Originally published for HR California
In a pro-employer decision that provides guidance in responding to employees’ request for accommodations, a California court aptly noted that such requests need not excuse an employee from performing the essential functions of their position (Lopez v. La Casa de Las Madres, 89 Cal.App.5th 365 (2023)).
In this case, a former employee filed a complaint against her previous employer alleging nine causes of action related to what she deemed was unlawful pregnancy discrimination after the shelter refused to provide two accommodations suggested by her doctor, one of which was a “flexible schedule that allowed her to leave work to avoid stress or anxiety.”
In a case of first impression, the First Appellate District set forth the elements of a pregnancy discrimination claim under California Government Code section 12945, rather than section 12940. The court held that such a cause of action requires proof that:
- The plaintiff had a condition related to pregnancy, childbirth or a related medical condition;
- The plaintiff requested accommodation of this condition with her health care provider’s advice;
- The plaintiff’s employer refused to provide a reasonable accommodation; and
- With the reasonable accommodation, the plaintiff could have performed the job’s essential functions.
Ultimately, the Lopez court held that the burden was properly placed on the employee to prove that she had a condition related to pregnancy and was, with reasonable accommodation, able to perform the essential functions of her job — which she failed to do. The court further noted that a modified work schedule “may” be a reasonable accommodation in an appropriate case, but that did not make it a reasonable accommodation as a matter of law in this case.
Facts of the Case
In the case, the employee, Gabriela Lopez, worked since 2014 as the residential shelter manager for La Casa de Las Madres (La Casa), a non-profit organization that provides services to women and children who are victims of domestic violence. Her duties included supervising approximately 10 employees, and she was expected to work 30 hours a week at the shelter, plus 10 hours on administrative tasks. The shelter manager handles emergency situations and is responsible for delivering “domestic-violence services 24/7,” so is expected to always be on call. Evidence was presented that all shelter staff received counseling and training due to “secondary trauma” of the work, and La Casa’s trial witnesses all confirmed the stressful nature of working at the shelter.
In April 2016, Lopez notified La Casa of her pregnancy and that her expected due date was in September. On August 16, 2016, Lopez began her pregnancy disability leave pursuant to the advice of her doctor. Her expected return-to-work date was November 8. But after giving birth, Lopez experienced complications. She provided La Casa with periodic certifications relating to her condition and her leave was extended to December 16, concluding her four-month pregnancy disability leave. While Lopez was on leave, her shelter-manager duties were covered by several people, including La Casa’s executive director and Lopez’s direct supervisor. Others covered Lopez’s administrative duties, but testimony confirmed that “this ‘pitching in’ coverage was not sustainable indefinitely.”
Thereafter, La Casa received a work-status report from Kaiser, which stated that Lopez should not work until January 14, 2017; La Casa treated this as a request for accommodation under the Fair Employment and Housing Act (FEHA).
Over the course of the following month, Lopez submitted three versions of a form questionnaire entitled “Instructions to Health Care Provider,” all signed by a social worker at Kaiser specializing in mental health. In one form, this health care provider (HCP) reported that Lopez had a “moderate-severe” disability (but did not indicate that it was pregnancy related), and it affected her ability to perform her job by limiting her from engaging in activities that are “‘stress producing or require sustained attention,’ and those that ‘require the making of important or significant decisions.’” The HCP stated that this disability necessitated two modifications to Lopez‘s work duties:
- Time off to allow patient to continue mental health treatment, both in groups and individual therapy; and
- Flexible/shortened workdays “if patient finds nature of the work or stress of the work overwhelming and triggering of severe anxiety/depressive symptoms.”
La Casa determined that it could provide time off for therapy, but it could neither function indefinitely without a shelter manager nor ensure that the job be “performed without making significant decisions and facing stressful situations at unpredictable times.”
La Casa informed Lopez they were unable to accommodate the limitations proposed, but they offered to extend her leave until January 14 and, upon her return to work, assign her to a “Data Entry Specialist position” that had flexible hours and didn’t involve stressful tasks as a “temporary accommodation.” This was all with the expectation that Lopez would return to her shelter management role possibly at a later date.
Lopez rejected this offer, but subsequent medical certifications from her HCP were incomplete — and in one, her HCP acknowledged not knowing whether Lopez continued to suffer from a disability. Lopez didn’t respond to La Casa’s further efforts to communicate with her, so on February 6, 2017, La Casa sent a letter to Lopez stating that La Casa considered Lopez to have “elected to discontinue her employment.”
