employee leaves: how to handle the common time-off scenarios that come up again and again tuesday,...

Employee Leaves:How To Handle the

Common Time-Off ScenariosThat Come Up Again and Again

Tuesday, June 8, 2010Presented by the Employer Resource Institute

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About Our SpeakerMargaret J. Grover, Esq. practices employment law in the California-based firm Kronick Moskovitz Tiedemann & Girard.

She has represented and advised employers on all aspects of employment law for more than 25 years. Her areas of emphasis include personnel policies and procedures, human resources and employment consulting, workplace training and investigations, employment litigation, and alternative dispute resolution.

For several years, she has been named to the prestigious “Super Lawyer” list for Northern California.

A former law professor at the University of California at Berkeley, Grover is a frequent speaker and author on employment law issues. She earned her law degree from Case Western Reserve University.

[email protected]

www.kmtg.com

Employee Leaves:How To Handle the

Common Time-Off Scenarios That Come Up Again and Again

Margaret J. Grover, Esq.

Kronick Moskovitz Tiedemann & Girard

[email protected]

The Laws

Copyright 2010 BLR Inc.

The primary FEDERAL family/medical leave law:

The Family & Medical Leave Act (FMLA)29 USC 2601

The Laws


The primary CALIFORNIA family/medical leave law:

The California Family Rights Act (CFRA)CA Gov. Code Sec. 12945.1

The Laws


In addition, you must comply with a wide range of other laws and regulations in California that impact family and medical leave decisions to some degree. Examples include (but aren't limited to) the following:

• Pregnancy Disability Leave Act (PDLA)

• Paid Family Leave Program

• Family-School Partnership Act

• School Suspensions and Expulsions

• Domestic Violence and Sexual Assault Victims Leave

• Crime Victims Leave

• Time Off for Emergency Duties

• Family Military Leave

• Temporary Disability Leave

The Basics


WHICH EMPLOYERS ARE COVERED?

Federal

The FMLA affects private employers with 50 or more employees for each working day during each of 20 or more weeks in the current or preceding year. All public employers are covered, regardless of size. There are also special provisions for teachers and other instructional employees of public and private elementary and secondary schools.

California

The CFRA covers "any person who directly employs 50 or more persons to perform services for a wage or salary." In addition, the CFRA covers the state and its political subdivisions – cities, counties, public entities, etc. – regardless of the number of employees.

The Basics


WHICH EMPLOYEES ARE COVERED?

Federal

Employees eligible for leave are those who have worked for at least 12 months for the employer from whom leave is requested, and for at least 1,250 hours during the 12 months immediately preceding the start of the leave.

California

To be eligible for CFRA coverage, a full- or part-time employee must have worked for the employer for at least 12 months, for at least 1,250 hours for the previous 12 months, and work at a worksite that employs at least 50 employees within a 75-mile radius.

The Basics


WHICH FAMILY MEMBERS ARE COVERED?

Federal

Beyond the employee himself or herself, FMLA leave applies to caring for a spouse, child (whether the child is the employee’s naturally born, adopted, or foster-placed), or parent.

California

The CFRA follows the same "child" definition as FMLA. "Parent" includes a biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when he or she was a child. Unlike FMLA, CFRA also allows leave to care for a registered domestic partner or child of a registered domestic partner with a serious health condition. Therefore, it may be possible for an employee to take CFRA leave that does not count against his or her entitlement under FMLA.

The Basics


WHICH REASONS FOR TAKING LEAVE ARE COVERED?

Federal

FMLA allows eligible employees to take up to 12 workweeks for leave during any 12-month period for these reasons:

• The birth of a child or the placement of a child with the employee for adoption or for foster care

• To care for a spouse, son, daughter, or parent with a serious health condition

• The employee's own serious health condition• Any qualifying exigency arising out of the fact that the spouse or a son,

daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the armed forces.

The Basics


WHICH REASONS FOR TAKING LEAVE ARE COVERED?

California

Under CFRA, a family leave may be taken for the same events as those allowed under FMLA, except that California's family leave law does not provide for a leave for the employee's own serious health condition when it is caused by pregnancy, childbirth, or a related medical condition. Leave for pregnancy-related disabilities is covered by the California Disability Leave Act.

Under the CFRA, the state-qualifying leave runs concurrently with leave taken under the federal FMLA (except for state pregnancy disability leave). The state leave's 12-month period begins running on the day FMLA leave begins.

