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California Workplace Law Blog

New California Family Rights Act Regulations Become Effective July 1

Amendments to the California Family Rights Act (“CFRA”) regulations, going into effect on July 1, 2015, are meant to clarify a number of uncertainties, align the CFRA regulations more closely with the federal Family and Medical Leave Act (“FMLA”) regulations (where the laws are consistent), and ensure employers and employees have a clear understanding of their rights and duties under the CFRA.

Key provisions of the revised regulations are highlighted below.

  • Covered Employer: Amends the definition of “covered employer” to include successors in interest of a covered employer and joint employers. The new regulations do not provide any criteria for determining whether a joint employer relationship exists; rather, the relationship “is to be viewed in its totality based on the economic realities of the situation.”
  • Other Definitions: Amends the definitions of serious health condition, inpatient care, eligible employee, and spouse to include same-sex marriages and domestic partners.
  • Key Employee: Extensively revises the provisions regarding the identity of key employees and their reinstatement rights.
  • Eligibility for Leave: Details how to determine eligibility for leave, including establishing the leave year, determining an employee’s worksite if the employee works remotely or is jointly employed, and addressing breaks in service.
  • Fraudulent Use of Leave: Denies job restoration and maintenance of health benefits to employees who fraudulently obtain or use CFRA leave. The employer has the burden of proving that an employee committed the fraudulent conduct.
  • Calculating Leave Entitlement: Details how to calculate leave where the employee has part-time or other alternative schedules or cannot work overtime. Describes how to account for holidays during leave and how to manage situations where it is physically impossible for an employee using intermittent or reduced work schedule leave to begin or end work midway through a shift, such as where a flight attendant or railroad worker is scheduled to work on a plane or train.
  • Notice of Need for Leave: Addresses situations where an employee’s request for CFRA leave is not clear. For example, if an employee asks for vacation or other paid time off or offers to resign and informs the employer that the reason for the request is CFRA-qualifying, the employer is permitted to question the employee to determine whether CFRA leave is being sought and to obtain the necessary information concerning the leave. The employee has an obligation to respond to an employer’s questions, and the failure to respond may result in denial of CFRA protection if the employer is unable to determine whether the leave is CFRA-qualifying.
  • Substitution of Paid Leave for Unpaid Leave: Details permitted substitutions of paid time off or other benefits for unpaid CFRA leave.
  • Job Restoration: Requires the employer to engage an employee in the interactive process to determine whether an extension of leave would constitute a reasonable accommodation where the employee has a serious health condition that also constitutes a disability under the California Fair Employment and Housing Act (FEHA) and cannot return to work at the conclusion of his or her CFRA leave.
  • Group Health Coverage: Expands provisions on continuation of coverage and payment of premiums during CFRA leave.
  • Fitness-for-Duty/Return-to-Work: Clarifies an employer’s ability to seek such information.
  • Certification Requirements: Amends requirements regarding medical certifications, including penalties for failing to provide a certification. Revises the sample Certification of Health Care Provider form to include safe harbor language of the California Genetic Information Nondiscrimination Act of 2011 (CalGINA), and clarifies authentication and second opinion processes.
  • Posting: Permits electronic posting of CFRA notices and requires employers to translate the CFRA notice into every language spoken by at least 10 percent of its workforce.

Interference, Retaliation

The new regulations significantly expand protections against interference with protected rights and retaliation.

Interference is defined to include refusing to authorize CFRA leave, discouraging an employee from using such leave, and taking actions to avoid responsibilities under CFRA. The regulations provide that transferring employees from one worksite to another for the purpose of reducing worksites, or to keep worksites below the 50-employee threshold for employee eligibility under CFRA, would constitute “interference” with CFRA rights. Other examples of interference include: changing essential job functions to preclude the taking of leave, reducing an employee’s hours available to work to avoid employee eligibility, or terminating an employee when it anticipates an otherwise eligible employee will be asking for a CFRA leave in the future.

The regulations further provide that “interference” includes discriminating or retaliating against a current or prospective employee for having exercised or attempted to exercise CFRA rights or giving information or testimony regarding his or her CFRA leave, or another person’s CFRA leave. Employers cannot use the taking of CFRA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; neither can CFRA leave be counted against an employee under an employer’s attendance policies.

