| 1 | | - | Amended IN Assembly January 06, 2020 CALIFORNIA LEGISLATURE 20192020 REGULAR SESSION Assembly Bill No. 882Introduced by Assembly Member McCartyFebruary 20, 2019 An act to add Section 1029 to the Labor Code, relating to employment. amend Section 12926 of the Government Code, relating to discrimination.LEGISLATIVE COUNSEL'S DIGESTAB 882, as amended, McCarty. Termination of Discrimination in employment: drug testing: medication-assisted treatment. rehabilitation programs.Under the California Fair Employment and Housing Act, it is unlawful to engage in specified discriminatory employment practices, including hiring, promotion, and termination based on certain protected characteristics, including race, unless based on a bona fide occupational qualification or applicable security regulations. The act also prohibits housing discrimination based on specified personal characteristics, including physical or mental disability. The act also prohibits discrimination because of a perception that a person has one of those protected characteristics or is associated with a person who has, or is perceived to have, any of those characteristics. Existing law defines terms such as race, religious beliefs, physical disability, and mental disability among others, for purposes of the act. This bill would revise the definitions of physical disability and mental disability to include a person who has completed, or is in the process of completing, a rehabilitation program to end illegal drug use, or who is erroneously regarded to be engaging in illegal drug use.Existing law requires an employer who regularly employs 25 or more employees to reasonably accommodate any employee who voluntarily participates in an alcohol or drug rehabilitation program, provided the employer does not suffer undue hardship.This bill would prohibit an employer, regardless of the number of employees, from discharging an employee for testing positive for a drug that is being used as a medical-assisted treatment, under the care of a physician or licensed treatment program, as specified.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO Bill TextThe people of the State of California do enact as follows:SECTION 1. Section 12926 of the Government Code, as amended by Section 3 of Chapter 58 of the Statutes of 2019, is amended to read:12926. As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:(a) Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.(b) Age refers to the chronological age of any individual who has reached a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h) Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.(i) Medical condition means either of the following:(1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.(2) Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:(A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or that persons offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(6) Nothing in this subdivision shall be construed to exclude, as an individual with a mental disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(k) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m) Physical disability includes, but is not limited to, all of the following:(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.(B) Limits a major life activity. For purposes of this section:(i) Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.(iii) Major life activities shall be broadly construed and includes physical, mental, and social activities and working.(2) Any other health impairment not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).(6) Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(7) Nothing in this subdivision shall be construed to exclude, as an individual with a physical disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(n) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).(o) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.(w) Race is inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.(x) Protective hairstyles includes, but is not limited to, such hairstyles as braids, locks, and twists.SECTION 1.Section 1029 is added to the Labor Code, to read:1029.No private employer, regardless of the number of employees, shall terminate the employment of an employee if the sole reason for termination is that the employee tested positive on a drug test for a drug that is being used as a medication-assisted treatment under the care of a physician or pursuant to a licensed narcotics treatment program. |
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| 1 | + | CALIFORNIA LEGISLATURE 20192020 REGULAR SESSION Assembly Bill No. 882Introduced by Assembly Member McCartyFebruary 20, 2019 An act to add Section 1029 to the Labor Code, relating to employment. LEGISLATIVE COUNSEL'S DIGESTAB 882, as introduced, McCarty. Termination of employment: drug testing: medication-assisted treatment.Existing law requires an employer who regularly employs 25 or more employees to reasonably accommodate any employee who voluntarily participates in an alcohol or drug rehabilitation program, provided the employer does not suffer undue hardship.This bill would prohibit an employer, regardless of the number of employees, from discharging an employee for testing positive for a drug that is being used as a medical-assisted treatment, under the care of a physician or licensed treatment program, as specified.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO Bill TextThe people of the State of California do enact as follows:SECTION 1. Section 1029 is added to the Labor Code, to read:1029. No private employer, regardless of the number of employees, shall terminate the employment of an employee if the sole reason for termination is that the employee tested positive on a drug test for a drug that is being used as a medication-assisted treatment under the care of a physician or pursuant to a licensed narcotics treatment program. |
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| 46 | | - | The people of the State of California do enact as follows:SECTION 1. Section 12926 of the Government Code, as amended by Section 3 of Chapter 58 of the Statutes of 2019, is amended to read:12926. As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:(a) Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.(b) Age refers to the chronological age of any individual who has reached a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h) Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.(i) Medical condition means either of the following:(1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.(2) Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:(A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or that persons offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(6) Nothing in this subdivision shall be construed to exclude, as an individual with a mental disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(k) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m) Physical disability includes, but is not limited to, all of the following:(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.(B) Limits a major life activity. For purposes of this section:(i) Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.(iii) Major life activities shall be broadly construed and includes physical, mental, and social activities and working.(2) Any other health impairment not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).(6) Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(7) Nothing in this subdivision shall be construed to exclude, as an individual with a physical disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(n) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).(o) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.(w) Race is inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.(x) Protective hairstyles includes, but is not limited to, such hairstyles as braids, locks, and twists.SECTION 1.Section 1029 is added to the Labor Code, to read:1029.No private employer, regardless of the number of employees, shall terminate the employment of an employee if the sole reason for termination is that the employee tested positive on a drug test for a drug that is being used as a medication-assisted treatment under the care of a physician or pursuant to a licensed narcotics treatment program. |
