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Transgender Workers Receive Protection Against Discrimination

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Archive: Nov 2017

Transgender Workers Receive Protection Against Discrimination

For many years, transgender employees did not enjoy the same protection against discrimination afforded to other employees. They experienced higher rates of unemployment and were more likely to be underemployed or earning less income when compared to the general population. This situation stems from lack of awareness and understanding by society toward the issues that face transgender individuals.

Employment Discrimination

Transgender individuals face unemployment at double the rate of the general population. Almost half of transgendered Americans currently qualify as underemployed and are four times as likely to earn less than $10,000 in a year.

When a transgender people apply for a job, they face unique problems that, when become discrimination, can prove difficult. They may have a legal name or gender on one document conflict with their driver’s license. If hired, they enter a workplace ill-prepared to accommodate them and a workforce wholly ignorant to or antagonistic toward them.

In addition, transgender individuals face problems getting accurate or updated documentation to fill many required documents for employment. Some employers may exclude them from health benefits that cover their basic health needs. If they do receive these benefits, the insurance may refuse to cover transition-related care. Employers often deny medical leave for this care simply because the care isn’t covered by the business’s regulations or they misclassify the care as a basic condition ineligible for leave. This forces transgender individuals to choose between losing their job or risking their health because they could not get necessary medical attention.

Equal Protection

California (CA) passed legislation in 2011 to amend the Fair Employment and Housing (FEH) Act (FEHA) to include transgender individuals. The law now bans discrimination in the work-center and has made illegal any kind of harassment that would result from an individual’s gender identity or expression.

In 2016, the CA Department of FEH issued instructions for workplaces where transgender individuals worked. These guidelines explained the use of restrooms by transgender employees, namely that they were free to use the restroom or locker room that matched the employee’s gender identity, not the gender they had at birth. They also recommended installation of individual-use unisex bathrooms for use by all employees so as to decrease the likelihood of a transgender worker being singled out.

The law bans employers from asking questions as a condition of employment that attempt to establish a person’s gender identity or sexual orientation, to include questions about gender, marital status, or the prospective employee’s body. The employer also may not compel an individual to wear clothing the employer believes is more appropriate to the employee’s gender identity. Dress codes at workplaces should apply across the board and not target LGBTQ+ individuals. Penalties for violating an employer’s dress code cannot target an individual or group more harshly than another.

Find Help for Transgender Discrimination

Transgender individuals face many difficulties simply trying to work for a living. Federal laws do not protect them from discrimination or harassment based on “gender identity.” However, CA law has stepped into this gap in an effort to provide these individuals equal protection and opportunity in the workplace environment. If you’ve faced discrimination based on your gender identity, contact a law firm with experience in these cases.

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What Is the California Family Rights Act?

Passed into law in 1993, the CFRA guarantees California (CA) residents time away from work to provide care for a qualifying individual without fear of losing their job. To help you understand the CFRA and how it applies to you, consider the following information and how it may help your claim.

What Is the CFRA?

Similar to the Family and Medical Leave Act (FMLA), the CFRA grants eligible workers up to 12 weeks away from work to provide care for a new child, either newborn, adopted, or fostered. The employee must use the leave during the first 12 months of the child joining the family. The CFRA allows employees to use the leave to care for themselves or family members when either has a serious medical condition.

An employee may not use CFRA leave instead of pregnancy leave (PDL), but the individual may ask to extend the PDL by adding CFRA leave on to the end of PDL. No serious medical condition needs to exist or result from the birth for a person to use CFRA leave to care for the newborn.

However, a woman who begins to experience a difficult pregnancy and needs to take leave prior to the birth to protect her health or that of her child is not eligible for using the CFRA leave unless she develops a serious medical condition that would have required time away from work. In this instance, she would apply for leave under the FMLA.

The employee does not receive pay from the employer during the 12-week leave unless the latter requires the former to use any earned vacation or leave, outside of sick leave. In that instance, the employer must pay wages to the employee. This remains true if an employee chooses to use earned vacation or other leave. All benefits earned as a condition of employment must remain in effect, including health or dental care, retirement plans, pension, or other insurance.

Eligible Employees

A CA employee working full or part time for a company operating in CA and that employs 50 or more workers qualifies for the CFRA. Certain public servants also retain some eligibility. Also, the employee must have 12 months or over 1,250 hours of work at the current employer and live within 75 miles of the place of employment. Serious health conditions that qualify for the CFRA leave include anything requiring in-patient care at a medical facility and ongoing medical care provided by a qualified medical profession.

Employers must provide the employee with the same job upon returning to work or find the individual a comparable position. The employee can request this in writing. Some circumstances do arise that allow the employer to not bring an individual back to work. If the company goes through a restructure, as an example, and the employee’s position ceases to exist, the employer does not have to bring the individual back to work. Any denial of reinstatement must be in writing, and the employer must make every effort possible to restore an employee to their previous job.

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Can I Take Family Medical Leave Act (FMLA) Time While on Workers’ Comp?

Many people experience illnesses or injuries that prevent them from working. To protect them from losing their job, employees can file for help from the FMLA and file for workers’ compensation. However, some people fail to understand how these programs function together and sometimes find themselves working for a company that takes advantage of that ignorance. When you understand these two programs, you can use them together to protect yourself and your job.

What Is FMLA and Workers’ Comp

The FMLA gives workers guaranteed time away from work to care for themselves in the event of a family related medical condition that precludes the employee from working, such as pregnancy, adoption, or foster care. Employers don’t pay workers during this time, but the employee’s job remains theirs.

Workers’ comp provides monetary compensation for time spent away from the job because of an injury sustained at work. This income may not exceed two-thirds of the employee’s weekly salary. The individual also receives payment for medical care up to a specific amount. They also retain all health benefits while on workers’ comp. State governments determine the amount of compensation an individual may receive.

Legal Requirements

No company may require an employee to make use of the FMLA if they must take time away to recover from an injury they received while at work. The company also bears the burden of making sure a worker receives all the benefits the employers owes them, including those from workers’ comp.

The U.S. Department of Labor states some employees may indeed be eligible for benefits under both programs simultaneously. In such circumstances, an employer must grant leave from work using whichever program affords the employee better rights and benefits. This requirement indicates an inherent limitation on the employer: they cannot force an employee to use one when the employer is obligated to give the employee the better option.

Application of FMLA and Workers’ Comp

If an employee receives workers’ comp, this time away from work does not reduce their entitlements under the FMLA. These two programs can function simultaneously, meaning absence from work due to a qualifying injury or sickness can count as FMLA leave. However, the employer must contact the employee in writing, explaining this.

Employer Actions

Employers must consider their costs when a worker must miss time from work. A worker may rightfully want to make use of workers’ compensation, but the employer could prefer FMLA. The FMLA absolves the employer of paying wages for time missed while requiring that all work benefits remain intact, like health or dental care. Workers’ comp requires the employer’s insurance to cover all expenses, potentially increasing what the employer will pay for the same insurance in the future. Where employers cross the line is when they discourage employees from filing for workers’ comp in favor of FMLA leave, as the law clearly states that employers should direct the employee to whichever gives the individual the best possible support.

If you find yourself injured while at work and needing to take family related medical time off, make sure you understand and take advantage of all the benefits available to you. If you believe your employer did not act in your best interest, contact a legal expert to explore options for receiving compensation.

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