GOVERNOR'S VETO

GV Bill Id:AB 1906

Author:(Salas)

As Enrolled Ver:September 4, 2020

2/3 vote

SUMMARY:

Requires, on or before January 1, 2021, the California Department of Corrections (CDCR), in consultation with the California Department of Human Resources (CalHR), to establish an alternate, light duty work assignment policy for pregnant peace officers, among other provisions.

The Senate Amendments:

1. Remove the requirements that the CDCR complete the policy by May 1, 2021; provide it to the CalHR, and the CDCR adopt and implement it on or before July 1, 2021, and instead, require the CDCR, in consultation with the CalHR, to establish the prescribed policy on or before January 1, 2021.
2. Require the CDCR to carefully weigh any request for an alternate, light duty assignment; to make every effort to accommodate each employee's individual needs, and to consider a combination of options in reaching a final determination, which must be made based on the employee's medical limitations or restrictions, classification, and the needs of the department.
3. Require the department to provide a publicly available report that contains the reasons for the denial of a request for an alternate, light-duty assignment; however, personally identifying information relating to the peace officer must not be included in the report.
4. Require that all denials, including the denial of an initial request that was later modified or granted, and the denial of an extension of the duration of time during which a pregnant peace officer must be permitted to perform an alternate, light duty assignment, to be submitted within five business days for a second level review by the deputy director, or their designee, of CDCR's facility support for the Division of Adult Institutions, who must receive input from the CDCR's Office of Employee Health and Wellness.
5. Include a requirement that the pregnant peace officer is responsible for requesting an alternate, light duty assignment, and submitting documentation from their health care provider that sets forth any restrictions or limitations that support placement in an alternate, light duty assignment.
6. Maintain the requirement that pregnant peace officers must continue to receive normal promotional opportunities and pay increases to the extent and under the same conditions afforded prior to performing alternate light duty assignments.
7. Change the term "correctional" officer to "peace" officer, where applicable.

Governor's Veto Message:

I am returning Assembly Bill 1906 without my signature.

This bill would require the Department of Corrections and Rehabilitation (CDCR), in consultation with the Department of Human Resources, to establish a policy permitting a pregnant peace officer to perform alternate, light duty assignments, as specified, and would require the policy to include specified elements.

CDCR is already implementing a policy allowing staff with medical limitations, including those related to pregnancy, to request light-duty assignments. Because this bill is duplicative of existing efforts, I am unable to sign it.

COMMENTS:

The history of the CDCR to maintain a reasonably flexible policy, if any, that would ensure equitable treatment of pregnant peace officers, their safety, and the safety of their unborn children is not entirely positive.

Unfortunately, only following significant concerns previously expressed by these employees, substantial physical, emotional and psychological injury to some of them, including the loss of life of an unborn child following a workplace incident that likely could have been avoided, litigation, media coverage, and introduction of this legislative proposal, has a modicum of prudence prevailed upon the CDCR's decision-making concerning this matter.

As the CDCR currently works to implement a policy and was recently appropriated monies in the Budget Act for these purposes, given the CDCR's prior history of failure to consistently provide what many naturally would consider inherently necessary safety and other protection protocols for these employees relating to this matter, it is advised that the Legislature closely monitor this progress and consider additional legislative action in the future, if necessary.

According to the Author:

"The CDCR changed its policy in 2015 to eliminate light duty assignments for pregnant correctional officers. Prior to this policy change, [the] CDCR allowed pregnant correctional officers to take light-duty assignments; however, under the policy adopted in 2015, pregnant correctional officers now are forced to choose between their job and the health and safety of their unborn child. In one tragic example after [the] CDCR's 2015 policy change, a pregnant correctional officer was denied a light-duty assignment and she tragically lost her baby while responding to an inmate altercation. This policy is discriminatory to female correctional officers and underscores the need to improve workplace equity and safety for pregnant correctional officers.

"This bill would provide greater workplace equity and safety for pregnant correctional officers by requiring [the] CalHR, in cooperation with [the] CDCR, to establish a policy that provides alternate, light-duty assignments while ensuring that the pregnant correctional officer remains in their current job classification and receives normal promotional opportunities and pay increases. This bill would align [the] CDCR's policy regarding pregnant correctional officers with its pre-2015 policy change and with all other major law enforcement agencies to prevent female correctional officers from being forced to choose between their job and their unborn child."

Arguments in Support:

The California Employment Lawyers Association states that, "[p]rior to 2015, [the] CDCR maintained a legally compliant policy for its pregnant correctional officers under which it engaged in an individualized interactive process to reasonably accommodate temporary periods of disability due to pregnancies. This included modified "light duty" positions with limited inmate contact when warranted. In 2015, [the] CDCR abruptly abandoned this policy and parted ways with the pregnancy accommodation policies of all major law enforcement agencies including the Federal Bureau of Prisons. In its place, [the] CDCR implemented a rigid, one-size-fits-all policy that has forced female correctional officers to choose between their job and the health and safety of their unborn child.

"Assembly Bill 1906 would force [the] CDCR to come into compliance with the law and would provide greater workplace equity and safety for pregnant correctional officers. Importantly, this bill also provides that, pursuant to existing law, pregnant correctional officer must remain in their current job classification and receive normal promotional opportunities and pay increases."

Arguments in Opposition:

None on file.

FISCAL COMMENTS:

According to the Senate Appropriations Committee, this bill would result in ongoing personnel costs to [the] CDCR, such as for overtime. The magnitude of these costs would likely be in the millions of dollars annually; the enacted 2020-21 budget provides $16.7 million over two years that could be used for this bill's purposes. Additionally, [the] CalHR indicates that it would incur minor and absorbable costs to implement this bill's new staffing policy.

VOTES:

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 7-0-0

YES: Rodriguez, Voepel, Cooley, Cooper, Fong, O'Donnell, Reyes

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas, Voepel

ASSEMBLY FLOOR: 77-0-2

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Muratsuchi, Quirk

SENATE FLOOR: 39-0-1

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Melendez, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

ABS, ABST OR NV: Jones

ASSEMBLY FLOOR: 76-0-3

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Flora, Fong, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Eggman, Frazier, Voepel

UPDATED:

VERSION: September 4, 2020

CONSULTANT: Michael Bolden / P. E. & R. / (916) 319-3957 FN: 0003719

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1906

Author:(Salas)

As Amended Ver:August 25, 2020

Majority vote

SUMMARY:

Requires, on or before January 1, 2021, the California Department of Corrections (CDCR), in consultation with the California Department of Human Resources (CalHR), to establish an alternate, light duty work assignment policy for pregnant peace officers, among other provisions.

The Senate Amendments:

1. Remove the requirements that the CDCR complete the policy by May 1, 2021; provide it to the CalHR, and the CDCR adopt and implement it on or before July 1, 2021, and instead, require the CDCR, in consultation with the CalHR, to establish the prescribed policy on or before January 1, 2021.
2. Require the CDCR to carefully weigh any request for an alternate, light duty assignment; to make every effort to accommodate each employee's individual needs, and to consider a combination of options in reaching a final determination, which must be made based on the employee's medical limitations or restrictions, classification, and the needs of the department.
3. Require the department to provide a publicly available report that contains the reasons for the denial of a request for an alternate, light-duty assignment; however, personally identifying information relating to the peace officer must not be included in the report.
4. Require that all denials, including the denial of an initial request that was later modified or granted, and the denial of an extension of the duration of time during which a pregnant peace officer must be permitted to perform an alternate, light duty assignment, to be submitted within five business days for a second level review by the deputy director, or their designee, of CDCR's facility support for the Division of Adult Institutions, who must receive input from the CDCR's Office of Employee Health and Wellness.
5. Include a requirement that the pregnant peace officer is responsible for requesting an alternate, light duty assignment, and submitting documentation from their health care provider that sets forth any restrictions or limitations that support placement in an alternate, light duty assignment.
6. Maintain the requirement that pregnant peace officers must continue to receive normal promotional opportunities and pay increases to the extent and under the same conditions afforded prior to performing alternate light duty assignments.
7. Change the term "correctional" officer to "peace" officer, where applicable.

