Chelsea D. Spuck

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We all know that agency regulations can be informative guidance but, by their nature, extremely detailed and—let’s face it—dry as toast.  The new disability regulations, which went into effect on December 30, 2012, are no exception.  

The regulations seek to “clarify” statutory definitions and employers’ obligations to an employee with an actual or perceived disability.  However, these “clarifications” expand employers burdens under California law.

Expanded Definition Of “Disability” Including: 

  •     post-traumatic stress disorder
  •     autism spectrum
  •     palsy
  •     heart disease
  •     multiple sclerosis
  •     seizure disorder
  •     clinical depression
  •     obsessive compulsive disorder
  •     schizophrenia
  •     bipolar disorder 

Before the regulations:  Whether these conditions met the definition of “disability” under California law was subject to debate, as many other conditions. 

After the regulations:  Not much to debate.  The new regulations specifically say that the analysis as to whether a condition is a disability should not be extensive, regardless if it is a condition explicitly recognized by regulations as such. 

Expanded Definition of “Major Life Activities”:  The definition of “major life activities” now includes sleeping, thinking, and interacting with others (which implies that social disorders will now also be considered disabilities).

How To Determine When Functions Are Essential?  The regulations provide additional guidance as to when a job function is essential.  Updated and accurate job descriptions are crucial and are now actually required by the regulations.  Performance evaluations will also assist in determining whether a function is essential.   

The Growing List Of Reasonable Accommodations:  Similar to the new pregnancy disability regulations that we discussed here and here, the disability regulations include a broader list of reasonable accommodations.  


Continue Reading The FEHC’s Last Stand: Commission Rides Off Into The Sunset After Wrangling The New Disability Regulations

Continuing in this series on new California regs, this post calls out three additional areas where the pregnancy disability regulations have changed as of January 1, 2013.  Last time, we talked about expanded definitions, time periods for leave, and required notices.  This time, we are talking reinstatement, interplay with other leaves and reasonable accommodation.  For a deeper dive, you’ll have …
Continue Reading What To Expect When Your Employees Are Expecting: The New Pregnancy Disability Regulations (Part Two)

After almost two years of public comment and editing, the California Office of Administrative Law finally settled on a crop of regulations that substantially alter the way Pregnancy Disability Leaves (PDL) are administered in California.  The regulations (effective December 30, 2012) have created additional burdens for employers that many may find onerous:    

Expanded Definition:  The definition of “disabled by …
Continue Reading What To Expect When Your Employees Are Expecting: The New Pregnancy Disability Leave Regulations Are Not Necessarily A Bundle Of Joy For Employers (Part One)

Oh, L’Amour.  As Valentine’s Day approaches and the flowers and cookie bouquet deliveries start roaming the hallways, it is time for us to turn our sights on one of the most innocent-seeming, yet problematic, aspects of employment law:  the workplace romance. 

Despite the fact that quid pro quo harassment claims continue to decline in favor of the much more popular hostile work environment claim, we must recognize that some entirely consensual workplace relationships go bad.  And the result is a claim that “I only did that because I didn’t feel like I had a choice” or “I wouldn’t have dated her if she weren’t the boss.”  This type of situation is enough to turn any cupid into a devil. 

Work romance statistics:  With work hours longer, and more women than men entering the workplace, an estimated 60-75% of employees have entered into an office romance at one time or another.  Of those, 20% claimed to have been dating a boss or supervisor.  Many of us know someone who met his or her significant other at work.  However, despite the commonplace of workplace romance, it is shocking that almost 75% of employers have no policy on office romance at all.

So how do you keep those little flings from getting flung into the courtroom?  Contrary to what you might believe, a policy that prohibits all dating in the workplace is rarely appropriate, unless very specific conflict issues have arisen as a result of workplace relationships.  In fact, policies forbidding all dating have backfired on many employers, creating an environment where employees seem to enjoy breaking the policy because of the risk involved and lose respect for other management policies.  In addition, California employers must stay aware of the broadly worded provisions of the California Labor Code that forbid employers from discriminating against an employee or applicant for lawful off-premises conduct during nonworking hours. 

What about a “love contract”?  The idea of a “contract” may seem distasteful when it comes to romance.  After all, there is nothing romantic about sitting down with a human resources representative, copping to a relationship with a co-worker or supervisor, and committing the nature of that relationship to paper.  However, as an employer, failing to do this could lead to a sticky situation in the event the relationship fails and no one bothered to document it in its honeymoon phase.

What is a love contract?  A love contract is essentially an agreement between two consenting adults to clarify that the relationship itself is, in fact, voluntary and legitimate and not the product of a subordinate being forced into something untoward because of the imbalance of power between him or her and his or her supervisor. 

It is intended to capture the intentions when the relationship is working—so that when it isn’t—a party will have a significantly harder time demonstrating this was part of a sexually predatory scheme on the part of a randy colleague.  Both parties acknowledge up front that’s not the case.  At this time, there hasn’t been a case where the validity or coercive nature of a love contract has really been challenged, but regardless of the result, this type of agreement will serve as a powerful evidentiary tool and, at the outset, a reminder to the employees that they need to behave appropriately in the workplace.

When to use a love contract:  To decide whether a love contract is appropriate, review the following factors:
Continue Reading The Love Contract: When Cupid Aims His Bow At Your Co-Worker