The regulations also provide that employees cannot waive, and employers may not induce employees to waive, their prospective rights under CFRA. However, this does not prevent the settlement or release of CFRA claims by employees based on past employer conduct without the approval of a court. This also does not preclude an employee from taking a light duty assignment while recovering from a serious health condition. Further, an employee’s acceptance of a light duty assignment does not constitute a waiver of the employee’s right to be reinstated to the same position or a comparable position.

All individuals, not merely employees who are CFRA-qualified, are protected from retaliation under CFRA.

Next Steps

California employers should review the new regulations and consult with experienced counsel regarding the changes. Employers also should review and revise their CFRA policies, posters, handbooks, and forms as may be necessary to conform to the amended regulations. In addition, employers should train their human resources personnel or managers responsible for administering CFRA leave requests and leave about these changes to the California requirements.

Please contact your Jackson Lewis attorneys if you have any questions about the amended regulations, and to discuss your specific organizational needs and how to comply.

Jackson Lewis’ Sacramento Office Named to the Sacramento Business Journal’s Top Litigation Law Firms List

Jackson Lewis P.C., one of the country’s largest and fastest-growing workplace law firms, is pleased to announce that the Sacramento office has been named on the Sacramento Business Journal’s Top Litigation Law Firms List. The list features the area’s most prominent law firms.

The list can be found here (subscription required).

No Arbitration if Invalid PAGA Waiver Cannot be Severed

On February 27, 2015, the California Court of Appeal determined that arbitration could not be compelled in Securitas Security Services USA, Inc. v. Superior Court (Edwards). Securitas’ arbitration agreement contained a waiver provision, waiving both class actions and representative Private Attorney General Act (PAGA) actions. In addition to waiving these claims, the waiver provision expressly stated that the waiver could not be severed from the agreement. In a separate paragraph, the Agreement contained a general severability clause, providing that “in the event any portion of this Agreement is deemed unenforceable, the remainder of this Agreement will be enforceable. If the Class Action Waiver is deemed to be unenforceable, [the parties] agree that this Agreement is otherwise silent as to any party’s ability to bring a class, collective, or representative action in arbitration.” Continue Reading

California Court of Appeal Rules PAGA Claims Must Be Stayed Pending Outcome of Individual Arbitration on Underlying Individual Wage and Hour Claims

On February 26, 2015, in Franco v. Arakelian Enterprises, Inc., Case No. B232583, the California Court of Appeal, Second Appellate District held that trial court proceedings on claims pursuant to the California Private Attorney General Act (“PAGA”) (Labor Code § 2698 et seq.) must be stayed pending individual arbitration of the underlying individual wage and hour claims (originally pled as classwide claims) pursuant to an arbitration agreement containing a classwide arbitration waiver.

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No Employer Liability If There is No Actionable Harassment or Discrimination, California Court Rules

An employer cannot be held liable for failure to prevent sexual harassment under the California Fair Employment and Housing Act (“FEHA”) if there is no actionable sexual harassment, the California Court of Appeal has ruled. Dickson v. Burke Williams, Inc., No. B253154 (Cal. Ct. App. Mar. 6, 2015). Likewise, a jury’s finding that an employer is not liable for sex discrimination precludes liability for failure to prevent discrimination.

Background

Domaniqueca Dickson, a massage therapist at a spa, sued her employer, Burke Williams, Inc. (“BWI”), for alleged sexual harassment by two customers. She asserted claims for sexual harassment, sexual discrimination, and the failure to prevent sexual harassment and sexual discrimination under the FEHA, among other things.

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Oakland’s New Law Raises the City’s Minimum Wage, Provides for Paid Sick Leave, and Addresses Hospitality Services Charges

In November 2014, Oakland voters passed Measure FF, which went into effect on March 2, 2015, and made changes to the City’s minimum wage, paid sick leave laws and hospitality service charges.

Minimum Wage Increase

Effective March 2, 2015, the minimum wage in Oakland was raised from $9.00/hour to $12.25/hour for any employee who performs at least two hours of work within Oakland in a workweek. This law applies to full-time, part-time, temporary and seasonal employees.

Paid Sick Leave

As of March 2, 2015, employers must pay paid sick leave for employees who were employed on or before that date. Employers are permitted to restrict paid sick leave for employees hired after March 2, 2015; employers can opt not to allow these employees to use any accrued paid sick leave until their 90th calendar day of employment.