COMMENTS:

The history of the CDCR to maintain a reasonably flexible policy, if any, that would ensure equitable treatment of pregnant peace officers, their safety, and the safety of their unborn children is not entirely positive.

Unfortunately, only following significant concerns previously expressed by these employees, substantial physical, emotional and psychological injury to some of them, including the loss of life of an unborn child following a workplace incident that likely could have been avoided, litigation, media coverage, and introduction of this legislative proposal, has a modicum of prudence prevailed upon the CDCR's decision-making concerning this matter.

As the CDCR currently works to implement a policy and was recently appropriated monies in the Budget Act for these purposes, given the CDCR's prior history of failure to consistently provide what many naturally would consider inherently necessary safety and other protection protocols for these employees relating to this matter, it is advised that the Legislature closely monitor this progress and consider additional legislative action in the future, if necessary.

According to the Author:

"The CDCR changed its policy in 2015 to eliminate light duty assignments for pregnant correctional officers. Prior to this policy change, [the] CDCR allowed pregnant correctional officers to take light-duty assignments; however, under the policy adopted in 2015, pregnant correctional officers now are forced to choose between their job and the health and safety of their unborn child. In one tragic example after [the] CDCR's 2015 policy change, a pregnant correctional officer was denied a light-duty assignment and she tragically lost her baby while responding to an inmate altercation. This policy is discriminatory to female correctional officers and underscores the need to improve workplace equity and safety for pregnant correctional officers.

"This bill would provide greater workplace equity and safety for pregnant correctional officers by requiring [the] CalHR, in cooperation with [the] CDCR, to establish a policy that provides alternate, light-duty assignments while ensuring that the pregnant correctional officer remains in their current job classification and receives normal promotional opportunities and pay increases. This bill would align [the] CDCR's policy regarding pregnant correctional officers with its pre-2015 policy change and with all other major law enforcement agencies to prevent female correctional officers from being forced to choose between their job and their unborn child."

Arguments in Support:

The California Employment Lawyers Association states that, "[p]rior to 2015, [the] CDCR maintained a legally compliant policy for its pregnant correctional officers under which it engaged in an individualized interactive process to reasonably accommodate temporary periods of disability due to pregnancies. This included modified "light duty" positions with limited inmate contact when warranted. In 2015, [the] CDCR abruptly abandoned this policy and parted ways with the pregnancy accommodation policies of all major law enforcement agencies including the Federal Bureau of Prisons. In its place, [the] CDCR implemented a rigid, one-size-fits-all policy that has forced female correctional officers to choose between their job and the health and safety of their unborn child.

"Assembly Bill 1906 would force [the] CDCR to come into compliance with the law and would provide greater workplace equity and safety for pregnant correctional officers. Importantly, this bill also provides that, pursuant to existing law, pregnant correctional officer must remain in their current job classification and receive normal promotional opportunities and pay increases."

Arguments in Opposition:

None on file.

FISCAL COMMENTS:

According to the Senate Appropriations Committee, this bill would result in ongoing personnel costs to [the] CDCR, such as for overtime. The magnitude of these costs would likely be in the millions of dollars annually; the enacted 2020-21 budget provides $16.7 million over two years that could be used for this bill's purposes. Additionally, [the] CalHR indicates that it would incur minor and absorbable costs to implement this bill's new staffing policy.

VOTES:

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 7-0-0

YES: Rodriguez, Voepel, Cooley, Cooper, Fong, O'Donnell, Reyes

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas, Voepel

ASSEMBLY FLOOR: 77-0-2

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Muratsuchi, Quirk

SENATE FLOOR: 39-0-1

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Melendez, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

ABS, ABST OR NV: Jones

UPDATED:

VERSION: August 25, 2020

CONSULTANT: Michael Bolden / P. E. & R. / (916) 319-3957 FN: 0003543

 THIRD READING  

Bill No: AB 1906

Author: Salas (D), et al.

Amended: 8/25/20 in Senate

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 5-0, 8/5/20

AYES: Hill, Morrell, Jackson, Mitchell, Pan

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/20/20

AYES: Portantino, Bates, Bradford, Hill, Jones, Leyva, Wieckowski

ASSEMBLY FLOOR: 77-0, 6/8/20 - See last page for vote

SUBJECT: Pregnant peace officers: duty assignment policy

SOURCE: Author

DIGEST:

This bill requires the Department of Corrections and Rehabilitation (CDCR), in consultation with the California Department of Human Resources (CalHR), to establish and implement by January 1, 2021, a policy pursuant to which a pregnant peace officer shall be permitted to perform alternate, light duty assignments, subject to a medical certification that establishes the nature of pregnancy-related limitations.

Senate Floor Amendments of 8/25/20 make technical changes to align the bill with related Budget Act language including the following: clarify employees affected; specify the respective roles of the pregnant peace officer employees, the CDCR and CalHR; set an implementation date of January 1, 2021, for the new policy; require CDCR to balance interests and make all efforts to provide light duty accommodations to pregnant peace officers; require CDCR to forward all denied requests to CDCR headquarters within five days of denial for a second level review; and require CDCR to provide a publicly available report on accommodation requests that CDCR denies.

ANALYSIS:

Existing law:

1. Entitles a state employee who becomes temporarily or permanently disabled to receive nonindustrial disability benefits in an amount equal to one-half full pay, but not to exceed $125 per week, payable monthly for a period not exceeding 26 weeks for any one disability benefit period (Government Code § 19879).
2. Defines “Disability” or “disabled” to include mental or physical illness and mental or physical injury, including any illness or injury resulting from pregnancy, childbirth, or related medical condition. An employee is deemed disabled on any day in which, because of the employee’s physical, mental, or medical condition, the employee is unable to perform their regular or customary work (Government Code § 19878).
3. Establishes CalHR with powers, duties, and authorities necessary to operate the state civil system pursuant to Article VII of the California Constitution, the California Government Code, the merit principle, and applicable rules duly adopted by the State Personnel Board (Government Code § 18502).
4. States that one purpose of the State Civil Service Act is to provide a comprehensive personnel system in which civil service applicants and employees are treated in an equitable manner without regard to, among other qualities, sex or disability (Government Code § 18500).
5. Authorizes CalHR to provide by rule for days, hours, and conditions of work of state civil services employees expect that where a valid memorandum of understanding (MOU) conflicts with those rules, the MOU shall control (Government Code § 19816.10).
6. Establishes the CDCR and authorizes the CDCR to make rules and regulations to administer the state’s correctional facilities (Penal Code 5000 et seq.).
7. Permits an employer not to hire or to discharge an employee who, because of the employee’s medical condition, is unable to perform the employee’s essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations. (Government Code § 12940(a) (2)).
8. Authorizes a Limited Term Light Duty Assignment (LTLDA) to temporarily allow a CDCR employee with documented temporary medical limitation(s) or restriction(s) that affect the ability to perform one or more of the employee’s essential functions and requires the waiver of one or more essential functions of the employee's current classification and position, to remain working or return to work after an injury or illness. A LTLDA is intended for utilization when employees cannot be accommodated with a reasonable accommodation (15 California Code of Regulation § 3436).
9. Prohibits an employer from refusing to allow an employee disabled by pregnancy to take a leave for a reasonable period of time not to exceed four months and entitles the employee to use any accrued vacation leave during the period of time (Government Code § 12945).
10. Prohibits an employer from refusing to grant an employee’s request to take up to 12 workweeks in any 12-month for family care and medical leave (Government Code § 12945.2).

