July 16, 2018

Family Medical Leave Act (FMLA)/ California Family Rights Act (CFRA)

I. Purpose:

a. Provide covered employees unpaid, job-protected leave for specified family and medical reasons and continuation of health insurance. See 29 USC § 2601 et seq.; Gov.C. § 12945.2.

II. Covered Employees:

a. 1 year of service with employer (does not have to be continuous); and
b. 1250 hours worked in the year; and
c. Employer must have 50 or more employees within 75 miles.

III. Reasons for Leave:

a. “Serious health condition” of the employee, child, spouse, or parent.
b. Birth of a child.
c. Adoption or foster care of child.

IV. Serious Health Condition Defined:

a. “An illness, injury, impairment, or physical or mental condition” including:
i. Inpatient care in a hospital, hospice, or residential medical care facility; or
ii. Continuing treatment by a health care provider. See 29 CFR 825.800

V. Duration & Benefits:

a. Up to 12 weeks unpaid leave in a 12 month period.
b. Leave is unpaid unless available paid time off is taken and/or unless disability benefits are available (see section on PFL and SDI).
c. Employers may force employees to use accrued vacation.
i. Unless for pregnancy disability leave in CA.

d. Employer must maintain health plan benefits for an employee.
i. However, if employee does not return to work, employee can get reimbursed for its contributions to benefit plans.

e. Under both FMLA & CFRA there must be reinstatement to same or equivalent position
i. Exception: “key employees.”

VI. Calculating Leave Year:

a. Employer may choose how to calculate the leave.
i. However, method used must the same for all employees.

b. Employer options:
i. Calendar year;
ii. Any fixed 12 month period (e.g. employee’s start date);
iii. 12 month period measured from the time FMLA leave is first taken; or
iv. 12 month period measured backward from the date an employee uses FMLA leave.

VII. Intermittent Leave:

a. FMLA/CFRA provide for intermittent leave.
b. Intermittent leave defined: leave taken in separate blocks of time due to a single qualifying reason.
c. Available when “medically necessary.”
i. Serious health condition of employee, covered family members, or service member (FMLA only).
d. Size of Increments:
Employer can limit leave increments to shortest period of time its payroll system uses to account for absences.  See CFR 29 825.205

VIII. FMLA/CFRA Distinctions To Be Careful of:

a. Pregnancy:
i. FMLA: Considered a “serious illness.”
ii. CFRA: Not covered. However, employee will likely be entitled to PDL.
b. Same-Sex Partners: (New Change!):
i. FMLA: According to the Dept. of Labor, spouse now means a “husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including same-sex marriage.”
ii. CFRA: Covered; treated like a spouse.
c. Military Service:
i. FMLA: Covers “qualifying exigency” b/c employee’s spouse, son, daughter or parent is on covered active military duty. “Qualifying Exigency” short-notice deployment, military events and related activities, etc.
ii. CFRA: Not covered.
d. Care for an Injured/Ill Service Member:
** Complex and detailed statute. Good idea to consult with counsel.
i. FMLA: The spouse, child, parent, or next of kin of service member may take 26 weeks of leave to care for them.
ii. CFRA: Only if family member is spouse, child, or parent. CFRA not used for broader “next of kin.” Note that Paid Family Leave (“PFL”) recently was amended to include time off to care for a seriously ill grandparent, grandchild, sibling or parent-in-law, but PFL only is wage replacement, not protected leave.

Americans with Disabilities Act (ADA) & Fair Employment and Housing Act (FEHA)

I. Reasonable Accommodation:
a. If an employee is “disabled” within the meaning of the ADA or FEHA, the employer may have an obligation to provide the employee with a leave of absence under those statutes as a reasonable accommodation. See 42 USC § 12101 et seq; Gov.C. § 12900 et seq.
b. Disability under ADA/FEHA: any physical or mental condition that (“substantially” under ADA) limits a major life activity.
c. Can offer alternative accommodation if available. ** Treating a disabled employee differently in providing leave can be disability discrimination.

II. Disabled Family Members:

a. ADA/FEHA provisions on reasonable accommodation apply only to job applicants and employees. They do not require employers to provide nondisabled employees with accommodations to enable them to care for disabled family members.
b. But the employee may be entitled to care leave under FMLA/CFRA.
c. Associational Discrimination: An employer may be liable for discrimination because an employee or applicant is associated with a person who is disabled under ADA or FEHA (e.g. the employee has a disabled child). See Rope v. Auto-Chlor Sys. of Washington, Inc., 220 Cal. App. 4th 635 (Cal. Ct. App. 2013)

California Pregnancy Disability Leave (PDL)

I. Covered Employees:
a. Applies to employers with 5+ employees. See Gov.C. § 12945.

II. Employee Eligibility:

a. Unlike FMLA & CFRA, an employee is eligible from the first day of employment for PDL.
b. Use for pregnancy, child birth, employee’s own related medical condition.