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Removing Essential Job Functions Not Reasonable Disability Accommodation Under California Law, Court Rules

Affirming summary judgment in favor of an employer on an employee’s disability discrimination claims under the California Fair Employment and Housing Act (“FEHA”), the California Court of Appeal has ruled that the employer was not required to eliminate essential functions of a position as a reasonable accommodation. Nealy v. City of Santa Monica, No. B246634 (Cal. Ct. App. Feb. 13, 2015). The Court further held that reassigning the employee to a position for which he was not qualified and granting him an indefinite leave of absence until a suitable position became available also were not reasonable accommodations. As to the employee’s retaliation claim, the Court held that a request for a reasonable accommodation alone was insufficient to establish the employee engaged in protected activity. Continue Reading

Enforceability of PAGA Waivers in Arbitration Agreements – The Battle Continues

The battle over whether employees may waive the right to pursue claims under California’s Private Attorneys General Act (PAGA) in arbitration continues. The Supreme Court of the United States recently requested a response from ex-Bridgestone Retail Operations LLC employees to Bridgestone’s January 5, 2015 petition for a writ of certiorari challenging the California Supreme Court’s refusal to enforce an arbitration agreement waiving PAGA claims. Continue Reading

Reasonable Accommodation’s Mandate in Employment Statute Does Not Require Employer to Cut Essential Job Functions

On January 21, 2015, a California Appeals Court affirmed the trial court’s ruling in Nealy v. City of Santa Monica, 2015 Cal. App. LEXIS 139 (February 13, 2015) granting summary judgment for the City of Santa Monica (“City”) on claims of disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and retaliation by a City employee.   Continue Reading

The Amendments to the Heat Illness Prevention Plan

On February 20, 2015, the California Occupational Safety and Health Standards Board voted on new changes to the Heat Illness Prevention regulation. The Standards Board voted 5-1 to approve the proposed amended statute. Marley Heart, Executive Director of the Standards Board, requested the Office of Administrative Review to allow for an early effective date. The Office of Administrative Law is responsible for reviewing administrative regulations proposed by the Standards Board to ensure that they are compliant with the California’s Administrative Procedure Act. The Office will transmit this amendment to the Secretary of State for publishing in the California Code of Regulations. We expect that the new regulation will be rolled out at the beginning of the heat season, in May of this year.

Employers should promptly update their heat illness prevention plans and train their employees for compliance with the new regulations. What follows below is a quick summary of the amendment to help you revise your plan and get ready for this year’s heat season.

Potable Water Requirements

The heat illness regulation previously stated that employers had to provide employees with access to potable drinking water that was clean and maintained through individual dispensers, faucets, or drinking fountains. The Division of Occupational Safety and Health previously cited employers for not providing continuous water to employees and for failing to ensure that the employees have properly marked dispensable cups or bottles to obtain clean water. The regulation also provided that where the employer cannot otherwise continuously supply or replenish employees’ water (e.g. with a mobile crew that is located off-site), that it shall provide water in sufficient quantity at the beginning of the shift. The employer must provide each employee with a minimum of one quart of water per hour for the entire shift. The amendment now also states that the water must be fresh, pure, suitably cool, and provided free of charge to employees. Additionally, the water must be located as close as practicable to the areas where employees are working, unless the employer can demonstrate infeasibility.

Shade Requirements

Prior to the amendment, employers were obligated to provide shade to at least 25% of the employees on shade only when the temperature exceeded 85 degrees.

Now the amendment requires that the employer provide shade when the temperature exceeds 80 degrees and so that it can accommodate the total number of employees on recovery or rest periods. The employer must provide enough shade during meal breaks to accommodate the total number of employees that remain outside. In addition, the shaded area has to be located as close as practicable to the areas that employees are working.

Preventative Cool-Down Rest Periods

The heat illness regulation requires employers to allow and encourage employees to take a minimum of five-minutes for a cool-down rest period if they feel they needed to protect themselves from overheating. Now in addition to allowing and encouraging employees to take cool-down rest periods, employers are required to monitor and ask employees taking rest periods whether he or she is experiencing symptoms of heat illness. Employers are to encourage employees taking a rest period to remain in the shade. Employers are prohibited from ordering employees to work until signs or symptoms of heat illness have been abated.