This bill:

1. Requires CDCR, in consultation with CalHR, to establish a policy to permit a pregnant peace officer to perform alternate, light duty assignments, subject to a medical certification that establishes the nature of pregnancy-related limitations.
2. Provides that the required policy shall include the following elements:
   1. The pregnant peace officer shall remain in their job classification while working in an alternate, light duty assignment.
   2. CDCR shall not force the pregnant peace officer into an alternate, light duty assignment. However, the pregnant peace officer shall be responsible for requesting an alternate, light duty assignment, and submitting documentation from their health care provider that sets forth any restrictions or limitations that support their placement in an alternate, light duty assignment.
   3. The pregnant peace officer shall continue to receive normal promotional opportunities and pay increases to the same extent and under the same conditions afforded prior to performing alternate, light duty assignments.
3. Requires CDCR to weigh carefully any request for an alternate, light duty assignment. The department shall make every effort to accommodate each employee’s individual needs and to consider a combination of options in reaching final determinations, based upon the employee’s medical limitations or restrictions, the employee’s classification, and the needs of the department.
4. Requires CDCR to provide a publicly available report that contains the reasons for the denial if the department denies a request for an alternate, light duty assignment; however, the report shall not include any personally identifying information relating to the peace officer.
5. Requires CDCR to submit all denials, as specified, to CDCR headquarters staff within five business days of the denial for a second level of review. CDCR’s deputy director of facility support for the Division of Adult Institutions, or their designee, shall conduct the review and shall receive input from the CDCR’s Office of Employee Health and Wellness.
6. Provides that the provisions of a valid MOU shall control if there is a conflict with this bill’s provisions except that if the MOU requires the expenditure of funds, it shall not become effective unless approved by the Legislature in the annual Budget Act.

Comments

According to the author:

The California Department of Corrections and Rehabilitation (CDCR) changed its policy in 2015 to eliminate light duty assignments for pregnant correctional officers.

Prior to this policy change, CDCR allowed pregnant correctional officers to take light-duty assignments; however, under the policy adopted in 2015, pregnant correctional officers now are forced to choose between their job and the health and safety of their unborn child. In one tragic example after CDCR's 2015 policy change, a pregnant correctional officer was denied a light-duty assignment and she tragically lost her baby while responding to an inmate altercation. This policy is discriminatory to female correctional officers and underscores the need to improve workplace equity and safety for pregnant correctional officers.

This bill would provide greater workplace equity and safety for pregnant peace officers by requiring CalHR, in cooperation with CDCR, to establish a policy that provides alternate, light-duty assignments while ensuring that the pregnant peace officer remains in their current job classification and receives normal promotional opportunities and pay increases. This bill would align CDCR's policy regarding pregnant peace officers with its pre-2015 policy change and with all other major law enforcement agencies to prevent female peace officers from being forced to choose between their job and their unborn child.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, this bill would result in ongoing personnel costs to CDCR, such as for overtime. The magnitude of these costs would likely be in the millions of dollars annually; the enacted 2020-21 budget provides $16.7 million over two years that could be used for this bill’s purposes. Additionally, CalHR indicates that it would incur minor and absorbable costs to implement this bill’s new staffing policy.

SUPPORT: (Verified 8/20/20)

American Congress of Obstetricians and Gynecologists, District IX

California Catholic Conference

California Employment Lawyers Association

Peter Law Group (on behalf of a former correctional officer and four current correctional officers)

OPPOSITION: (Verified 8/20/20)

None received

ARGUMENTS IN SUPPORT: According to the California Employment Lawyers Association:

Prior to 2015, CDCR maintained a legally compliant policy for its pregnant correctional officers under which it engaged in an individualized interactive process to reasonably accommodate temporary periods of disability due to pregnancies. This included modified "light duty" positions with limited inmate contact when warranted. In 2015, CDCR abruptly abandoned this policy and parted ways with the pregnancy accommodation policies of all major law enforcement agencies including the Federal Bureau of Prisons. In its place, CDCR implemented a rigid, one-size-fits-all policy that has forced female correctional officers to choose between their job and the health and safety of their unborn child.

Assembly Bill 1906 would force CDCR to come into compliance with the law and would provide greater workplace equity and safety for pregnant correctional officers. Importantly, this bill also provides that, pursuant to existing law, pregnant correctional officer must remain in their current job classification and receive normal promotional opportunities and pay increases.

ASSEMBLY FLOOR: 77-0, 6/8/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Muratsuchi, Quirk

Prepared by: Glenn Miles / L., P.E. & R. / (916) 651-1556

8/26/20 15:05:28

**** END ****

 THIRD READING  

Bill No: AB 1906

Author: Salas (D), et al.

Amended: 8/20/20 in Senate

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 5-0, 8/5/20

AYES: Hill, Morrell, Jackson, Mitchell, Pan

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/20/20

AYES: Portantino, Bates, Bradford, Hill, Jones, Leyva, Wieckowski

ASSEMBLY FLOOR: 77-0, 6/8/20 - See last page for vote

SUBJECT: Pregnant correctional officers: duty assignment policy

SOURCE: Author

DIGEST:

This bill requires the California Department of Human Resources (CalHR), in cooperation with the Department of Corrections and Rehabilitation (CDCR), to establish a policy pursuant to which a pregnant correctional officer shall be permitted to perform alternate, light duty assignments, subject to a medical certification that establishes the nature of pregnancy-related limitations.

ANALYSIS:

Existing law:

1. Entitles a state employee who becomes temporarily or permanently disabled to receive nonindustrial disability benefits in an amount equal to one-half full pay, but not to exceed $125 per week, payable monthly for a period not exceeding 26 weeks for any one disability benefit period (Government Code § 19879).
2. Defines “Disability” or “disabled” to include mental or physical illness and mental or physical injury, including any illness or injury resulting from pregnancy, childbirth, or related medical condition. An employee is deemed disabled on any day in which, because of the employee’s physical, mental, or medical condition, the employee is unable to perform their regular or customary work (Government Code § 19878).
3. Establishes CalHR with powers, duties, and authorities necessary to operate the state civil system pursuant to Article VII of the California Constitution, the California Government Code, the merit principle, and applicable rules duly adopted by the State Personnel Board (Government Code § 18502).
4. States that one purpose of the State Civil Service Act is to provide a comprehensive personnel system in which civil service applicants and employees are treated in an equitable manner without regard to, among other qualities, sex or disability (Government Code § 18500).
5. Authorizes CalHR to provide by rule for days, hours, and conditions of work of state civil services employees expect that where a valid memorandum of understanding (MOU) conflicts with those rules, the MOU shall control (Government Code § 19816.10).
6. Establishes the CDCR and authorizes the CDCR to make rules and regulations to administer the state’s correctional facilities (Penal Code 5000 et seq.).
7. Permits an employer not to hire or to discharge an employee who, because of the employee’s medical condition, is unable to perform the employee’s essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations. (Government Code § 12940(a)(2)).
8. Authorizes a Limited Term Light Duty Assignment (LTLDA) to temporarily allow a CDCR employee with documented temporary medical limitation(s) or restriction(s) that affect the ability to perform one or more of the employee’s essential functions and requires the waiver of one or more essential functions of the employee's current classification and position, to remain working or return to work after an injury or illness. A LTLDA is intended for utilization when employees cannot be accommodated with a reasonable accommodation (15 California Code of Regulation § 3436).
9. Prohibits an employer from refusing to allow an employee disabled by pregnancy to take a leave for a reasonable period of time not to exceed four months and entitles the employee to use any accrued vacation leave during the period of time (Government Code § 12945).
10. Prohibits an employer from refusing to grant an employee’s request to take up to a total of 12 workweeks in any 12-month for family care and medical leave (Government Code § 12945.2).