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| 36 | + | The people of the State of California do enact as follows:SECTION 1. Section 1029 is added to the Labor Code, to read:1029. No private employer, regardless of the number of employees, shall terminate the employment of an employee if the sole reason for termination is that the employee tested positive on a drug test for a drug that is being used as a medication-assisted treatment under the care of a physician or pursuant to a licensed narcotics treatment program. |
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| 52 | | - | SECTION 1. Section 12926 of the Government Code, as amended by Section 3 of Chapter 58 of the Statutes of 2019, is amended to read:12926. As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:(a) Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.(b) Age refers to the chronological age of any individual who has reached a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h) Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.(i) Medical condition means either of the following:(1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.(2) Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:(A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or that persons offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(6) Nothing in this subdivision shall be construed to exclude, as an individual with a mental disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(k) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m) Physical disability includes, but is not limited to, all of the following:(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.(B) Limits a major life activity. For purposes of this section:(i) Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.(iii) Major life activities shall be broadly construed and includes physical, mental, and social activities and working.(2) Any other health impairment not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).(6) Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(7) Nothing in this subdivision shall be construed to exclude, as an individual with a physical disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(n) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).(o) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.(w) Race is inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.(x) Protective hairstyles includes, but is not limited to, such hairstyles as braids, locks, and twists. |
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| 42 | + | SECTION 1. Section 1029 is added to the Labor Code, to read:1029. No private employer, regardless of the number of employees, shall terminate the employment of an employee if the sole reason for termination is that the employee tested positive on a drug test for a drug that is being used as a medication-assisted treatment under the care of a physician or pursuant to a licensed narcotics treatment program. |
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| 58 | | - | 12926. As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:(a) Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.(b) Age refers to the chronological age of any individual who has reached a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h) Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.(i) Medical condition means either of the following:(1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.(2) Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:(A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or that persons offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(6) Nothing in this subdivision shall be construed to exclude, as an individual with a mental disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(k) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m) Physical disability includes, but is not limited to, all of the following:(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.(B) Limits a major life activity. For purposes of this section:(i) Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.(iii) Major life activities shall be broadly construed and includes physical, mental, and social activities and working.(2) Any other health impairment not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).(6) Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(7) Nothing in this subdivision shall be construed to exclude, as an individual with a physical disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(n) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).(o) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.(w) Race is inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.(x) Protective hairstyles includes, but is not limited to, such hairstyles as braids, locks, and twists. |
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| 48 | + | 1029. No private employer, regardless of the number of employees, shall terminate the employment of an employee if the sole reason for termination is that the employee tested positive on a drug test for a drug that is being used as a medication-assisted treatment under the care of a physician or pursuant to a licensed narcotics treatment program. |
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| 60 | | - | 12926. As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:(a) Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.(b) Age refers to the chronological age of any individual who has reached a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h) Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.(i) Medical condition means either of the following:(1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.(2) Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:(A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or that persons offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(6) Nothing in this subdivision shall be construed to exclude, as an individual with a mental disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(k) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m) Physical disability includes, but is not limited to, all of the following:(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.(B) Limits a major life activity. For purposes of this section:(i) Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.(iii) Major life activities shall be broadly construed and includes physical, mental, and social activities and working.(2) Any other health impairment not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).(6) Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(7) Nothing in this subdivision shall be construed to exclude, as an individual with a physical disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(n) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).(o) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.(w) Race is inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.(x) Protective hairstyles includes, but is not limited to, such hairstyles as braids, locks, and twists. |
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| 50 | + | 1029. No private employer, regardless of the number of employees, shall terminate the employment of an employee if the sole reason for termination is that the employee tested positive on a drug test for a drug that is being used as a medication-assisted treatment under the care of a physician or pursuant to a licensed narcotics treatment program. |