California Law Related to Pregnancy Discrimination
Pregnancy discrimination is an unlawful employment practice in California under the FEHA, which prohibits discrimination on the basis of sex, disability and pregnancy-related conditions. Discrimination based on the fact that a person is pregnant, has given birth, is breastfeeding or has a related medical condition is a form of sex discrimination, prohibited by California Government Code section 12940(a). Discrimination based on the fact that a person suffers from pregnancy-related depression is a form of disability discrimination, which is also prohibited by the FEHA.
Importantly, the Lopez court recognized that California Government Code section 12945 affords important protections to employees affected by pregnancy, over and above the protections of Government Code section 12940, including a right to:
- Up to four months of pregnancy disability leave;
- Temporary transfer to a less strenuous job if such a transfer can be reasonably accommodated; and
- Reasonable accommodation for a condition associated with pregnancy or childbirth, even when this condition does not rise to the level of a formally recognized disability (in this regard, section 12945(a)(3)(A)) is more broad than section 12940(m), which addresses only an employer’s obligation to accommodate “disability”).
None of these provisions, however, entitle an employee to a job they cannot perform.
Ultimately, the court held that Lopez failed to carry her burden of proof that after her pregnancy disability leave ended, she had a condition relating to pregnancy, because:
- The first form from Lopez’s HCP didn’t indicate that the mental health-related disability was related to pregnancy.
- In the last (incomplete) form signed by the HCP on Lopez’s behalf, the HCP acknowledged not knowing whether Lopez continued to suffer from a disability.
- Lopez didn’t produce any medical evidence pertaining to her diagnosis. She testified that she felt sad after the birth of her daughter, but other evidence showed that she was depressed before she went on disability leave.
Additionally, the evidence supported an inference that Lopez’s apparent depression was pregnancy related, but Lopez failed to prove “that she could perform the essential functions of her job and that she was denied a reasonable accommodation.”
Court Analyzes Requested Accommodations, Employer Response
The court went to great lengths to analyze the requested accommodations and how the employer responded.
The first accommodation of four months of pregnancy disability leave was undisputedly granted by the employer.
For the accommodation requesting an additional, finite period of leave (Lopez contended that La Casa could have “easily” left her position vacant or granted her an additional period of leave to “allow her to recuperate”), the court noted there was no evidence to show that La Casa denied such a request.
The accommodation at issue was “flexible/shortened workdays” so Lopez could leave work if she experienced stress or anxiety — a request stemming from the HCP’s recommendation that Lopez not engage in activities that were stressful, or that required sustained attention or that she make important or significant decisions.
The court ruled that a “flexible or shortened workday” if Lopez found her work stressful was not a reasonable accommodation, which it based on evidence that La Casa had discussed options in an attempt to enable accommodation. One option was hiring a “‘shadow’ shelter manager” to step in if Lopez had to leave work due to stress or anxiety, which La Casa deemed “unworkable” for multiple reasons, including the cost of paying two people to do the same job and the confusion for staff of having two managers. As such, the court ruled that Lopez failed to prove that she was denied a reasonable accommodation.
Key Takeaways for Employers
The ruling in this case highlights some important points for employers.
- Employees are not entitled to a job they cannot perform. Under the FEHA, employers aren’t prohibited from discharging an employee with a physical or mental disability or medical condition who, even with a reasonable accommodation, is unable to either perform their essential duties or perform those duties without endangering their own health or safety or that of others.
- A modified work schedule “may” be a reasonable accommodation in an appropriate case. But, as the court noted here, it does not make it a reasonable accommodation as a matter of law, as in this case.
- Employers must diligently review and follow-up on medical certifications and requests for certification during the interactive process. A requested accommodation’s reasonableness is a factual determination made on a case-by-case basis that considers, under the totality of the circumstances, the employee’s medical needs, duration of the needed accommodation, employer’s legally permissible past and current practices, and other such factors. In this case, the court truly scrutinized each HCP certification and how the employer responded, highlighting just how imperative it is for employers to require employees provide the documentation detailing what accommodation is expressly sought.
- Accurate and detailed job descriptions can make the difference. Here, the court gave great weight to the fact that the shelter manager job required anytime availability to make important decisions and in an inherently stressful environment — so an accommodation permitting Lopez to leave work whenever she experienced stress or anxiety was not reasonable. Without detailed job descriptions, it will be difficult to determine whether specific accommodations sought by your employees are reasonable.