This bill:

1. Requires CalHR, in cooperation with CDCR, to establish a policy pursuant to which a pregnant correctional officer shall be permitted to perform alternate, light duty assignments, subject to a medical certification that establishes the nature of pregnancy-related limitations.
2. Provides that the required policy shall include the following elements:
   1. The pregnant correctional officer shall remain in their job classification while working in an alternate, light duty assignment.
   2. The pregnant correctional officer shall not be forced into an alternate, light duty assignment if the officer is physically able to safely perform their current assignment and security is not compromised.
   3. The decision regarding when to commence an alternative, light duty assignment shall be committed primarily to the officer and their physician.
   4. The pregnant correctional officer shall continue to receive normal promotional opportunities and pay increases to the same extent and under the same conditions afforded prior to performing alternate, light duty assignments.
3. Requires CalHR to complete the required policy by May 1, 2021, and provide it directly to CDCR, which shall adopt and implement it on or before July 1, 2021.
4. Provides that the provisions of a valid MOU shall control if there is a conflict with this bill’s provisions except that if the MOU requires the expenditure of funds, it shall not become effective unless approved by the Legislature in the annual Budget Act.

Comments

According to the author:

The California Department of Corrections and Rehabilitation (CDCR) changed its policy in 2015 to eliminate light duty assignments for pregnant correctional officers.

Prior to this policy change, CDCR allowed pregnant correctional officers to take light-duty assignments; however, under the policy adopted in 2015, pregnant correctional officers now are forced to choose between their job and the health and safety of their unborn child. In one tragic example after CDCR's 2015 policy change, a pregnant correctional officer was denied a light-duty assignment and she tragically lost her baby while responding to an inmate altercation. This policy is discriminatory to female correctional officers and underscores the need to improve workplace equity and safety for pregnant correctional officers.

This bill would provide greater workplace equity and safety for pregnant correctional officers by requiring CalHR, in cooperation with CDCR, to establish a policy that provides alternate, light-duty assignments while ensuring that the pregnant correctional officer remains in their current job classification and receives normal promotional opportunities and pay increases. This bill would align CDCR's policy regarding pregnant correctional officers with its pre-2015 policy change and with all other major law enforcement agencies to prevent female correctional officers from being forced to choose between their job and their unborn child.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, this bill would result in ongoing personnel costs to CDCR, such as for overtime. The magnitude of these costs would likely be in the millions of dollars annually; the enacted 2020-21 budget provides $16.7 million over two years that could be used for this bill’s purposes. Additionally, CalHR indicates that it would incur minor and absorbable costs to implement this bill’s new staffing policy.

SUPPORT: (Verified 8/20/20)

American Congress of Obstetricians and Gynecologists, District IX

California Catholic Conference

California Employment Lawyers Association

Peter Law Group (on behalf of a former correctional officer and four current correctional officers)

OPPOSITION: (Verified 8/20/20)

None received

ARGUMENTS IN SUPPORT: According to the California Employment Lawyers Association:

Prior to 2015, CDCR maintained a legally compliant policy for its pregnant correctional officers under which it engaged in an individualized interactive process to reasonably accommodate temporary periods of disability due to pregnancies. This included modified "light duty" positions with limited inmate contact when warranted. In 2015, CDCR abruptly abandoned this policy and parted ways with the pregnancy accommodation policies of all major law enforcement agencies including the Federal Bureau of Prisons. In its place, CDCR implemented a rigid, one-size-fits-all policy that has forced female correctional officers to choose between their job and the health and safety of their unborn child.

Assembly Bill 1906 would force CDCR to come into compliance with the law and would provide greater workplace equity and safety for pregnant correctional officers. Importantly, this bill also provides that, pursuant to existing law, pregnant correctional officer must remain in their current job classification and receive normal promotional opportunities and pay increases."

ASSEMBLY FLOOR: 77-0, 6/8/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Muratsuchi, Quirk

Prepared by: Glenn Miles / L., P.E. & R. / (916) 651-1556

8/25/20 13:36:15

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 1906 (Salas) - Pregnant correctional officers: duty assignment policy

Bill Summary:

AB 1906 would require the California Department of Human Resources (CalHR), in cooperation with the Department of Corrections and Rehabilitation (CDCR), to establish a policy pursuant to which a pregnant correctional officer shall be permitted to perform alternate, light duty assignments, subject to a medical certification that establishes the nature of pregnancy-related limitations.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 20, 2020

Fiscal Impact:

This bill would result in ongoing personnel costs to CDCR, such as for overtime. The magnitude of these costs would likely be in the millions of dollars annually; the enacted 2020-21 budget provides $16.7 million over two years that could be used for the bill’s purposes. Additionally, CalHR indicates that it would incur minor and absorbable costs to implement the bill’s new staffing policy.

Author Amendments:

Add co-authors.

-- END --

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 1906 (Salas) - Pregnant correctional officers: duty assignment policy

Bill Summary:

AB 1906 would require the California Department of Human Resources (CalHR), in cooperation with the Department of Corrections and Rehabilitation (CDCR), to establish a policy pursuant to which a pregnant correctional officer shall be permitted to perform alternate, light duty assignments, subject to a medical certification that establishes the nature of pregnancy-related limitations.

Fiscal Impact:

This bill would result in ongoing personnel costs to CDCR, such as for overtime. The magnitude of these costs would likely be in the millions of dollars annually; the enacted 2020-21 budget provides $16.7 million over two years that could be used for the bill’s purposes (See Staff Comments). Additionally, CalHR indicates that it would incur minor and absorbable costs to implement the bill’s new staffing policy.

Background:

Current law generally requires employers to provide workers with reasonable accommodations, when requested, for pregnancy and pregnancy related conditions. Once an employee requests a reasonable accommodation such as this, the employer must engage in a “timely, good faith, interactive process with the employee.” Employers can only refuse to provide a reasonable accommodation where it can show that the accommodation would cause “undue hardship” as defined the in Government Code, or if the refusal is “based on a bona fide occupational qualification.” These caveats thus mean that the rules in any given workplace will depend on the nature of the industry and occupation in question.

Several issues and problems have reportedly occurred at CDCR involving pregnant officers working in dangerous conditions. Earlier in 2020, following a number of lawsuits, CDCR announced a policy change to allow pregnant correctional officers to take light duty assignments. A limited-term, light duty assignment is the temporary placement of CDCR employees who cannot perform their current job because of medical limitations. Generally, these employees (1) are placed into a vacant, budgeted position within the employee’s bargaining unit, or (2) remain in their current position but without performing certain functions.

