getting a handle on employee leave

GETTING A HANDLE ON EMPLOYEE LEAVE

John P. Boggs, Esq.Fine, Boggs & Perkins LLP

2450 S. Cabrillo Hwy., Suite 100Half Moon Bay, California 94019

(650) [email protected]

San Francisco San Diego Fresno Long Beach Las Vegas



Presenter

• If you have questions during the presentation, please submit them using the “Questions” feature

• Questions will be answered at the end of the webinar

Questions

TYPICAL TYPES OF LEAVE- VACATION (PAID), PAID TIME OFF (PTO OR PDO)- SICK LEAVE (PAID AND UNPAID)- MILITARY LEAVE (non-FMLA)- FLOATING HOLIDAY (PAID)- CIVIC DUTY LEAVE (E.G. JURY DUTY, WITNESS DUTY, VOTING LEAVE)- UNPAID FAMILY SCHOOL PARTNERSHIP LEAVE- PREGNANCY DISABILITY LEAVE OF ABSENCE (non-FMLA, PAID OR UNPAID)- FAMILY LEAVE (non-FMLA, UNPAID OR PAID)- LEAVE FOR VICTIMS OF FELONY CRIMES - LEAVE FOR VICTIMS OF DOMESTIC VIOLENCE & SEXUAL

ASSAULT- TIME OFF FOR EMERGENCY DUTIES- BEREAVEMENT LEAVE- ALCOHOL/DRUG REHABILITATION LEAVE- PERSONAL LEAVE OF ABSENCE (OTHER)- FAMILY AND MEDICAL LEAVE ACT (AND STATE LAW EQUIVALENT)- WORKER’S COMPENSATION INJURY/ILLNESS LEAVE- DISCRETIONARY MEDICAL LEAVE (non-FMLA for ADA)

VACATION (PAID), PAID TIME OFF (PTO OR PDO)• MUST ACCRUE FOR EACH DAY WORKED

• NO USE IT OR LOSE IT POLICIES (maximum accrual okay with reasonable time to use it)

• MUST PAY OUT ACCRUED BUT UNUSED VACATION AT TIME OF SEPARATION

• FLOATING HOLIDAYS AND SICK LEAVE MAY BE CONSIDERED VACATION TIME

SICK LEAVE (PAID AND UNPAID)- CAN BE USE IT OR LOSE IT – IF LIMITED TO SICKNESS/INJURY OF EMPLOYEE OR UP TO ½ OF ALLOTTED SICK LEAVE FOR THE CARE OF A PARENT, CHILD OR SPOUSE (REGISTERED DOMESTIC PARTNER)

- BE CAREFUL OF TRANSFORMING IT TO VACATION BY ALLOWING USE FOR OTHER CIRCUMSTANCES

- USUALLY RUN ON A CALENDAR OR ANNIVERSARY DATE– DOES NOT ACCRUE

- GOOD THING FOR SALARY-EXEMPT MANAGERS

MILITARY LEAVE (NON-FMLA)- Under USERRA, an employee may take a maximum of 5 years' leave for

military service. Five years is the maximum cumulative length of absence for all absences with that employer, not with previous employers (38 USC 4312(a)(2)).

- There are limited exceptions to the 5-year limit, which may increase the maximum leave time allowed. These exceptions include service that is required beyond 5 years to complete an initial period of obligated service; the time consumed by trouble in obtaining release from service; the time for necessary training; and the time an employee is ordered to stay in active duty under certain federal laws (38 USC 4312(c)).

- The 5-year period includes only the time the employee spends actually performing service in the uniformed services. A period of absence from employment before or after performing service in the uniformed services does not count against the 5-year limit (20 CFR Part 1002.100).

- Depending on the specific circumstances, including the duration of service, the amount of notice received, and the location of the service, the employee may need additional time to rest or to arrange affairs and report to duty (20 CFR Part 1002.74).

MILITARY LEAVE (NON-FMLA)- USERRA prohibits an employer from denying any initial employment,

reemployment, retention in employment, promotion, or any benefit of employment to an individual on the basis of his or her membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services.

- It also prohibits an employer from retaliating against an individual by taking any adverse employment action against him or her because the individual has exercised his or her USERRA rights, testified in connection with a proceeding under USERRA, or assisted in a USERRA investigation.