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| 62 | | - | 12926. As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:(a) Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.(b) Age refers to the chronological age of any individual who has reached a 40th birthday.(c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.(d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:Employer does not include a religious association or corporation not organized for private profit.(e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work.(f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:(A) The function may be essential because the reason the position exists is to perform that function.(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:(A) The employers judgment as to which functions are essential.(B) Written job descriptions prepared before advertising or interviewing applicants for the job.(C) The amount of time spent on the job performing the function.(D) The consequences of not requiring the incumbent to perform the function.(E) The terms of a collective bargaining agreement.(F) The work experiences of past incumbents in the job.(G) The current work experience of incumbents in similar jobs.(g) (1) Genetic information means, with respect to any individual, information about any of the following:(A) The individuals genetic tests.(B) The genetic tests of family members of the individual.(C) The manifestation of a disease or disorder in family members of the individual.(2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.(3) Genetic information does not include information about the sex or age of any individual.(h) Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.(i) Medical condition means either of the following:(1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.(2) Genetic characteristics. For purposes of this section, genetic characteristics means either of the following:(A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or that persons offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.(j) Mental disability includes, but is not limited to, all of the following:(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:(A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.(C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working.(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(6) Nothing in this subdivision shall be construed to exclude, as an individual with a mental disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(k) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.(l) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.(m) Physical disability includes, but is not limited to, all of the following:(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.(B) Limits a major life activity. For purposes of this section:(i) Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.(iii) Major life activities shall be broadly construed and includes physical, mental, and social activities and working.(2) Any other health impairment not described in paragraph (1) that requires special education or related services.(3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).(6) Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.(7) Nothing in this subdivision shall be construed to exclude, as an individual with a physical disability, an individual who does any of the following:(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use.(B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use.(C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs.(n) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).(o) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.(p) Reasonable accommodation may include either of the following:(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.(q) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.(r) (1) Sex includes, but is not limited to, the following:(A) Pregnancy or medical conditions related to pregnancy.(B) Childbirth or medical conditions related to childbirth.(C) Breastfeeding or medical conditions related to breastfeeding.(2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth.(s) Sexual orientation means heterosexuality, homosexuality, and bisexuality.(t) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.(u) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors:(1) The nature and cost of the accommodation needed.(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.(v) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code.(w) Race is inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.(x) Protective hairstyles includes, but is not limited to, such hairstyles as braids, locks, and twists. |
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| 52 | + | 1029. No private employer, regardless of the number of employees, shall terminate the employment of an employee if the sole reason for termination is that the employee tested positive on a drug test for a drug that is being used as a medication-assisted treatment under the care of a physician or pursuant to a licensed narcotics treatment program. |
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| 66 | | - | 12926. As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context: |
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| 67 | | - | |
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| 68 | | - | (a) Affirmative relief or prospective relief includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part. |
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| 69 | | - | |
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| 70 | | - | (b) Age refers to the chronological age of any individual who has reached a 40th birthday. |
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| 71 | | - | |
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| 72 | | - | (c) Except as provided by Section 12926.05, employee does not include any individual employed by that persons parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. |
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| 73 | | - | |
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| 74 | | - | (d) Employer includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows: |
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| 75 | | - | |
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| 76 | | - | Employer does not include a religious association or corporation not organized for private profit. |
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| 77 | | - | |
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| 78 | | - | (e) Employment agency includes any person undertaking for compensation to procure employees or opportunities to work. |
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| 79 | | - | |
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| 80 | | - | (f) Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position. |
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| 81 | | - | |
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| 82 | | - | (1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: |
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| 83 | | - | |
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| 84 | | - | (A) The function may be essential because the reason the position exists is to perform that function. |
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| 85 | | - | |
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| 86 | | - | (B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. |
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| 87 | | - | |
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| 88 | | - | (C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function. |
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| 89 | | - | |
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| 90 | | - | (2) Evidence of whether a particular function is essential includes, but is not limited to, the following: |
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| 91 | | - | |
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| 92 | | - | (A) The employers judgment as to which functions are essential. |
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| 93 | | - | |
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| 94 | | - | (B) Written job descriptions prepared before advertising or interviewing applicants for the job. |
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| 95 | | - | |
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| 96 | | - | (C) The amount of time spent on the job performing the function. |
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| 97 | | - | |
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| 98 | | - | (D) The consequences of not requiring the incumbent to perform the function. |