Proposed Law:

This bill, among other things, would require CalHR, in cooperation with CDCR, to establish a policy pursuant to which a pregnant correctional officer shall be permitted to perform alternate, light duty assignments, subject to a medical certification that establishes the nature of pregnancy-related limitations. The policy would be required to have specified elements, including the following:

• The pregnant correctional officer shall remain in their job classification while working in an alternate, light duty assignment.
• The pregnant correctional officer shall not be forced into an alternate, light duty assignment if the officer is physically able to safely perform their current assignment and security is not compromised.
• The pregnant correctional officer shall continue to receive normal promotional opportunities and pay increases to the same extent and under the same conditions afforded prior to performing alternate, light duty assignments.

CalHR would be required to complete the required policy by May 1, 2021, and provide it directly to CDCR, which shall adopt and implement it on or before July 1, 2021.

Staff Comments:

This bill would direct the implementation of a policy ensuring that pregnant guards may obtain light duty assignments as a reasonable accommodation without having to give up pay increases or promotional opportunities as a result.

CalHR would incur minimal costs to draft such a policy. The fiscal driver of the bill would result from implementation of the policy by CDCR, which would result in increased staffing costs. As noted previously CDCR did recently have emergency regulations approved (CCR 3436, Limited Light Duty Assignments and 3436.1, Temporary Modified Work Assignments) applicable to all CDCR employees.

The enacted 2020-21 budget includes $16.7 million General Fund annually to CDCR for two years to provide modified work assignment posts for staff with medical conditions that result in restrictions or limitations, such as pregnancy, to provide them opportunities to continue working or return to work earlier than would otherwise be possible. The Administration intends to use the period covered by the limited-term funding to determine the appropriate level of ongoing resources for this program.

-- END --

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Jerry Hill, Chair

2019 - 2020 Regular

Bill No: AB 1906 Hearing Date: August 5, 2020

SUBJECT: Pregnant correctional officers: duty assignment policy.

KEY ISSUE

Should the Legislature require the California Department of Human Resources (CalHR), in cooperation with the Department of Corrections and Rehabilitation (CDCR), to establish a policy pursuant to which a pregnant correctional officer shall be permitted to perform alternate, light duty assignments, subject to a medical certification that establishes the nature of pregnancy-related limitations?

ANALYSIS

Existing law:

1. Entitles a state employee who becomes temporarily or permanently disabled to receive nonindustrial disability benefits in an amount equal to one-half full pay, but not to exceed one hundred twenty-five dollars ($125) per week, payable monthly for a period not exceeding 26 weeks for any one disability benefit period (Government Code § 19879).
2. Defines “Disability” or “disabled” to include mental or physical illness and mental or physical injury, including any illness or injury resulting from pregnancy, childbirth, or related medical condition. An employee is deemed disabled on any day in which, because of the employee’s physical, mental, or medical condition, the employee is unable to perform their regular or customary work (Government Code § 19878).
3. Establishes the California Department of Human Resources (CalHR) with powers, duties, and authorities necessary to operate the state civil system pursuant to Article VII of the California Constitution, the California Government Code, the merit principle, and applicable rules duly adopted by the State Personnel Board (Government Code § 18502).
4. States that one purpose of the State Civil Service Act is to provide a comprehensive personnel system in which civil service applicants and employees are treated in an equitable manner without regard to, among other qualities, sex or disability (Government Code § 18500).
5. Authorizes CalHR to provide by rule for days, hours, and conditions of work of state civil services employees expect that where a valid memorandum of understanding (MOU) conflicts with those rules, the MOU shall control (Government Code § 19816.10).
6. Establishes the California Department of Corrections and Rehabilitation (CDCR) and authorizes the CDCR to make rules and regulations to administer the state’s correctional facilities (Penal Code 5000 et seq.).
7. Does not prohibit an employer from refusing to hire or discharging an employee who, because of the employee’s medical condition, is unable to perform the employee’s essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations. Existing law does not subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employee’s medical condition, is unable to perform the employee’s essential duties, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations (Government Code § 12940).
8. Authorizes a Limited Term Light Duty Assignment (LTLDA) to temporarily allow a CDCR employee with documented temporary medical limitation(s) or restriction(s) that affect the ability to perform one or more of the employee’s essential functions and requires the waiver of one or more essential functions of the employee's current classification and position, to remain working or return to work after an injury or illness. A LTLDA is intended for utilization when employees cannot be accommodated with a reasonable accommodation (15 California Code of Regulation § 3436).
9. Prohibits an employer from refusing to allow an employee disabled by pregnancy to take a leave for a reasonable period of time not to exceed four months and entitles the employee to use any accrued vacation leave during the period of time (Government Code § 12945).
10. Prohibits an employer from refusing to grant an employee’s request to take up to a total of 12 workweeks in any 12-month for family care and medical leave (Government Code § 12945.2).

This bill:

1. Requires CalHR, in cooperation with CDCR, to establish a policy pursuant to which a pregnant correctional officer shall be permitted to perform alternate, light duty assignments, subject to a medical certification that establishes the nature of pregnancy-related limitations.
2. Provides that the required policy shall include the following elements:
3. The pregnant correctional officer shall remain in their job classification while working in an alternate, light duty assignment.
4. The pregnant correctional officer shall not be forced into an alternate, light duty assignment if the officer is physically able to safely perform their current assignment and security is not compromised.
5. The decision regarding when to commence an alternative, light duty assignment shall be committed primarily to the officer and their physician.
6. The pregnant correctional officer shall continue to receive normal promotional opportunities and pay increases to the same extent and under the same conditions afforded prior to performing alternate, light duty assignments.
7. Requires CalHR to complete the required policy by May 1, 2021, and provide it directly to CDCR, which shall adopt and implement it on or before July 1, 2021.
8. Provides that the provisions of a valid memorandum of understanding (MOU) shall control if there is a conflict with this bill’s provisions except that if the MOU requires the expenditure of funds, it shall not become effective unless approved by the Legislature in the annual Budget Act.

COMMENTS

1. Background

In a normal Legislative session, the Senate Judiciary Committee would have had the opportunity to hear this bill. Unfortunately, the constraints of the Covid19 pandemic require adjustments to our regular practice. However, committee staff consulted with staff from the Judiciary Committee who contributed the following information:

Workplace discrimination against pregnant individuals is one of several forms of gender discrimination that perpetuate inequitable career opportunity and reward, including the pay gap. In general, California law requires employers to provide workers with reasonable accommodations, when requested, for pregnancy and pregnancy related conditions. (Gov. Code §§ 12940(m); 12945(a)(3).) Procedurally, once an employee requests a reasonable accommodation for a disability, the employer must engage in a “timely, good faith, interactive process with the employee […] to determine effective reasonable accommodations…” (Gov. Code § 12940(n).)

The employer can only refuse to provide a reasonable accommodation where it can show that the accommodation would cause “undue hardship” as defined in Government Code 12926(u) or if the refusal is “based on a bona fide occupational qualification.” These caveats mean that the rules in any given workplace will depend on the nature of the industry and occupation in question. The author and sponsor of this bill assert that prior CDCR policies, which forced pregnant prison guards to choose between taking a lighter duty assignment or losing pay and promotional opportunities, failed to meet the legal standard, a position they buttress by pointing to injunctive relief given to pregnant prison guards in recent years. (See Jacqueline Carreon, et al. v. California Department of Corrections and Rehabilitation (Super. Ct Los Angeles County, 2019, No. 19STCV09935); Sarah Coogle v. California Department of Corrections and Rehabilitation (Super. Ct. Kern County, 2018, No. BCV-18-100866).)