High-Heat Procedures

Employers have to implement high-heat procedures when the temperature equals or exceeds 95 degrees Fahrenheit. Employers have to ensure that there is effective communication between supervisors and employees. Employers are also obligated to observe employees for alertness and signs or symptoms of heat illness.

In addition to these procedures, the amendment requires that employers assertively monitor employees by instituting: a one supervisor to twenty or fewer employee ratio, a mandatory buddy system, a regular communication through electronic device routine with each employee, or another effective means of communication. Employers are also obligated to designate one or more employees on each worksite as authorized individuals for emergency medical services. If there is no designee on shift, employers must instruct other employees to call for emergency services when required.

The amendment requires pre-shift meetings that must take place before the commencement of work on each shift during high heat conditions. The shift meetings should: review high heat procedures, encourage employees to drink plenty of water, and remind employees of their right to take a cool-down rest break when needed.

Agricultural employers now have additional requirements such as providing employees with ten minute cool down rest periods every two hours. The amendment also clarifies cool-down rest breaks and their impact on the mandatory meal and rest breaks required under the California Industrial Wage Orders and California Labor Code Section 226.7.

Emergency Preparedness Requirements

High-Heat emergency response preparedness requirements now must include: (1) an effective communication with employees by voice, observation, or electronic means; (2) an effective response with first aid measures; and (3) procedures for contacting emergency responders to help stricken workers.

Acclimatization

Employers are to assign supervisors to closely observe and monitor employees during a heat wave. A heat wave is defined as temperatures over 80 degrees Fahrenheit or anytime the temperature is ten degrees higher than the average high daily temperature in the preceding five days. Employers must closely monitor a new employee for the first 14 days of his or her employment in a high heat area.

Training

In addition to all of the previous training requirements, the amendment now specifically requires employers to train employees in: (1) the employer’s responsibility to provide water, shade, cool-down rests, and access to first aid; (2) the employees’ right to exercise their rights under this standard without retaliation; (3) first aid and emergency response procedures; and (4) concepts and methods of acclimatization.

Heat Illness Prevention Plan

The amendment increased the requirements of heat illness prevention plans. The employer must establish, implement, and maintain an effective heat illness prevention plan in both English and in any language understood by the majority of the employees. The plan must be made available to employees at the worksite and to representatives of the Division upon request. The Heat Illness Prevention Plan may be included as part of the employer’s Illness and Injury Prevention Program but must specifically include procedures for the provision of water and access to shade, high heat procedures, emergency response procedures, and acclimatization methods and procedures.

***

The voluminous changes to the heat regulation are sure to create a large wave of citations this spring and summer. There are tips that you can follow to protect your companies.

10 Tips for Compliance:

  1. Review your heat illness and prevention plan and amend it so that it reflects the new requirements including potable water requirements, shade requirements, preventative cool-down rest periods, high heat procedures, acclimation, and training policies and procedures.
  2. Review your employee handbook for cool-down rest periods and make sure it is consistent with the new regulations.
  3. Review or create new policies and procedures for monitoring employees taking cool-down rest periods.
  4. Review or create new plans to monitor employees in high heat conditions by instituting a one supervisor to twenty or fewer employees ratio, a mandatory buddy system, or a consistent practice for supervisors to check in with employees.
  5. Review your emergency preparedness plan and make sure it has a designed individual who can call for emergency services when needed.
  6. Make sure your emergency preparedness plan includes an effective communication with employees by voice, observation, or electronic means, an effective response with first aid measures, and procedures for contacting emergency responders to help stricken workers.
  7. Closely monitor temperature changes to ensure that you are following the amendment’s acclimatization requirements.
  8. Conduct a site inspection at each of your California facilities to ensure that shade and water is being provided as close as practicable to the areas employees are working.
  9. Train your employees and supervisors on the revised heat illness plan and procedures, cool-down rest breaks, and monitoring procedures. Retrain your employees on how to prevent heat illness.
  10. Call your attorney for advice on how to revise your plan and procedures.

You can read the text of the amendment at https://www.dir.ca.gov/oshsb/documents/Heat_illness_prevention_txtbrdconsider.pdf