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| 99 | | - | |
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| 100 | | - | (E) The terms of a collective bargaining agreement. |
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| 101 | | - | |
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| 102 | | - | (F) The work experiences of past incumbents in the job. |
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| 103 | | - | |
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| 104 | | - | (G) The current work experience of incumbents in similar jobs. |
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| 105 | | - | |
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| 106 | | - | (g) (1) Genetic information means, with respect to any individual, information about any of the following: |
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| 107 | | - | |
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| 108 | | - | (A) The individuals genetic tests. |
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| 109 | | - | |
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| 110 | | - | (B) The genetic tests of family members of the individual. |
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| 111 | | - | |
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| 112 | | - | (C) The manifestation of a disease or disorder in family members of the individual. |
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| 113 | | - | |
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| 114 | | - | (2) Genetic information includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual. |
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| 115 | | - | |
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| 116 | | - | (3) Genetic information does not include information about the sex or age of any individual. |
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| 117 | | - | |
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| 118 | | - | (h) Labor organization includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection. |
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| 119 | | - | |
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| 120 | | - | (i) Medical condition means either of the following: |
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| 121 | | - | |
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| 122 | | - | (1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer. |
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| 123 | | - | |
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| 124 | | - | (2) Genetic characteristics. For purposes of this section, genetic characteristics means either of the following: |
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| 125 | | - | |
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| 126 | | - | (A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or that persons offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder. |
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| 127 | | - | |
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| 128 | | - | (B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or that persons offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder. |
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| 129 | | - | |
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| 130 | | - | (j) Mental disability includes, but is not limited to, all of the following: |
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| 131 | | - | |
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| 132 | | - | (1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section: |
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| 133 | | - | |
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| 134 | | - | (A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. |
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| 135 | | - | |
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| 136 | | - | (B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult. |
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| 137 | | - | |
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| 138 | | - | (C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working. |
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| 139 | | - | |
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| 140 | | - | (2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services. |
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| 141 | | - | |
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| 142 | | - | (3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part. |
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| 143 | | - | |
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| 144 | | - | (4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult. |
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| 145 | | - | |
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| 146 | | - | (5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2). |
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| 147 | | - | |
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| 148 | | - | Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. |
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| 149 | | - | |
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| 150 | | - | (6) Nothing in this subdivision shall be construed to exclude, as an individual with a mental disability, an individual who does any of the following: |
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| 151 | | - | |
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| 152 | | - | (A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use. |
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| 153 | | - | |
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| 154 | | - | (B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use. |
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| 155 | | - | |
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| 156 | | - | (C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs. |
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| 157 | | - | |
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| 158 | | - | (k) Military and veteran status means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard. |
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| 159 | | - | |
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| 160 | | - | (l) On the bases enumerated in this part means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status. |
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| 161 | | - | |
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| 162 | | - | (m) Physical disability includes, but is not limited to, all of the following: |
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| 163 | | - | |
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| 164 | | - | (1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: |
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| 165 | | - | |
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| 166 | | - | (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. |
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| 167 | | - | |
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| 168 | | - | (B) Limits a major life activity. For purposes of this section: |
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| 169 | | - | |
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| 170 | | - | (i) Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. |
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| 171 | | - | |
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| 172 | | - | (ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult. |
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| 173 | | - | |
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| 174 | | - | (iii) Major life activities shall be broadly construed and includes physical, mental, and social activities and working. |
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| 175 | | - | |