This bill would direct the implementation of a policy ensuring that pregnant guards may obtain light duty assignments as a reasonable accommodation without having to give up pay increases or promotional opportunities as a result.

2. Need for this bill?

According to the author,

The California Department of Corrections and Rehabilitation (CDCR) changed its policy in 2015 to eliminate light duty assignments for pregnant correctional officers.

"Prior to this policy change, CDCR allowed pregnant correctional officers to take light-duty assignments; however, under the policy adopted in 2015, pregnant correctional officers now are forced to choose between their job and the health and safety of their unborn child. In one tragic example after CDCR's 2015 policy change, a pregnant correctional officer was denied a light-duty assignment and she tragically lost her baby while responding to an inmate altercation. This policy is discriminatory to female correctional officers and underscores the need to improve workplace equity and safety for pregnant correctional officers.

This bill would provide greater workplace equity and safety for pregnant correctional officers by requiring CalHR, in cooperation with CDCR, to establish a policy that provides alternate, light-duty assignments while ensuring that the pregnant correctional officer remains in their current job classification and receives normal promotional opportunities and pay increases. This bill would align CDCR's policy regarding pregnant correctional officers with its pre-2015 policy change and with all other major law enforcement agencies to prevent female correctional officers from being forced to choose between their job and their unborn child.

3. Litigation

Although a lawsuit in which a pregnant correctional officer suffered a miscarriage after falling while responding to a prisoner conflict has ended in a settlement with a substantial award to the plaintiff, there is an ongoing class action by several additional correctional officers who were denied light duty assignments when pregnant. It is unclear whether and how this bill would affect the ongoing or future litigation involving CDCR.

4. Proponent Arguments

According to the California Employment Lawyers Association (CELA),

Prior to 2015, CDCR maintained a legally compliant policy for its pregnant correctional officers under which it engaged in an individualized interactive process to reasonably accommodate temporary periods of disability due to pregnancies. This included modified "light duty" positions with limited inmate contact when warranted. In 2015, CDCR abruptly abandoned this policy and parted ways with the pregnancy accommodation policies of all major law enforcement agencies including the Federal Bureau of Prisons. In its place, CDCR implemented a rigid, one-size-fits-all policy that has forced female correctional officers to choose between their job and the health and safety of their unborn child.

Assembly Bill 1906 would force CDCR to come into compliance with the law and would provide greater workplace equity and safety for pregnant correctional officers. Importantly, this bill also provides that, pursuant to existing law, pregnant correctional officer must remain in their current job classification and receive normal promotional opportunities and pay increases."

5. Opponent Arguments:

None received.

1. Prior Legislation:

None found.

SUPPORT

American Congress of Obstetricians and Gynecologists, District IX

California Catholic Conference

California Employment Lawyers Association

Peter Law Group (on behalf of a former correctional officer and four current correctional officers)

OPPOSITION

None on file

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 1906

Author:(Salas)

As Amended Ver:March 5, 2020

Majority vote

SUMMARY:

Requires the Department of Human Resources (CalHR), in cooperation with the Department of Corrections and Rehabilitation (CDCR), to establish a policy relating to pregnant correctional officers and work assignments, among other provisions.

Major Provisions

1. Requires a policy that permits a pregnant correctional officer to perform alternate, light duty assignments subject to a medical certification that establishes the nature of pregnancy-related limitations.
2. Requires the policy to include the following elements relating to a pregnant correctional officer:
3. The correctional officer must remain in the job classification while working in an alternate, light duty assignment;
4. The correctional officer must not be forced into an alternate, light duty assignment if the officer is physically able to perform the current assignment and security is not compromised;
5. The decision regarding when the alternate, light duty assignment commences must be primarily committed to the officer and the physician, and
6. The correctional officer must continue to receive normal promotional opportunities and pay increases to the same extend and under the same conditions afforded prior to performing the alternate, light duty assignments.
7. Establishes the precedence of provisions in a memorandum of understanding over a conflicting statutory provision.
8. Requires the CalHR to complete the policy by May 1, 2021, and directly provide it to the CDCR, which must adopt and implement the policy on or before July 1, 2021.

COMMENTS:

1. Relevant Case Law

In a class action claim against the CDCR, plaintiffs sought injunctive relief based on discrimination on the basis of sex, gender and pregnancy in violation of the Fair Employment and Housing Act (FEHA); failure to engage in good faith interactive process in violation of the FEHA; retaliation in violation of the FEHA; denial of pregnancy disability rights in violation of the FEHA and Pregnancy Disability Leave law, and failure to prevent discrimination and retaliation from occurring in the violation of the FEHA.^[1]

In this action, the court held that the CDCR must make light duty assignments available to the plaintiffs, and granted the request of the plaintiffs for a temporary injunction.

In Coogle, the plaintiff brought an unlimited civil action against the CDCR for disability discrimination in violation of the FEHA, failure to accommodate in violation of the FEHA, and failure to engage in the interactive process in violation of the FEHA. In this claim, the plaintiff requested alternate work while she was pregnant and working as a correctional officer. The pregnant employee was forced to stay in her current position and while seven months pregnant, intervened in a fight among inmates and fell. As a result, she lost her unborn child, and almost her own life.^[2]

1. Existing Law Currently Provides Protections to Employees Relating to Pregnancy, Childbirth or Other Related Medical Conditions. This Bill Proposes Additional Related Protections.

Previously discussed under "Existing Law," Section 12940 et. seq. of the Government Code currently prescribes rights for public employees and prohibitions for public employers against unlawful conduct and practices in employment, including those related to pregnancy, childbirth, or other related medical conditions.

While existing law provides such protections, recent legal claims regarding the rights of pregnant employees working for the CDCR exist that are directly relevant to the subject of this bill. Although existing law prescribes certain rights for pregnant employees and prohibitions against an employer relating to these employees, this bill seeks to provide added clarity and protections for these employees.

1. Other Important Information

This bill would statutorily place the requirement for a policy provided for herein relating to purposes of compliance, rather than permitting the CDCR to arbitrarily modify the core provisions established by this bill, or eliminate the policy altogether, in the future.

Please see the policy committee analysis for a full discussion of this bill.

According to the Author:

"The California Department of Corrections and Rehabilitation (CDCR) changed its policy in 2015 to eliminate light duty assignments for pregnant correctional officers.

"Prior to this policy change, CDCR allowed pregnant correctional officers to take light-duty assignments; however, under the policy adopted in 2015, pregnant correctional officers now are forced to choose between their job and the health and safety of their unborn child. In one tragic example after CDCR's 2015 policy change, a pregnant correctional officer was denied a light-duty assignment and she tragically lost her baby while responding to an inmate altercation. This policy is discriminatory to female correctional officers and underscores the need to improve workplace equity and safety for pregnant correctional officers.

"This bill would provide greater workplace equity and safety for pregnant correctional officers by requiring CalHR, in cooperation with CDCR, to establish a policy that provides alternate, light-duty assignments while ensuring that the pregnant correctional officer remains in their current job classification and receives normal promotional opportunities and pay increases. This bill would align CDCR's policy regarding pregnant correctional officers with its pre-2015 policy change and with all other major law enforcement agencies to prevent female correctional officers from being forced to choose between their job and their unborn child."