- USERRA requires that upon returning from service, members of the armed services and its reserve components must be reinstated to their private civil jobs without loss of seniority or benefits and without any break in service for pension purposes (38 USC 4301 et seq.).

- The law protects military personnel, including those who perform weekend drills, summer encampment, or similar types of training duty. The employer is obliged to reschedule the worker, if possible, to avoid conflicts between work and reserve or Guard training so the employee may work a full week.

FLOATING HOLIDAYS

MAY BE TREATED AS VACATION PAY IF NOT LIMITED TO ACTUAL LEGALLY-RECOGNIZED HOLIDAYS

CIVIC DUTY LEAVE (E.G. JURY DUTY, WITNESS DUTY, VOTING LEAVE)

Jury duty. An employer may not discharge or otherwise penalize an employee who is called to serve as a juror provided the employee gives the employer reasonable notice before taking time off (CA Lab. Code Sec. 230).

Court appearance. An employer may not discharge or otherwise penalize an employee, including, but not limited to an employee who is a victim of a crime, for taking time off to appear in court in response to a subpoena or other court order as a witness in any judicial proceeding. Likewise, an employer many not discharge or otherwise penalize an employee who is a victim of domestic violence or sexual assault for taking time off to obtain relief, including a restraining order or other injunctive relief, to help ensure the health, safety, or welfare of the victim or of his or her child (CA Lab. Code Sec. 230). Any employer that violates these provisions may face criminal prosecution and be ordered to reinstate the employee with back pay.

Time off to Vote. Under California law, if employees don't have sufficient time to vote in a statewide election outside of working hours, they're entitled to enough paid time off from work so that, when added to the voting time available outside of working hours, they are able to vote. Unless the employer and employee mutually agree otherwise, time off must be scheduled at the beginning or end of the regular work shift, whichever allows the most free time for voting and the least time off from work. No more than 2 hours can be taken without a loss of pay. If the employee knows or has reason to believe that time off will be necessary to be able to vote on election day, the employee must give the employer at least 2 working days' notice that time off for voting is desired (CA Elec. Code Sec. 14000).

UNPAID FAMILY SCHOOL PARTNERSHIP LEAVE

- An employee who is a parent, guardian, or grandparent having custody of a child in grades K through 12 or attending a licensed daycare facility is entitled to take off a total of 40 hours each year (no more than 8 hours per month) to participate in activities of the child's school or day care.

- The employee must give the employer reasonable notice and must use existing vacation, personal, or compensatory time, if any, for purposes of the planned time off.

- An employee also may use time off without pay for this purpose, to the extent made available by his or her employer.

- The provision covers employers with 25 or more employees at the same location

- If both parents of a child are employed by the same employer at the same worksite, the entitlement to leave applies only to the parent who first gives notice to the employer. The other parent may take a planned absence only if he or she obtains the employer's approval for the requested time off.

PREGNANCY DISABILITY LEAVE- Pregnancy disability leave in California is governed by the Pregnancy Disability Leave Act (PDLA), which amended the California Fair Employment and Housing Act.

- Leave time. The PDLA requires that employers with 5 or more employees grant a woman a pregnancy disability leave (PDL) of a "reasonable period of time" up to 4 months, which equals the total number of days the employee would normally work within a 4-month period (depending on her actual period of disability). PDL may be taken on an intermittent schedule when medically advisable, as determined by the healthcare provider. The leave may be taken during pregnancy and before or after birth, as needed.

- Qualification. The employee must actually be disabled.

- No length of service requirement. There is no length of service or hours worked requirements for an employee to qualify for PDL.

PAID FAMILY LEAVE (non-FMLA)- Paid Family Leave Program (PFL) provides 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). 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.

- PFL funding. In order to fund the PFL program, a family temporary disability insurance program has been set up within the state disability insurance program, funded entirely by workers' contributions. Only workers who pay into the state disability insurance system will be eligible for PFL. 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.

PAID FAMILY LEAVE (non-FMLA)- Employees are eligible for this leave immediately upon employment,

subject to a 7-day waiting period and the employer's vacation policy.

- An employer may 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.

- Filing for PFL. Employees must complete and submit an EDD claim form to EDD in order to receive PDL benefits. Generally, the employee must submit a claim within 49 days from the date that family leave began (unless extended by EDD for good cause). Depending on the reason for leave, the employee may be required to also submit a bonding certification form, a care recipient's authorization to disclose health information, a statement of care recipient, or a doctor's certification form. The employee must also authorize his or her employer to disclose all facts concerning employment to the EDD.