III. Duration:

a. An employee can be eligible for up to 4 months of leave.

IV. PDL Provides employees with:

a. Job protection
i. Must be reinstated to same position.
b. Benefits.
c. Protection from retaliation & discrimination.

V. FMLA/PDL/CFRA: How Do They Work Together:

a. PDL & FMLA run concurrently.
b. PDL & CFRA do NOT run concurrently
i. Usually CFRA starts when PDL ends.
c. For a normal pregnancy generally:
i. 4 weeks before birth of FMLA.
ii. 6 weeks after birth for PDL (8 weeks for C-sections).
iii. Maybe entitled to leave as a reasonable accommodation under ADA/FEHA if she is disabled by pregnancy and has run out of other leave.
d. PDL & FMLA run concurrently.
e. PDL & CFRA do NOT run concurrently (CFRA typically starts when PDL ends).
f. 4 weeks prior to birth, 18 weeks after normal delivery, no complications.

Other California Medical Leaves

I. Alcohol & Drug Rehabilitation Leave

a. 25 + employees. See Lab.C. § 1025 et seq.
b. Reasonable accommodation leave to attend Alcohol/Drug rehab.
c. ADA/FEHA may apply as well.
i. Drug addiction and alcoholism are recognized disabilities.

However, current use of illegal drugs (including medical marijuana) is not protected.
ii. No accommodation if the employee is unable to perform an essential duty of his or her job.

II. Organ/Bone Marrow Donors Leave

a. 15 + employees. See Labor Code § 1508 et seq.
b. Must provide:
i. Paid leave up to 30 days for organ donors.
ii. Paid leave up to 5 days for marrow donors.
iii. Employees can use PTO.

III. Family Sick Leave (Kin Care)

a. Employees can use accrued sick leave to care for a sick child, parent, spouse or domestic partner. See Lab.C. § 233(a).
b. 50% of accrued sick leave can be used for this purpose.
c. Does not need to be a serious illness.
d. Runs concurrently for FMLA-/CFRA-qualified leaves.

IV. Paid Family Leave (PFL)

a. An employee may be entitled to 6 weeks of wage replacement when an employee is on leave to care for a sick or injured child, spouse, parent, grandparent, grandchild, sibling, or domestic partner, or leave to bond with a new child. See Cal. Unemp. Ins. Code § 3300.
b. Employers can require employees use up to 2 weeks of vacation leave/PTO prior to getting PFL benefits.
*** The law has recently been amended to include: “grandparent, grandchild, sibling.” Goes into effect January 1, 2014.

V. State Disability Insurance (SDI)

a. An employee may be entitled to up to 52 weeks of wage replacement for an employee’s own illness/injury (usually non-work related).
b. Illness or injury- physical or mental, including any illness or injury resulting from pregnancy, childbirth, or related medical condition. Cal. Unemp. Ins. Code § 2626.
c. An employee cannot collect both SDI and PFL at the same time.
d. CFRA/FMLA/PDL: run concurrent with PFL & SDI.
e. While an employee maybe entitled to up to 52 weeks of wage replacement, they are only entitled to job protections while under PDL/CFRA/FMLA.

VI. California Worker’s Compensation Leave Laws

a. An employee who suffers a work-related injury cannot be discharged, or in any way discriminated against because they have exercised rights under worker’s compensation laws, including leave to recover. See Lab. C. § 132a.
i. However, an employer does not have to reemploy unqualified employees, employees for whom positions are no longer available, or when the employee cannot perform the job without risk of either reinjury or further injury. See County of San Luis Obispo v. Workers' Comp. Appeals Bd. (App. 2 Dist. 2005) 34 Cal.Rptr.3d 690.
ii. Employer must reasonably believe that the worker is permanently disabled from performing a job, or will be disabled for such a long time that termination is necessary in light of demonstrated business reality. See Barns v. Workers' Comp. Appeals Bd. (App. 1 Dist. 1989) 266 Cal.Rptr. 503.
iii. California courts have rejected the “business reality” defense absent medical evidence to support alleged concern. See. Id. ** Remember, that an employee returning from worker’s comp. leave will likely still be entitled to reasonable accommodations under the ADA/FEHA. Consult with counsel before terminating or modifying an employee’s job.