Arguments in Support:

According to the California Employment Lawyers Association (CELA), "Prior to 2015, CDCR maintained a legally compliant policy for its pregnant correctional officers under which it engaged in an individualized interactive process to reasonably accommodate temporary periods of disability due to pregnancies. This included modified "light duty" positions with limited inmate contact when warranted. In 2015, CDCR abruptly abandoned this policy and parted ways with the pregnancy accommodation policies of all major law enforcement agencies including the Federal Bureau of Prisons. In its place, CDCR implemented a rigid, one-size-fits-all policy that has forced female correctional officers to choose between their job and the health and safety of their unborn child.

"Assembly Bill 1906 would force CDCR to come into compliance with the law and would provide greater workplace equity and safety for pregnant correctional officers. Importantly, this bill also provides that, pursuant to existing law, pregnant correctional officer must remain in their current job classification and receive normal promotional opportunities and pay increases."

Arguments in Opposition:

None on file.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, this bill would result in "[O]ne-time administrative General Fund (GF) [costs] of approximately $50,000 for [the] CDCR to implement a new staffing policy. While [the] CalHR would not incur any costs for developing the policy, [the] CDCR would still need to undergo the regulatory process to implement it." In addition, the bill would result in "[O]ngoing staffing GF costs for [the] CDCR, such as overtime costs in the millions of dollars each year. The Governor's May revision includes $16.7 million GF for two years to fund a similar work assignment policy."

VOTES:

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 7-0-0

YES: Rodriguez, Voepel, Cooley, Cooper, Fong, O'Donnell, Reyes

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas, Voepel

UPDATED:

VERSION: March 5, 2020

CONSULTANT: Michael Bolden / P.E. & R. / (916) 319-3957 FN: 0002861

1. See Jacqueline Carreon, et al. v. California Department of Corrections and Rehabilitation, Case No. 19STCV09935 (2019). ↑

2. See Sarah Coogle v. California Department of Corrections and Rehabilitation, Case No. BCV-18-100866 (2018). ↑

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1906

Author:(Salas) – As Amended Ver:March 5, 2020

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the California Department of Human Resources (CalHR), in coordination with the California Department of Corrections and Rehabilitation (CDCR), to establish a “light duty” work assignment policy for pregnant correctional officers. This policy must require specified elements related to job security and mobility, such as ensuring the officer remain in their current job classification while working in an alternative, light duty assignment. CalHR must complete this policy by May 1, 2021, and CDCR must implement this policy by July 1, 2021.

FISCAL EFFECT:

1. One-time administrative General Fund (GF) of approximately $50,000 for CDCR to implement a new staffing policy. While Cal HR would not incur any costs for developing the policy, CDCR would still need to undergo the regulatory process to implement it.
2. Ongoing staffing GF costs for CDCR, such as overtime costs, in the millions of dollars each year. The Governor’s May revision includes $16.7 million GF for two years to fund a similar work assignment policy.

COMMENTS:

1. Light duty assignment. A limited term light duty assignment is the temporary placement of a CDCR employee who cannot perform their current job because of medical limitations. Generally, CDCR places this employee in a vacant, budgeted position within the employee’s bargaining unit or allows the employee to remain in their current position but without performing certain functions.
2. Recent policy change and budget proposal. This bill is a response to a host of issues and problems at CDCR involving pregnant officers working in dangerous conditions. In the spring of 2020, following a number of lawsuits, CDCR announced a policy change to allow pregnant correctional officers to take light duty assignments.

The Governor’s revised 2020-21 budget (May Revise) includes $16.7 million GF each year for two years to provide “modified work assignment posts for staff with medical conditions that result in restrictions or limitations, such as pregnancy.”

1. Purpose. According to the author, this bill will provide greater workplace equity and safety for pregnant correctional officers and align CDCR’s policy with “all other major law enforcement agencies to prevent female correctional officers from being forced to choose between their job and their unborn child.”

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: May 5, 2020

ASSEMBLY COMMITTEE ON PUBLIC EMPLOYMENT AND RETIREMENT

Freddie Rodriguez, Chair

ABPCA Bill Id:AB 1906 (

Author:Salas) – As Amended Ver:March 5, 2020

SUBJECT: Pregnant correctional officers: duty assignment policy

SUMMARY: Requires the Department of Human Resources (CalHR), in cooperation with the Department of Corrections and Rehabilitation (CDCR), to establish a policy relating to pregnant correctional officers and work assignments, among other provisions. Specifically, this bill:

1. Requires a policy that permits a pregnant correctional officer to perform alternate, light duty assignments subject to a medical certification that establishes the nature of pregnancy-related limitations.
2. Requires the policy to include the following elements relating to a pregnant correctional officer:
3. The correctional officer must remain in the job classification while working in an alternate, light duty assignment;
4. The correctional officer must not be forced into an alternate, light duty assignment if the officer is physically able to perform the current assignment and security is not compromised;
5. The decision regarding when the alternate, light duty assignment commences must be primarily committed to the officer and the physician, and
6. The correctional officer must continue to receive normal promotional opportunities and pay increases to the same extend and under the same conditions afforded prior to performing the alternate, light duty assignments.
7. Includes a provision regarding the precedence of a memorandum of understanding over a conflicting statutory provision.
8. Requires the CalHR to complete the policy by May 1, 2021, and directly provide it to the CDCR, which must adopt and implement the policy on or before July 1, 2021.

EXISTING LAW:

1. Provides that it is an unlawful employment practice, unless based on a bona fide occupational qualification, or, except where based on applicable security regulations established by the United States or the State of California, to refuse to hire, employ, select a person for a training program leading to employment, to bar or discharge a person from employment, or to discriminate against the person in compensation in terms of conditions or privileges of employment because of race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression age, sexual orientation, or military and veteran status of any person.
2. Establishes that an employer is not prohibited from refusing to hire or discharging an employee with a physical or mental disability, or subject to an employer to legal liability, as provided, if the employee is unable to perform the essential duties of the job even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety, or safety of others even with reasonable accommodations.
3. Provides, relating to pregnancy, childbirth, or a related medical condition, as provided, that it is an unlawful employer practice, unless based on a bona fide occupational qualification, for an employer to:
4. Refuse to allow an employee disabled by pregnancy, childbirth, or other related medical condition to take a leave for a reasonable period of time to exceed four months and return to work thereafter. Included are provisions relating to pay and health coverage.
5. Refuse to provide a reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or related medical condition if the employee requests, with the advice of the employee’s health care provider.
6. Have a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of temporarily disabled employees to less strenuous or hazardous positions for the duration of the disability or to refuse to transfer a pregnant employee who requests.
7. Refuse to temporarily transfer a pregnant employee to a less strenuous or hazardous employee for the duration of the pregnancy if the employee requests, with the advice of the employee’s physician, where the transfer can be reasonably accommodated. However, an employer is not required to create additional employment that it would not have otherwise created, nor is the employer required to discharge, transfer any employee with seniority, or promote any employee who is not qualified to perform the job.
8. Interfere with, restrain, or deny the exercise of, or the attempt to exercise, any rights granted, as provided.
9. Provides, pursuant to Section 1 of Article VII of the California Constitution, that the civil service includes every officer and employee of the state except as otherwise provided and that in the civil service, permanent appointment and promotion be made under a general system based on merit ascertained by competitive examination, and that tenure of civil service employment is subject to good behavior.
10. Establishes the CalHR which is responsible for all matters relating to state employee salaries, benefits, job classification, civil rights, training, exams, and recruitment and retention. In addition, the Director of CalHR has the duty to administer and enforce laws relating to personnel.
11. Establishes Pregnancy Disability Leave (PDL) which is leave from work to accommodate employees with a pregnant disability. Generally, a health care provider will recommend the duration of leave from work under PDL, but a pregnant employee is entitled up to four months of PDL per pregnancy. This leave is in addition to any other leave for which an employee may be eligible under the Fair Employment and Housing Act (FEHA), California Family Rights Act, other state laws or employer’s policies.
12. Establishes, pursuant to Article VII of the California Constitution, the State Personnel Board which is responsible for enforcing civil service statutes, prescribing probationary periods and classifications, adopting other rules established by statute, and reviewing disciplinary actions.
13. Requires that the employment procedures of CalHR and each state agency conform to federal and state laws governing employment practices, including the use of employment forms.
14. Provides several statutory frameworks under California law to provide public employees collective bargaining rights, govern public employer-employee relations, and limit labor strife and economic disruption in the public sector through a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment between public employers and recognized public employee organizations or their exclusive representatives.