PAID FAMILY LEAVE (non-FMLA)- Exceptions. Employees are ineligible for PFL if they are currently receiving SDI, unemployment insurance, or workers' compensation benefits.

- If the employee takes paid sick leave (considered to be wages by the EDD) at the same time he or she claims PFL, the employee cannot receive a combined total that is more than 100 percent of his or her normal wages.

- Finally, an employee is not eligible for PFL if another family member is able and available to provide care for the period of time that the employee claims he or she is needed to provide care.

- Note: The EDD will certify up to three individuals who are able and available to provide care for the same recipient in any given 24-hour period (8 hours each) but will not provide PFL for two individuals who simultaneously provide care for an individual.

PAID FAMILY LEAVE (non-FMLA)- PFL interaction with other leave laws. PFL runs concurrently with the

FMLA, CFRA, and PDL 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 PDL/FEHA.

- Continued health benefits are guaranteed under the FMLA and the CFRA but not under PFL.

- Income replacement benefits are available in California under the state Disability Insurance program, the PFL program, and for pregnancy/childbirth under both SDI and PDL sequentially.

- Bonding leave: PFL and SDI. In the case of female employees taking leave for bonding after the birth of a child, the employee may apply for PFL benefits as soon as she has recovered from pregnancy-related disability and is no longer receiving SDI benefits. There is no additional 7-day waiting period for a PFL claim for benefits to bond with a newborn when the PFL claim follows the SDI pregnancy-related claim.

LEAVE FOR VICTIMS OF CRIME- SEXUAL CRIMES. An employer with 25 or more employees may not

discharge or in any way discriminate or retaliate against an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to attend to crime-related injuries, to obtain services or counseling or to participate in programs.

- OTHER CRIMES. Under this law, employers must allow any employee who is a victim of a crime, an immediate family member or registered domestic partner of a victim, or the child of a registered domestic partner of a victim, to take leave from work to attend judicial proceedings related to that crime.

- Notice and certification. An employee must give his or her employer reasonable notice of the employee's intention to take time off under this law, unless advance notice is not feasible.

- When an employee takes an unscheduled absence, the employer cannot take any action against the employee as long as the employee provides certification to the employer within a reasonable time after the absence.

TIME OFF FOR EMERGENCY DUTIES- Employers may not discharge or discriminate against an employee for

taking time off to perform emergency duties as a volunteer firefighter, a reserve peace officer, or emergency rescue personnel.

- An employee who is a volunteer firefighter and who Works for an employer employing 50 or more employees must be permitted to take up to 14 calendar days per year in order to engage in fire-fighting or law enforcement training (CA Lab. Code Sec. 230.3, Sec. 230.4).

BEREAVEMENT LEAVE- NOT REQUIRED BY LAW

- SUBJECT TO EMPLOYER’S POLICIES

- CAN BE PAID OR UNPAID

- CAN LIMIT THE SCOPE OF THE FAMILY TO WHOM IT APPLIES

ALCOHOL/DRUG REHAB LEAVE- California law requires employers with 25 or more employees to reasonably accommodate any employee who wishes to voluntarily enter an alcohol or drug rehabilitation program, provided the accommodation does not place an undue hardship on the employer.

- California employers must continue to comply with this rehabilitation requirement, even though the ADA does not consider drug abuse a disability and does not require rehabilitation for drug abusers (BUT IT DOES FOR ALCOHOLISM).

- This law does not prohibit employers from refusing to hire, or discharging employees who, because of the employee's current use of alcohol or drugs, is unable to perform his duties or cannot perform his duties safely.

- Employers must also make reasonable efforts to safeguard the privacy of any employee enrolled in a treatment program.

- While employees are entitled to use accrued sick leave to participate in a program, the law does not require employers to provide time off with pay for rehabilitative treatment (CA Lab. Code Sec. 1025et seq.).

UNPAID PERSONAL LEAVE- NOT REQUIRED BY LAW

- SUBJECT TO EMPLOYER’S POLICIES

- CAN BE PAID OR UNPAID

- CAN LIMIT THE SCOPE OF THE WHOM IT APPLIES BUT NOT DISCRIMINATORY APPLICATION

California Workers’ Compensation ActWorkers’ Compensation emphasizes:

1. What employees cannot do by focusing on the nature and percentage of their disability...

2. . . . so as to provide suitable compensation for lost earnings...

