August 27, 2018
Author: Christopher Olmsted
OVERVIEW OF FMLA, CFRA AND PDL RIGHTS
A. Overview of FMLA/CFRA
1. Medical Leave
(a) Basic Requirements: Under the Federal Family Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”), a covered employer must provide an eligible employee up to 12 workweeks of leave during a 12-month period for a qualifying event.
(i) Covered Employer
CFRA: Employers who directly employ 50 or more employees, as well as public agencies regardless of the number of employees. Both full time and part-time employees are included, but independent contractors are excluded.
FMLA: Employers who are involved in an industry or activity “affecting commerce” and who directly employ 50 or more employees for at least 20 calendar workweeks in the current or previous year. An employer must include employees on paid and unpaid leave or disciplinary suspension, part-time employees and jointly employed employees.
Exceptions to the FMLA 50-employee rule: The legal entity that employs an employee normally is treated as the employer. One corporation will be considered a separate employer from another corporation unless it meets the integrated employer, joint employer or successor-in interest test.
• Where the “integrated employer test” applies, separate entities are deemed to constitute parts of a single entity. The employees of all the entities that make up the integrated employer will be counted in determining employer coverage and employee eligibility.
• A “joint employer relationship” can be illustrated where an employer uses 30 employees from a temporary help agency and 25 regular employees. The employee’s worksite is the primary employer’s office from which the employee is assigned. The primary employer is responsible for giving notice, providing leave, maintaining health benefits and restoring jobs for its employees. The secondary employer must comply with the FMLA provisions with respect to its regular employees and not interfere with the exercise of the temporary employee’s right to FMLA leave.
• A “successor-in-interest” steps into the shoes of the predecessor employer for FMLA coverage, regardless of whether the successor meets the FMLA threshold employee coverage criteria. It must count periods of employment and hours worked for the predecessor for purposes of determining eligibility for a leave.
(ii) Eligible Employee
• 12 month of service;
CFRA: Must have more than 12 months of service
FMLA: Must have provided at least 12 months of service (no need to be consecutive)
? The new rules clarify that if the employee has a break in service of more than seven consecutive years, the 12-month clock restarts.
Exceptions: (1) the employee’s fulfillment of military service obligations, or (2) an approved absence or unpaid leave for such purposes as child rearing or education if a written agreement or collective bargaining agreement states the employer’s intent to rehire the employee after the leave.
• Must have worked 1,250 hours1 during the 12 consecutive months immediately before the commencement of the leave, and
• Must work at a site with 50 or more employees (or within 75 miles of employee’s workplace).
o The 50 employee standard is determined when the employee gives notice of the need for leave.
o The 75-mile distance is measured in surface miles.
o If there is no fixed worksite, the “worksite” will be the site to which the employee is assigned as their home base, from which their work is assigned, or to which they report.
(iii) Reasons for Leave (Qualifying Event)
• Birth of a child, to care for a newborn;
• Placement of a child with the employee through adoption or foster care, and to care for that child;
• To care for the employee’s spouse, child or parent with a “serious health condition”;
• Because a “serious health condition” makes the employee unable to perform one or more of the essential functions of his/her job, including pregnancy disability;
• To care for an injured service member who is employee’s spouse, child, parent, or next of kin (up to 26 weeks);
o The FMLA regulations also define “next of kin” for this type of leave. This is the nearest blood relative, other than the service member’s spouse, parent, son, or daughter (because they are already entitled to leave for this purpose), in the following order of priority: blood relatives granted legal custody of the service member; siblings; and grandparents, aunts and uncles, and first cousins. However, a service member may instead designate in writing another blood relative as his or her nearest blood relative. When a designation is made, that person will be considered the only next of kin. When no designation is made and multiple family members have the same level of relationship, all will be considered next of kin and eligible for leave, either consecutively or simultaneously.
o Military caregiver leave is only available during a single 12-month period, which the new regulations state begins on the date an employee first takes leave to care for an injured service member.
o This leave entitlement is applied on a per-coveredservice member, per injury basis. This means that an employee may take more than one period of 26 workweeks of leave if the leave is to care for different covered service members or to care for the same service member with a subsequent serious injury or illness, except that no more than 26 workweeks of leave may be taken within any single 12- month period.
o If a leave qualifies both as military caregiver leave and leave to care for a family member with a serious health condition, the employer must designate it only as military caregiver leave.
• Because an immediate family member (spouse, son, daughter, or parent) is called to active duty in reserves or Nat’l Guard due to qualifying “exigency.”
New rules identify eight (8) types of qualifying exigency leave:
1. Short-notice deployment. This is when the call or order comes seven days or less before the deployment date. Leave taken to assist the military family member in preparing to be deployed can be used for up to seven calendar days beginning on the date a covered military member is notified of the impending call or order.
2. Military events and related activities. This is to attend any official military-sponsored ceremony, program, or event related to the active duty or call to active duty status of a covered military member. It is also for attending family support or assistance programs and briefings sponsored by the military, military service organizations, or the American Red Cross.
3. Child care and school activities. This is to make alternate child care arrangements for the military member’s child or to provide child care on an urgent, immediate-need basis, to enroll or transfer the child into a new school or daycare facility, or to attend meetings with the staff at a school or a daycare facility.
4. Financial and legal arrangements. This is to make or update financial or legal arrangements to address the covered military member’s absence, or to act as the military member’s representative before a federal, state, or local agency to obtain, arrange, or appeal military service benefits while he or she is on active duty or call to active duty status and for 90 days after active duty terminates.
