEHA, covered California employers are barred from firing, demoting, suspending, or taking other negative employment actions against an employee for complaining about unlawful harassment or discrimination against themselves or any other employee or for filing a lawsuit or a complaint with a government agency for unlawful harassment, discrimination or retaliation. It is also against the law for covered employers to refuse to hire a job applicant for reporting or complaining about unlawful harassment or discrimination based on a disability or serious medical condition.
California law also prohibits covered employers from retaliating against eligible employees for requesting or taking family, medical or sick leave time, or for reporting a violation of applicable family, medical or sick leave laws.
If you have been the victim of employment harassment, discrimination or retaliation based a disability or serious medical condition, or retaliation for requesting or taking family, medical or sick leave time or reporting a violation of applicable leave laws and are concerned about the consequences of reporting that misconduct, we can assist you with the process of reporting unlawful conduct to your employer, taking steps to minimize the possibility of unlawful retaliation, and if need be, pursuing your civil remedies in court.
Danny Yadidsion and his experienced team of lawyers at Labor Law PC are dedicated to protecting the rights of California workers and ensuring that their voices are heard. If you have experienced harassment, discrimination or retaliation based on a disability or serious medical condition, your use of available leave time or reporting unlawful conduct in violation of state and federal family, medical or sick leave laws, we can assist you. Our attorneys value and respect your privacy, and will work tirelessly to help you get the justice that you deserve. Call us today at (877) 77-LABOR for a free consultation.