3. . . . resulting from a work-related injury.4. Prevent discrimination

LEAVE PERIOD HAS NO SPECIFIC TIME PERIOD

Workers’ Compensation

• Any employee who suffers an injury during the course and scope of their employment

• A physical or mental injury which causes disability or need for medical treatment. Can be specific, cumulative, or occupational disease.

• An employer may not make pre-employment inquiries into an applicant's Workers' Compensation history, the existence of a disability, or the nature or severity of a disability, whether on application forms, in job interviews, or in background or reference checks.


• An employer may not make any medical inquiry or conduct any medical examination before making a conditional offer of employment.

• Firms hired to conduct background checks are agents of the employer. The employer is responsible for the actions of its agents and may not do anything through its agents that it could not itself do directly.


Family and Medical Leave Act FMLA is concerned with:

1. Providing a minimum level of unpaid, job-protected leave to eligible employees;

2. Covering those who suffer from a serious health condition; and

3. Protecting those employees from adverse treatment because of the need for leave.

Family and Medical Leave Act

The Family and Medical Leave Act ("FMLA") entitles eligible employees to job-protected, unpaid leave:

1. for the birth of a child, to care for a newly-born child, or placement of a child with the employee for adoption or foster care;

2. to care for an immediate family member (spouse, child, or employee's parent) with a serious health condition; or

3. because of the employee's serious health condition which makes the employee unable to perform the functions of the employee's job.

Family and Medical Leave Act

1. Are you a Covered Employer?– 50 employees in a 75 mile radius

• Integrated Employer• Joint Employer• Corporate lines don’t control

Three Questions to Ask Under the Family and Medical Leave Act

2. Is the employee a Covered Employee?– 1250 hours worked in the last 12 months– 12 months worked for the Employer

• Consecutive months or stints of employment not required– Used less than 12 weeks of leave in the last 12 months


3. Is the condition a Covered Condition?– Serious Health Condition or Pregnancy/Child Birth

• For oneself or to care for an immediate family member• To Bond with a new child (biological, adopted or foster)


Coverage and Eligibility

Q. How is 12 month period for determining whether employee has taken the permitted 12 weeks calculated if no written policy?

A. Calendar vs. Rolling 12-month period—whichever gives employee the most rights.

1250 Hour Eligibility Requirement• Do you count vacation and sick time???

• Period of employment through temp agency???

• Disciplinary suspension????

Serious Health Condition?

An illness, injury, impairment, or physical or mental condition that involves one or more of the following:

1. Hospital care;2. Absence plus treatment3. A permanent/long-term (chronic)

Condition requiring supervision;4. Multiple treatments for non-

Chronic conditions, or;5. Pregnancy

• Employee must specify?

• Multitude of unrelated illnesses combined?– Ear Infections?– Respiratory Infections?– Flu/Food Poisoning?– Internal Bleeding?– Ulcers?

What is a Serious Health Condition?

Family Leave• For the birth of a child, to care for a newly-born

child, or placement of a child with the employee for adoption or foster care.

• To care for an immediate family member (spouse, child, or employee's parent) with a serious health condition.

What is a child?

• Under 18 years of age OR over 18 years of age and incapable of self-care

• Because of a mental or physical disability

• Biological, adopted, foster child, stepchild, legal ward, child of domestic partner, in loco parentis

FMLA vs. CFRA

• Under FMLA, pregnancy is a serious health condition

• Under CFRA, pregnancy is not a serious health condition.

PREGNANCY

• Result is that a pregnant employee gets:• Up to 4 months of pregnancy leave due to pregnancy

or pregnancy-related disability• Up to 12 weeks of leave under FMLA as pregnancy

is a serious health condition• Up to 12 weeks of leave after the baby is born for

“bonding” purposes.• YES, that’s up to a total of 7 months of leave.

What is a spouse?

• Domestic partner?

• Legally separated?

• Putative spouse?

FMLA Military Leave

• The employee must have worked for the employer for 12 months or 52 weeks. The 12 months or 52 weeks need not have been consecutive. Separate stints of employment will be counted, provided that a break-in-service does not exceed 7 years.

FMLA Military Leave

• Separate stints of employment will be counted for breaks in service of 7 years or longer if the break in service is due to National Guard or Reserve military obligation or written agreement reflecting an employer’s intention to rehire the employee after the break-in-service.