For state employees, the Ralph C. Dills Act is the statutory framework that governs public employer-employee relations for state employees.

1. Establishes the Public Employment Relations Board, a quasi-judicial administrative agency charged with administering the Dills Act, among other statutory frameworks for resolving disputes, and enforcing the statutory obligations and rights of public agency employers and employee organizations, but provides the City and County of Los Angeles a local alternative to PERB oversight.

FISCAL EFFECT: Unknown. This bill is flagged as fiscal by Legislative Counsel.

COMMENTS: According to the author, “The California Department of Corrections and Rehabilitation (CDCR) changed its policy in 2015 to eliminate light duty assignments for pregnant correctional officers.

“Prior to this policy change, CDCR allowed pregnant correctional officers to take light-duty assignments; however, under the policy adopted in 2015, pregnant correctional officers now are forced to choose between their job and the health and safety of their unborn child. In one tragic example after CDCR’s 2015 policy change, a pregnant correctional officer was denied a light-duty assignment and she tragically lost her baby while responding to an inmate altercation. This policy is discriminatory to female correctional officers and underscores the need to improve workplace equity and safety for pregnant correctional officers.

“This bill would provide greater workplace equity and safety for pregnant correctional officers by requiring CalHR, in cooperation with CDCR, to establish a policy that provides alternate, light-duty assignments while ensuring that the pregnant correctional officer remains in their current job classification and receives normal promotional opportunities and pay increases. This bill would align CDCR’s policy regarding pregnant correctional officers with its pre-2015 policy change and with all other major law enforcement agencies to prevent female correctional officers from being forced to choose between their job and their unborn child.”

1. Responsibilities of CalHR

Among other responsibilities, and for those most relevant to the purposes of this bill, the CalHR is responsible for:

1. Personnel management, which CalHR administers the state’s classification plan, salaries, and manager and supervisor program, among other programs related to personnel.
2. Civil rights, where CalHR provides leadership and guidance to departments to protect the civil rights of all state employees.
3. Creating and administering the state’s civil service exam to provide a fair and open process to hire qualified candidates to serve the state.
4. Labor relations, and represents the Governor as the employer in employer-employee relations pursuant to the Dills Act, including collective bargaining with the state’s twenty-one collective bargaining units.
5. Responsibilities of the Department of Fair Employment and Housing

Existing law established the Department of Fair Employment and Housing (DFEH), the state’s civil rights agency, which is charged with enforcing the State’s civil rights laws, including the FEHA. The DFEH serves to protect people from unlawful discrimination in employment, among other areas, and receives employment-related complaints pursuant to the FEHA, which applies to public and private employers, labor organizations and employment agencies.

1. The Fair Employment and Housing Act

The FEHA provides protection from harassment or discrimination in employment because of: age, ancestry, color, creed, denial of family and medical care leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition, national origin, race, religion, sex, and sexual orientation.^[1]

1. Relevant Case Law

In a class action claim against the CDCR, plaintiffs sought injunctive relief based on discrimination on the basis of sex, gender and pregnancy in violation of the FEHA; failure to engage in good faith interactive process in violation of the FEHA; retaliation in violation of the FEHA; denial of pregnancy disability rights in violation of the FEHA and Pregnancy Disability Leave law, and failure to prevent discrimination and retaliation from occurring in the violation of the FEHA.^[2]

In this action, the court held that the CDCR must make light duty assignments available to the plaintiffs, and granted the request of the plaintiffs for a temporary injunction.

In Coogle, the plaintiff brought an unlimited civil action against the CDCR for disability discrimination in violation of the FEHA, failure to accommodate in violation of the FEHA, and failure to engage in the interactive process in violation of the FEHA. In this claim, the plaintiff requested alternate work while she was pregnant and working as a correctional officer. The pregnant employee was forced to stay in her current position and while seven months pregnant, intervened in a fight among inmates and fell. As a result, she lost her unborn child, and almost her own life.^[3]

1. Existing Law Currently Provides Protections to Employees Relating to Pregnancy, Childbirth or Other Related Medical Conditions. This Bill Proposes Additional Related Protections.

Previously discussed under “Existing Law,” Section 12940 et. seq. of the Government Code currently prescribes rights for public employees and prohibitions for public employers against unlawful conduct and practices in employment, including those related to pregnancy, childbirth, or other related medical conditions.

While existing law provides such protections, recent legal claims regarding the rights of pregnant employees working for the CDCR exist that are directly relevant to the subject of this bill. Although existing law prescribes certain rights for pregnant employees and prohibitions against an employer relating to these employees, this bill seeks to provide added clarity and protections for these employees.

1. Comments by Supporters

According to the California Employment Lawyers Association (CELA), “Prior to 2015, CDCR maintained a legally compliant policy for its pregnant correctional officers under which it engaged in an individualized interactive process to reasonably accommodate temporary periods of disability due to pregnancies. This included modified “light duty” positions with limited inmate contact when warranted. In 2015, CDCR abruptly abandoned this policy and parted ways with the pregnancy accommodation policies of all major law enforcement agencies including the Federal Bureau of Prisons. In its place, CDCR implemented a rigid, one-size-fits-all policy that has forced female correctional officers to choose between their job and the health and safety of their unborn child.

“Assembly Bill 1906 would force CDCR to come into compliance with the law and would provide greater workplace equity and safety for pregnant correctional officers. Importantly, this bill also provides that, pursuant to existing law, pregnant correctional officer must remain in their current job classification and receive normal promotional opportunities and pay increases.”

REGISTERED SUPPORT / OPPOSITION:

Support

American Congress of Obstetricians and Gynecologists, District IX

California Catholic Conference

California Employment Lawyers Association

Peter Law Group (on behalf of a former correctional officer and four current correctional officers)

Opposition

None on file

Analysis Prepared by: Michael Bolden / P.E. & R. / (916) 319-3957

1. See Sections 12900 – 12951, 12927 – 12928, 12955 – 12956.1, and 12960-12976 of the Government Code. ↑

2. See Jacqueline Carreon, et al. v. California Department of Corrections and Rehabilitation, Case No. 19STCV09935 (2019). ↑

3. See Sarah Coogle v. California Department of Corrections and Rehabilitation, Case No. BCV-18-100866 (2018). ↑