“Family caregiver status” means “being a person who provides direct care to a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or, with respect to an existing employee, any individual previously identified by the employee as a “designated person” under Section 12945.2.”
Exposure for Employers
Employers should be aware that they have increased exposure to potential litigation under the FEHA if an employee claims that an adverse employment action was related to the employee’s family caregiver status.
If an employer is found to have engaged in an employment practice that is unlawful under the FEHA, the penalties include:
- Actual damages for injuries or losses that the complainant suffered, including loss of back pay and front pay for lost future wages where reinstatement isn’t appropriate;
- Compensatory damages for pain, suffering, humiliation, and embarrassment;
- Attorneys’ fees and court costs; as well as
- Punitive damages.
Issues with the Bill
As the bill is written, it’s unclear how the definitions in this bill will be applied. For example, a “family caregiver” could be any employee who gives direct care to a family member as listed; however, this also could mean any person of their choosing. As such, the definition could apply to any designated person, such as a friend or neighbor.
In addition, the bill defines a family caregiver as someone who provides “direct care” to a family member. However, there is no indication what the term “direct care” means. Without further clarification, questions may arise from employers and employees as to what constitutes family caregiving.
What is Special Accommodation?
The bill would create a de facto accommodation requirement, but this also comes with some confusion.
The FEHA uses the term “reasonable accommodation” and defines the process by which employers must initiate an “interactive process” if an applicant or employee asks for reasonable accommodation for a physical or mental disability. Further, the employer must offer to initiate an interactive process when it becomes aware of the possible need for an accommodation.
Reasonable accommodation can include, but isn’t limited to, the following:
- A change of job duties;
- A change of work schedules;
- Giving leave for medical care;
- Relocation of the employee’s work area; and
- Providing mechanical or electrical aids.
This process under the current law requires an individualized assessment of both the job and the specific physical or mental limitations of the person that are directly related to the need for reasonable accommodation.
In contrast, however, AB 524 introduces a new undefined term: “special accommodation.” This may be an issue because “special accommodation” isn’t currently used in the FEHA. As a result, judges may think the Legislature meant something other reasonable accommodation.
The bill was presented to the governor for signature last week. It is unknown whether Governor Newsom will veto AB 524 which has been referred to as the “New Job Killer” bill due to the increased exposure to employers from an anticipated flood of employment related lawsuits.