Common Scenarios


PARENTS CLAIMING FAMILY/MEDICAL LEAVE

Under FMLA, spouses employed by the same employer are jointly entitled to a combined total of 12 workweeks of family leave for the birth or care of a newborn, or the placement of a child for adoption or foster care, and to care for a parent who

has a serious health condition. Note that each parent is entitled to a separate 12 weeks of FMLA leave to care for a child with a serious health condition, even if they both work for the same employer.

However, California rules say that, if both parents – whether married or not – work for you, you can limit their combined family leave for the birth, adoption, or foster placement of a child to a total of 12 weeks in a 12-month period. Confusingly, California law also prohibits discrimination against workers based on their marital status! So, it's best generally not to limit leave if both parents work for you, regardless of whether they're married. Otherwise, you could open the door to a marital-status bias lawsuit.

Common Scenarios


PREGNANCY DISABILITY LEAVE

Under FMLA, pregnancy or prenatal care generally falls within the definition of a "serious health condition" - an illness, injury, impairment, or physical or mental condition that triggers the ability of an employee to take family and medical leave. A visit to the healthcare provider is not necessary for each absence. Leave for foster care or adoption may begin before the birth or adoption if an absence is necessary for the placement or adoption to proceed. The new rules also permit a husband (not a boyfriend or fiancé) to take FMLA leave to care for a pregnant spouse who is incapacitated because of her pregnancy.

However, California has its own statute – the Pregnancy Disability Leave Act (known as PDLA) – that entitles a woman to take up to four months of leave for disabilities caused by pregnancy or childbirth. (So, California workers may not take additional leave under FMLA for pregnancy-related disabilities.) A woman in California is entitled to up to 12 weeks of family leave to care for the newborn child. In the end, that means a worker could take up to 29 weeks total in combined pregnancy disability leave and California family leave.

Common Scenarios


EMPLOYEES CLAIMING INTERMITTENT LEAVE

Under some circumstances, employees may take FMLA leave intermittently – in short blocks of time or by reducing their normal weekly or daily work schedule. Intermittent leave is always permitted for medical problems, whether to care for a seriously ill family member or for the employee’s own serious health condition. If FMLA leave is for the birth or care of a newborn or the placement of a child for adoption or foster care, intermittent leave is subject to your approval.

In California, however, employees can take intermittent leave for the birth or care of a newborn or the placement of a child for adoption or foster care. Generally, you don’t have to allow “baby bonding leave” that is less than two weeks long, but you do have to grant up to two requests for shorter leave.

Common Scenarios


EMPLOYEES CLAIMING INTERMITTENT LEAVE

The new rules provide that an employee taking intermittent leave for planned medical treatment must make a “reasonable effort” (the old FMLA rules said “attempt”) to schedule the treatment so that it doesn’t disrupt the employer’s operations, subject to the health provider’s approval.

When tracking intermittent leave and counting it against an employee’s FMLA entitlement, employers can use whatever time increment applies to other types of leave, as long as the increment is no greater than one hour. In other words, an employer can count FMLA and other leave in one-hour increments, even though the employer’s payroll system tracks employee time in, for example, 6- or 15-minute increments.

Common Scenarios


DOMESTIC PARTNERS

CFRA allows employees to take leave to care for a registered domestic partner; FMLA does not. This means that an employee who takes leave to care for a registered domestic partner is taking CFRA leave only, and this leave cannot be deducted from the employee's FMLA entitlement.

As a result, the employee will be entitled to take 12 weeks of FMLA leave to care for himself or herself or a nondomestic partner family member, and that CFRA leave taken to care for the domestic partner is additional CFRA leave. The total leave entitlement, then, could be more than 12 weeks.

Common Scenarios


PAID TIME OFF USAGE (SUBSTITUTING PAID LEAVE)

You can usually require an employee to use accrued vacation or other paid time off as part of his or her family leave. Under the new rules, all paid time off (PTO) is treated the same, whether it’s offered as paid vacation time, sick leave, or personal leave under the employer’s policy.

It’s sometimes hard to tell whether paid time off should be counted as family leave. Federal rules allow employers to inquire why vacation or other paid leave is being taken. But California law says you can’t ask unless the employee is requesting

sick leave. However, if someone volunteers information that indicates that the time is for family leave purposes, you can inquire further.