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| 176 | | - | (2) Any other health impairment not described in paragraph (1) that requires special education or related services. |
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| 177 | | - | |
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| 178 | | - | (3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part. |
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| 179 | | - | |
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| 180 | | - | (4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult. |
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| 181 | | - | |
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| 182 | | - | (5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2). |
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| 183 | | - | |
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| 184 | | - | (6) Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. |
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| 185 | | - | |
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| 186 | | - | (7) Nothing in this subdivision shall be construed to exclude, as an individual with a physical disability, an individual who does any of the following: |
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| 187 | | - | |
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| 188 | | - | (A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has been otherwise rehabilitated successfully and is no longer engaging in illegal drug use. |
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| 189 | | - | |
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| 190 | | - | (B) Is participating in a supervised drug rehabilitation program and is no longer engaging in illegal drug use. |
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| 191 | | - | |
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| 192 | | - | (C) Is erroneously regarded as engaging in illegal drug use but is not engaging in such use. However, it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in paragraph (A) or (B) is no longer engaging in the illegal use of drugs. |
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| 193 | | - | |
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| 194 | | - | (n) Notwithstanding subdivisions (j) and (m), if the definition of disability used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m). |
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| 195 | | - | |
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| 196 | | - | (o) Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics. |
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| 197 | | - | |
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| 198 | | - | (p) Reasonable accommodation may include either of the following: |
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| 199 | | - | |
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| 200 | | - | (1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. |
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| 201 | | - | |
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| 202 | | - | (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. |
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| 203 | | - | |
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| 204 | | - | (q) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed. |
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| 205 | | - | |
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| 206 | | - | (r) (1) Sex includes, but is not limited to, the following: |
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| 207 | | - | |
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| 208 | | - | (A) Pregnancy or medical conditions related to pregnancy. |
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| 209 | | - | |
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| 210 | | - | (B) Childbirth or medical conditions related to childbirth. |
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| 211 | | - | |
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| 212 | | - | (C) Breastfeeding or medical conditions related to breastfeeding. |
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| 213 | | - | |
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| 214 | | - | (2) Sex also includes, but is not limited to, a persons gender. Gender means sex, and includes a persons gender identity and gender expression. Gender expression means a persons gender-related appearance and behavior whether or not stereotypically associated with the persons assigned sex at birth. |
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| 215 | | - | |
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| 216 | | - | (s) Sexual orientation means heterosexuality, homosexuality, and bisexuality. |
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| 217 | | - | |
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| 218 | | - | (t) Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. |
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| 219 | | - | |
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| 220 | | - | (u) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors: |
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| 221 | | - | |
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| 222 | | - | (1) The nature and cost of the accommodation needed. |
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| 223 | | - | |
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| 224 | | - | (2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility. |
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| 225 | | - | |
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| 226 | | - | (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities. |
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| 227 | | - | |
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| 228 | | - | (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. |
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| 229 | | - | |
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| 230 | | - | (5) The geographic separateness or administrative or fiscal relationship of the facility or facilities. |
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| 231 | | - | |
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| 232 | | - | (v) National origin discrimination includes, but is not limited to, discrimination on the basis of possessing a drivers license granted under Section 12801.9 of the Vehicle Code. |
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| 233 | | - | |
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| 234 | | - | (w) Race is inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles. |
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| 235 | | - | |
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| 236 | | - | (x) Protective hairstyles includes, but is not limited to, such hairstyles as braids, locks, and twists. |
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| 237 | | - | |
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| 238 | | - | |
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| 239 | | - | |
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| 240 | | - | |
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| 241 | | - | |
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| 242 | | - | No private employer, regardless of the number of employees, shall terminate the employment of an employee if the sole reason for termination is that the employee tested positive on a drug test for a drug that is being used as a medication-assisted treatment under the care of a physician or pursuant to a licensed narcotics treatment program. |
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| 56 | + | 1029. No private employer, regardless of the number of employees, shall terminate the employment of an employee if the sole reason for termination is that the employee tested positive on a drug test for a drug that is being used as a medication-assisted treatment under the care of a physician or pursuant to a licensed narcotics treatment program. |
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