FMLA Military Leave• A qualifying exigency arising out of the fact that your

spouse, son daughter or parents on active duty or call to active duty status in support of a contingency operation as a member of the National Guard or Reserves.

FMLA Military Leave• Qualifying exigency for FMLA leave may fall within

these categories: (1). Short notice deployment (up to 7 days leave); (2) Military events and related activities; (3) Childcare and school activities; (4) Financial and legal arrangements; (5) Counseling; (6) Rest and recuperation (up to 5 days leave per event); (7) Post-deployment activities; and (8) Additional activities not encompassed in the other categories, but agreed to by the employer and employee.

FMLA Military Leave

• Employees requesting this type of FMLA leave must provide proof of the qualifying family member’s call-up or active military service before leave is granted.

• To care for a covered service member who is your spouse, son daughter, parent or next of kin with a serious injury or illness incurred in the line of duty on active duty (up to 26 weeks of leave in a single 12 month period).

FMLA Military Leave

• This leave may extend to up to 26 weeks in a 12-month period for an employee whose spouse, son, daughter, parent or next-of-kin is injured or recovering from an injury suffered while on active military duty and who is unable to perform the duties of the service member’s office, grade, rank or rating. Next-of-kin is defined as the closest blood relative of the injured or recovering service member.

FMLA Military Leave

• Employees requesting this type of FMLA leave must provide certification of the family member or next-of-kin’s injury, recovery or need for care. This certification is not tied to a serious health condition as for other types of FMLA leave. This is the only type of FMLA leave that may extend an employee’s leave entitlement beyond 12 weeks to 26 weeks. Other types of FMLA leave are included with this type of leave totaling the 26 weeks.

FMLA Military Leave

When can you use the key employee exception?

Pretty much never.KEY EMPLOYEE EXCEPTION

• Top 10% of all wage earners• Must give leave anyway• Do not have to reinstate if would cause substantial and

grievance economic injury to reinstate– not to grant the leave.

What if the Employee Won’t Return the Health Care Provider Certification?

• Reasonable period of time of not less than 15 days - what’s that?

• What action can you take against the employee?– Deny the leave retroactively?

• What happens to the leave?– It becomes absence without approved leave.

Certification of Health Care Provider Form

• Employee/Patient Condition

• Health Care Provider Information

• Additional Employee Information

American with Disabilities Act• A qualified individual with a disability who, with or without

reasonable accommodation, can perform the essential elements of the employee’s job

• A physical or mental impairment that substantially limits one or more of the employee’s major life activities. A record of such an impairment. Or being regarded as having such an impairment.

• Interactive process

• Provide a Reasonable Accommodation– Discretionary Medical Leave, for example.

Definitions Overlap and Conflict

ADA –Disability is not always FMLA serious health condition.

FMLA – A serious health condition is not always ADA disability.

Employees on Workers’ Comp Disability may not be covered by ADA or FMLA.

Temporary impairments are not covered by the ADA.

FMLA and Workers’ Comp Conflicts

• Employees injured on the job under the Worker’s Compensation provisions may still be eligible for FMLA leave.

• Employees on Workers’ Comp must be put on FMLA leave -- just as if they were on a non-work related injury medical leave

• Employees on FMLA leave are entitled to have their health insurance covered for the first 12 weeks of Workers’ Comp, then they should be put on COBRA if your Health Plan is governed by ERISA.

• An available light duty position must be considered as a form of reasonable accommodation under the ADA.

• Workers' Compensation gives employers the option of providing light duty, but it is not required. The system encourages employers to provide light duty by financially penalizing those who do not.

• Yet FMLA prohibits employers from requiring employees to return to light duty positions during their 12-week protected period.

FMLA and Workers’ Comp Conflicts

Reminders

• FMLA and Workers’ Comp may run concurrently

• Avoid tacking leaves

• Make sure the employee has received written notice re: FMLA designation

• Rely on medical opinions

• Make sure FMLA poster is displayed

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that fortifies your legal protection!

Compliance Through Forced Process

FREE ATTORNEY TIME!!!

QUESTIONS?

QUESTIONS?


2450 S. Cabrillo Hwy., Suite 100Half Moon Bay, California 94019


San Francisco San Diego Fresno Long Beach Las Vegas

getting a handle on employee leave

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