Under the new rules, public employees governed by the federal Fair Labor Standards Act (FLSA) can substitute paid compensatory time off for unpaid FMLA leave. In California, this applies only to federal employees or employees not covered by CFRA.

Common Scenarios


MEDICAL CERTIFICATIONS

Under FMLA, employers are permitted to request medical certification of the need to take leave for the employee’s own serious health condition or the serious health condition or serious illness or injury of a covered family member. Under the new FMLA regulations, an employer may utilize DOL certification forms (WH-380E and WH-380F) designed for this purpose, or the employee may choose to comply with the certification requirement by providing the employer with an authorization, release, or waiver allowing the employer to communicate directly with the employee’s or the family member’s healthcare provider. The employee may not be required to provide such an authorization, release, or waiver.

In California, you should NOT use the standard DOL forms for medical certification that allow doctors to indicate an employee's diagnosis, because California law does not permit employers to obtain this information (unless the employee consents).

We've included in today’s handout a California-specific certification form that you can use.

Common Scenarios


SECOND (MEDICAL) OPINIONS

Whenever the employer has reason to doubt the validity of the original certification, the employer is allowed to require a second opinion - paid for by the employer - from a healthcare provider chosen by the employer. This healthcare provider may not be someone who is employed on a regular basis by the employer.

In fact, you may require a worker to obtain a third opinion (again, at your expense) when the second opinion differs from the first. The healthcare provider for the third opinion should be approved by both the employer and the employee. This third opinion is considered to be final and binding on both the employer and the employee.

However, California doesn't permit you to ask for a second (or third) opinion on the need for leave when the medical certification is for an immediate family member and the certificate submitted was complete.

Special Issues


California’s Paid Family Leave (PFL) Program

With the Paid Family Leave Program (PFL), California has become the first state to provide paid time off for workers to provide care for a child, spouse, parent, or domestic partner with a serious health condition, or to bond with a new child (newborn, adopted, or foster care child). PFL allows most California workers to receive up to a 55 percent wage replacement benefit for 6 weeks in a 12-month period. PFL benefits are not available for the employee's own medical condition. PFL does not create leave entitlement or provide job protection. The law applies to all employers with one or more employees.

Special Issues



PFL provides payments to employees who take time off from work to:

• Bond with a newborn child, newly adopted child, or newly placed foster child up to the age of 18. Bonding must occur within 1 year of the birth, adoption, or foster care placement. Both parents are entitled to receive PDL for bonding.

• Provide physical care, psychological comfort, or to arrange for third-party care of a seriously ill family member. Family members include a spouse, registered domestic partner, parent, and child, regardless of whether they live in the state. For the purposes of PFL, family members do not include nonregistered domestic partners, grandparents, aunts or uncles, or the child or parent of a spouse or registered domestic partner.

Special Issues



Employees are eligible for this leave immediately upon employment, subject to a 7-day waiting period and the employer's vacation policy. Under PFL law, an employer can require an employee to use up to 2 weeks of available vacation time before receiving PFL. The first week of vacation satisfies the 7-day waiting period. An employee who is simultaneously taking FMLA/CFRA has the right to use vacation time whether or not the employer requires it. The required 7-day waiting period does not need to be taken 7 days in a row. For example, if care were provided 1 day per week, the 7-day waiting period would be served over a 7-week period. Benefits are payable once the 7 days have been served and all other eligibility criteria are met.

PFL runs concurrently with the FMLA, CFRA, and California's pregnancy disability rules for eligible employees with qualifying conditions. As discussed above, unpaid time off with job protection is available under the federal FMLA, the CFRA, and the PDLA/FEHA. Continued health benefits are guaranteed under the FMLA and the CFRA but not under PFL.

Special Issues


Interplay of the Federal and California Leave Laws

The federal FMLA has the same general purpose as both the CFRA and the PDLA: providing job-protected leaves for employees to attend to serious family responsibilities.

The federal FMLA and California CFRA originally differed in a number of ways, causing confusion among employers about the interplay between the two laws. California addressed this problem by amending the CFRA to bring it largely into conformity with the federal FMLA (except for the provisions on pregnancy disability leave; see discussion following). The changes to the state CFRA mainly involve the amount and types of leave available, the definitions of eligible employer and eligible employee, and healthcare coverage.

It is crucial to know and understand the requirements of all of the family and medical leave laws effective in California (i.e., the FMLA, the CFRA, and the PDLA) and to apply them individually to each situation as it arises.

