On Monday, September 11, 2023, the California legislature sent SB731 to the Governor’s Office which will amend the California Fair Employment and Housing Act (FEHA) to address teleworking policies in the post-pandemic workplace. If signed by Governor Gavin Newsom, the bill will make it an unlawful employment practice “to fail to provide to an employee who is working from home at least 30 calendar days’ advance notice before requiring the employee to return to work in person.”
An employee shall not be required to return to work in person until the employer provides notice which at a minimum must state:
“You have the right to ask your employer to allow you to continue working remotely as an accommodation if you have a disability. Your employer is required to engage in a timely, good faith, interactive process to determine if there are effective reasonable accommodations for your disability, including working remotely. If you are able to perform all of your essential job functions while working remotely, your employer must grant your request unless it would create an undue hardship for your employer, an alternative reasonable accommodation is available, or you do not meet the definition of disability under the law. You can learn more about your rights at https://calcivilrights.ca.gov/accommodation/.”
It is important to note that the required notice under the proposed law does not (1) to limit an employees right to a work from home reasonable accommodation that preexisted the notice, (2) require an employee working remotely as reasonable accommodation to reenter the interactive process following the notice, and (3) allow an employer to remove or change an existing reasonable accommodation.
The new law may result in covered employers fielding requests for remote work as a reasonable accommodation, not only from employees with qualifying disabilities but also from employees who wish to continue remote work for the flexibility that it provides. These requests will trigger the qualified employer’s obligation to engage in the interactive process to determine whether remote work can be accommodated. Employers need to consider all requests for remote work as failure to provide reasonable accommodation or engage in the interactive process could result in liability.
Employers now should take the opportunity to fully review and update their workplace disability accommodation and teleworking policies. Kronick attorneys can provide advice and counsel on drafting new policies, assist HR professionals in responding to accommodation requests, guide businesses through the interactive process, and provide representation in potential suits.
Questions
If you have any questions regarding this Legal Alert, please contact the following attorneys from our office or the attorney with whom you typically consult.
Alec Tyra
atyra@kmtg.com | 916.321.4293
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