The Fair Employment and Housing Council’s amendments to its Fair Employment and Housing Act (“FEHA”) Regulations take effect April 1, 2016.
The amended regulations cover a wide range of topics. Listed below are several key changes:
- Employers with five or more employees, those covered by California’s pregnancy disability leave laws, are required to replace the current Pregnancy Disability Leave Notice with an updated notice. The revised notice will be published on the Department of Fair Employment and Housing website. 2 C.C.R. § 11051.
- If an employee handbook describes other types of reasonable accommodation, transfers, or temporary disability leaves available to employees, the handbook must also describe reasonable accommodation, transfer, and pregnancy disability leave. Previously, an employer was merely “encouraged” to include a pregnancy disability leave policy. 2 C.C.R. § 11049(d)(3).
- The prohibition against discrimination on the basis of sex protects all individuals from sex discrimination—not just females. 2 C.C.R. § 11029. Gender identity, gender expression, and transgender status are expressly protected. Id; 2 C.C.R. § 11035.
- Employees are eligible for up to 4 months of pregnancy disability leave per pregnancy. “Four months” is calculated as the number of days or hours the employee would normally work within four calendar months (one-third of a year, or 17 1/3 weeks). This amendment clarifies existing law and eliminates the need for complex calculations.
- Employers are prohibited from discriminating against an applicant or employee who holds or presents a driver’s license issued under Vehicle Code section 12801.9, issued to persons meeting all other qualifications for licensure except lawful presence in the United States. 2 C.C.R. § 11028.
- Employers are required to have a written harassment, discrimination, and retaliation prevention policy. 2 C.C.R. § 11023. The policy must be distributed to all employees with acknowledgement that the employee has received and understands the policy. In addition, the policy must:
- Be in writing.
- List all protected categories covered under FEHA: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age for individuals over 40 years of age, military and veteran status, and sexual orientation.
- Indicate that coworkers and third parties, as well as supervisors and managers, are prohibited from engaging in conduct prohibited by FEHA.
- Create a complaint process to ensure that complaints are (i) designated confidential, to the extent possible; (ii) responded to in a timely fashion; (iii) investigated in a timely and impartial manner by qualified personnel; (iv) documented and tracked for reasonable progress; (v) provided appropriate options for remedial options and resolutions; and (vi) closed in a timely manner.
- Provide a complaint mechanism whereby an employee is not required to complain directly to his or her immediate supervisor.
- Instruct supervisors to report any complaints to a designated company representative.
- Indicate that all complaints will be investigated in a fair, timely, and thorough manner.
- Not promise confidentiality, but indicate that confidentiality will be kept to the extent possible.
- State that appropriate remedial measures will be taken if misconduct is found.
- Make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in a workplace investigation.
- Be translated into languages spoken by at least 10 percent of an employer’s workforce.
- The requirements for sexual harassment training and education have been updated with new documentation and recordkeeping requirements and new content requirements. Training must now address abusive conduct, a supervisor’s reporting obligations, and steps necessary to take appropriate remedial measures to correct harassing behavior. 2 C.C.R. § 11024.
Employers should consult with counsel and carefully review their existing company policies to ensure compliance with the amended regulations.