Recent Amendments to the California Fair Employment and Housing Act

Expansion of Classifications of Employees Protected From Discrimination

California’s Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against employees on the basis of the following protected characteristics, a perception that employees have such a protected characteristic (even if they do not) or are perceived to be associated with a person with such a protected characteristic (even if they are not):

Age (40 or over)	National Origin (including language use restrictions)
Color	Sex (gender)
Race	Pregnancy or related condition
Sexual orientation - (homosexual, heterosexual, bisexual)	Mental or physical disability
Medical condition (including cancer, genetic characteristics; pre-disposition to disease)	Marital Status or Registered Domestic Partnership Status
Ancestry	Denial of a Family and Medical Care or Pregnancy Disability Leave

Legislation that became effective on January 1, 2012, has added the following two new characteristics to this list:

• Gender Expression.  FEHA has been expanded to include in the definition of “gender” both gender identity, and now, gender expression.  “Gender expression” is defined as “a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth.”  The new law also amends California law relating to dress codes to include that an employee must be allowed to dress consistently with both the employee’s gender identity and gender expression.
• Genetic Information.  FEHA has also been amended to prohibit discrimination based on genetic information.  The law defines “genetic information” as information about an individual’s genetic tests, genetic tests of an individual’s family members, and the manifestation of a disease or disorders in an individual’s family members.  Genetic information includes any request for or receipt of genetic services or clinical research that includes genetic services, by an individual or any family member of the individual.

Expansion of the Fair Employment and Housing Act Protections to Employees on Pregnancy Disability Leave to Include Continued Health Insurance Coverage

Pursuant to FEHA, employers with five or more full-time or part-time employees are required to provide up to four months (the equivalent of 88 working days for full-time employees) of pregnancy disability leave for employees who are disabled by pregnancy, childbirth or a related medical condition.  Prior to January 1, 2012, employees on a pregnancy disability leave were entitled to continued employer-paid health benefits only if their employer provided such benefits to employees with other temporary disabilities.  This is no longer the case.  Under the expanded legislation, employers who currently pay for health coverage under a group plan (whether they provide medical, dental and/or vision coverage) must continue to maintain an employee’s coverage during a pregnancy disability leave as if the employee were actively working.  Thus, if the employee contributed to the group plan premium before taking a pregnancy disability leave, she must continue to pay her portion while on leave.  The law is not clear about whether an employer may cancel coverage for non-payment.

It is important to note that this coverage is available to California employees who are actually disabled by their pregnancy and childbirth.  However, there is no length of service requirement.  Rather, pregnant employees are eligible for these protections on their first day of employment.  Furthermore, while some employers incorrectly assume that employees have an automatic right to four calendar months of leave in California, the duration of the pregnancy disability leave will depend on the employee’s ability to establish, through documentation from a healthcare provider, the medical need for the leave.  In addition, the four calendar months is based on the employee’s schedule prior to taking a leave.  For example, if an employee worked three days a week, the employee’s protected time off would be based on a three day workweek.

Because FEHA requires that employers provide pregnant women with the same benefits and privileges of employment as employees with other temporary disabilities, if an employer has provided an employee disabled for another medical condition with greater benefits than are afforded by this new law, the employer must match those benefits for all of its employees on disability leave due to pregnancy or a related medical condition.

If an employer has paid for health insurance pursuant to this new law and the employee decides not to return to work at the end of her pregnancy-related disability for reasons other than a continuing disability or other circumstances beyond her control, or because she is entitled to further leave pursuant to the California Family Rights Act, the employer is entitled to recover the premiums paid.  However, as a practical matter, the only method for doing so may be small claims court unless the employee voluntarily agrees to make repayments of insurance premiums.

In order to comply with these new laws, employers should ensure that their Employee Handbooks are updated and train their benefit coordinators to properly handle continuation of benefits while employees are on PDL leave.

Questions?

Nancy A. Bertrando chairs Greenberg Glusker’s Employment Law Group. She exclusively represents employers in all aspects of employment law and employer relations. She can be reached at 310-201-7483 or [email protected].