Special Issues


Interplay of the Federal and California Leave Laws

Note: The CFRA regulations expressly incorporate the older (1995) version of the FMLA regulations. When the federal FMLA regulations were revised in 2009, the state CFRA regulations were not changed to incorporate the 2009 changes.

Therefore, the "old" FMLA regulations will still govern the interpretation of the CFRA on any point on which the CFRA regulations are silent or not designed to address a specific set of circumstances.

The practical result is that on issues that are covered by the CFRA, employers must determine whether the new FMLA regulations or the CFRA regulations provide greater protection or benefit to the employee.

Also, you must exercise caution in gauging how these common leave requests discussed today might have ADA or FEHA accommodation implications as well. Consult your employment counsel for more details.

Other Common Scenarios


EXHAUSTED LEAVE

What happens when a worker has used up his/her leave allotment (including both FMLA/CFRA/related leave time, as well as paid time off), but still needs to be out due to illness, injury, or another serious reason?

• Offer additional unpaid leave or some type of medical leave.

• Another option is terminating the employee and letting him/her reapply when able to return to work (be aware of ADA/FMLA/worker’s compensation issues).

• Always look at the broader picture in these situations, and seek legal counsel. You want to make sure you’re not discriminating in any way.



MILITARY LEAVE

In October 2009, President Obama signed the National Defense Authorization Act of 2010 that included several amendments to the FMLA's military leave provisions that greatly expanded the availability and applicability of these leaves.

Qualifying exigency leave (giving employees paid time off to tend to matters affecting their family members on military duty) now applies to your workers whose family members are service members in the regular armed forces (i.e., career military service) who are deployed to another country. Previously, this leave applied primarily to cases of family members serving in the National Guard or Reserves.



MILITARY LEAVE

The latest FMLA regulations list eight types of exigency leave:

• Short-notice deployment

• Military events and related activities

• Child care and school activities

• Financial and legal arrangements

• Counseling

• Rest and recuperation

• Post-deployment activities

• "Other activities"



MILITARY LEAVE

Two major changes were made in the FMLA military leave rules governing "caregiver" leave:

This type of leave is now available to your eligible employees caring for a family member who's a veteran of the regular armed forces, National Guard, or Reserves (not just family members who are current service members). This leave may be requested within five years of the date that the service member undergoes covered medical treatment, recuperation, or therapy (and it may be taken intermittently, since it revolves around medical activity.)

Also, this leave is now available for any aggravation of an existing or preexisting injury or illness incurred in the line of duty while on active duty. (In the past, the rules excluded such aggravations.)



USERRA LEAVE

Complying with the Uniform Services Employment and Re-employment Rights Act of 1994 (USERRA) is not difficult, but you must understand the basic requirements involved:

• The law covers all employers, regardless of size, and it applies to full-time workers, part-time workers, seasonal/temporary workers, probationary employees, and applicants.

• If the employee/applicant is called up for duty under federal law, USERRA applies. If the individual is called up instead under state law, you must review the applicable state's laws.

• USERRA provides many protections for these service members, from re-employment rights and protections against discharge to seniority rights and benefits upon re-employment.



USERRA LEAVE

• USERRA does not require employees to use any particular type of notice when telling you they're leaving for duty - and, you may not ask for a copy of their military orders.

• You do not have to pay employees while they're on military leave, but in some instances you may have to continue their health insurance benefits (with the employees paying the premiums, basically).

• You may not require employees to use earned vacation or other paid leave for USERRA-covered leaves - but the employees may ask to do so.

• Generally, USERRA allows employees to take up to five years of leave for military service.

• Active duty time counts toward eligibility to take time off from work under FMLA.

Sample Forms and Policies


We’ve posted several California-friendly materials that you may use to deal with common leave issues:

• A sample workplace policy written specifically for California employers that complies with both FMLA and CFRA rules

• A sample medical certification form that California employers should use in lieu of the DOL certification forms

If you have questions about these samples (included with your handout) or California family and medical leave policies and forms in general, please pose them during the webinar or send an email to Maggie at [email protected]!

Questions?

Margaret J. Grover, Esq.

Kronick Moskovitz Tiedemann & Girard

1350 Treat Blvd., Suite 105

Walnut Creek, CA 94597

925.395.2380 (phone)

925.395.2381 (fax)

[email protected]

www.kmtg.com



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