San Francisco Leave Laws

I. San Francisco Paid Sick Days Ordinance

a. Begins accruing 90 days after the employee’s first day of work. See S.F. Admin. Code §12W.8(a).
b. 10+ employees = must provide up to 9 sick days.
c. Less than 10 employees = must provide up to 5 sick days.
**Consult with counsel to make sure there are no conflicts between FMLA, CFRA, SF Sick Day Ordinance, and your company’s vacation policy.


II. SF Family Friendly Workplace Ordinance

a. New citywide ordinance: operative on January 1, 2014.
b. Gives San Francisco-based employees the right to request a flexible work arrangement and protections against discrimination/retaliation for making such a request.
c. Gives employers with San Francisco-based employees the right to refuse for “bona fide business reasons.”
d. Creates a whole new set of procedures and potential pitfalls for employers.
e. Potentially costly penalties for violations
f. What Employers are covered by the law?
i. Any employer who regularly employs 20 or more “Employees” (includes employees supplied to employer by a staffing agency).

g. What “Employees” are covered by law?

i. Any person employed in the geographic boundaries of the City (City and County) by an “employer,” including part-time workers.
ii. Employed for six months or more and working at least eight hours per week on a regular basis.

h. What Does The Law Provide?

i. Employees have a “right to request” a flexible/predictable work arrangement in order to assist with certain family caregiving responsibilities for:

1. A child or children of the employee;
2. A person or persons with a serious health condition in a “family relationship with the employee;” or
3. A parent age 65 or older of the employee.

ii. Potential “flexible work arrangements” include flexible schedules, reduced hours, job-sharing, telecommuting options, and more!
iii. Employers must consider such requests and have the right to deny such requests for “legitimate business reasons.”
iv. Employers are prohibited from restraining, interfering or taking other adverse action against employees for requesting flexible/predictable work arrangements.
v. Protected activity includes request, request for reconsideration, complaints, telling others about rights.

i. The Process

i. Eligible employee must make written request specifying:

1. The arrangement sought;
2. The date employee requests arrangement be effective;
3. Duration of proposed arrangement; and
4. How the request is related to caregiving responsibilities.
ii. Within 21 days, employer must meet with employee to discuss request.
1. Employer may require verification of caregiving responsibility.
iii. Within 21 days of that meeting, Employer must consider and respond to request. (Deadline may be extended by mutual agreement, in writing).
iv. Employer grants or denies request.
1. If granting, employer must confirm “work arrangement” in writing for employee.

2. If denying, employer must explain in writing: (1) the bona fide business reason for the denial, (2) the employee’s right to request reconsideration, (3) and must include specific language from the ordinance related to bona fide reasons for rejection.

v. Employee may request reconsideration of denial within 30 days, in writing.
vi. Employer must schedule another meeting with employee regarding reconsideration within 21 days of request.
vii. After second meeting, employer must inform employee of “final decision” within 21 days of the second meeting and must explain (again) the bona fide reasons for denial.
viii. Either employer or employee may revoke “work arrangement” with 14 days written notice.

1. If employer revokes, Employee may request alternate schedule and Employer must follow earlier process of meetings and written decisions.

j. What you should be doing now?

i. Post notice in English, Spanish, Chinese and any language spoken by at least 5% of workforce. (Available by 1/1/14).
ii. Train HR and supervisors on the law, particularly the request and meeting process.
iii. Establish policies and procedures for handling and responding to requests in a timely fashion.
iv. Maintain records related to requests and responses (minimum 3 years).

k. Penalties, Pitfalls and Concerns

i. Office of Labor Standards Enforcement (“OLSE”) may investigate violations of the law and may hold hearings. Caveat: “Agency’s finding of a violation may not be based on the validity of the Employer’s bona fide business reason for denying” request. Agency review is limited to employer’s “adherence to procedural, posting, and documentation requirements.”
ii. BUT, agency can also investigate claims of retaliation/discrimination…
iii. OLSE may order “any appropriate relief,” though warnings and notices to correct may be issued in the first 12 months.
iv. Thereafter, penalties for a violation will be $50/day for each day employer violated an employee’s rights.
v. OLSE may also order an employer to pay the City $50/day for each employee for which a violation is found “for the costs of investigating and remedying a violation.”
vi. Only review of a City’s final decision is a CCP Section 1094.5 writ of mandate.
vii. All of the written evidence from the request and reconsideration process.
viii. Potential privacy concerns related to “verifying” need for request.
ix. New Cause of Action for plaintiffs?
x. The City may pursue violations and may seek all legal and equitable relief including, reinstatement, back pay, benefits, liquidated damages, and attorneys’ fees.
xi. Wrongful termination in violation of public policy?
xii. Retaliation?

1. Labor Code Section 1102.5 recently expanded to include whistleblower protections for reports alleging a violation of a local rule or regulation.