5. Counseling. To attend counseling provided by someone other than a healthcare provider for the employee, or for the military member or his or her child (for example, family counseling provided by Veterans Affairs in the event a service member is killed or missing in action).
6. Rest and recuperation. To spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the deployment period. This leave may last up to five days for each instance of rest and recuperation.
7. Post-deployment activities. To attend arrival ceremonies, reintegration briefings and events, and any other official military sponsored ceremony or program for a period of 90 days after active duty status terminates. Leave can also be used to address issues that arise from the death of a military member while on active duty status, such as meeting and recovering the covered military member’s body and making funeral arrangements.
8. Other activities. FMLA leave may be taken for other reasons arising out of a call or order to active duty if the employer and employee agree that the leave qualifies as an exigency and agree on timing and duration.
• Birth of a child, to care for a newborn;
• Placement of a child with the employee through adoption or foster care, and to care for that child;
• To care for the employee’s spouse, child or parent with a “serious health condition”; or
• Because a “serious health condition” makes the employee unable to perform one or more of the essential functions of his/her job.
Exception under the CFRA: Any pregnancy-related disabilities are not a qualifying event and cannot be counted against the 12-week limitation on leaves under the CFRA. The protections of the Fair Employment and Housing Act applicable to pregnancy related disabilities are separate and distinct.
(iv) Amount of Leave Entitlement
• This leave may be up to 12 workweeks in a 12-month period.
o Exception- injured military member leave- up to 26 workweeks of entitlement.
• If both spouses work for the same employer, they are only entitled to 12- weeks jointly to care for a newborn.
o 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. But California law also prohibits discrimination against workers based on their marital status. So it’s best not to limit leave if both parents work for you, regardless of whether or not they’re married.
Otherwise, you could open the door to a marital-status bias lawsuit.
o Note, under FMLA 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.
12-Month Period Options
Under both federal and state law, an employer is permitted to elect one of four methods to establish the 12-month computation period. The options include:
o the calendar year;
o any fixed leave year of 12-months;
o the 12-month period measured from the date employee’s first leave begins; or
o a rolling 12-month period measured backward from date of any leave.
Special Rules for Births and Adoptions: Family care leaves for the birth or placement of a child for adoption or foster care are subject to special time limitations. The right to such leave expires at the end of the 12-month period beginning on the date the child’s birth or placement.
(v) “Serious Health Condition”
Definition: Illness, injury, impairment, or physical or mental condition that makes the employee unable to perform one or more of the essential functions of the employee’s position which involves either:
• Inpatient care in medical care facility, including period of incapacity or subsequent treatment; or
• Continuing treatment by a health care provider for any of the following:
o A period of incapacity of more than 3 consecutive days, and any subsequent treatment or period of incapacity relating to same, that involves either:
o Treatment 2 or more times by a health care provider, or
o Treatment by a health care provider on at least 1 occasion that results in a regimen of continuing treatment.
• Any period of incapacity due to pregnancy or for prenatal care;
• Any period of incapacity which is permanent or long term due to a condition for which treatment may not be effective;
• Any period of absence to receive multiple treatments by a health care provider either for restorative surgery or resulting in incapacity of more than 3 days.
Regulations: The FMLA regulations specifically identify some conditions that qualify as a serious health condition if they meet the guidelines set forth in the regulations.
• Alzheimer’s disease;
• Mental illness;
• Restorative dental or plastic surgery after an injury;
• Removal or cancerous growth;
• Substance abuse.
(b) Employee’s Obligation to Provide Notice of Need for Leave
(i) Leave for Birth of Child or Adoption
If leave is foreseeable, the employee must provide at least 30 days notice prior to start of leave. If there is less than 30 days prior to the need for leave, the employee must provide notice as soon as practicable.
(ii) Leave for Serious Health Condition
It may be either the employee’s own condition or a condition of the employee’s spouse, parent, or child.2 If leave is foreseeable, the employee must provide at least 30 days notice prior to start of leave and exert reasonable effort to schedule treatment to avoid disruption of business operations. If there is less than 30 days prior to the need for leave, the employee must provide notice as soon as practicable.
• “As soon as practicable” means:
• As soon as possible and practicable.
• At least one or two business days once employee knows of need for leave.
(c) Contents of Employee Notice
- Reason for leave
- Anticipated duration of the leave
- Anticipated date the leave will start
(i) Special rules for intermittent/reduced leaves or care of another.
Employer can request additional information including:
• Estimate of probable number of treatments;
• Interval between treatments;
• Actual or estimated dates of treatment;
• If leave is to care for another, can also ask for description of care to be provided by employee.
(ii) Methods of Notification
• Verbal notice is sufficient.
• An employer can require written notice.
• A spokesperson may be used if the employee is unable.
(iii) Effect of noncompliance with notification requirements
• An employer can waive notice requirements.
• An employer may delay the start of leave due to lack of proper notification only if it is clear employer satisfied posting requirements.
(d) Employer’s Obligations to Designate Leave and Provide Notice of Rights
(i) Posting Obligations
Employers are required to post in a conspicuous place a notice explaining provisions of the law and procedure to file complaints of violation. There is a potential penalty for willful noncompliance. See Addendum 5, Form WH-1420.
(ii) Written Notice Obligations
If written policies exist, they must include a policy containing information about FMLA rights and obligations of employee, such as:
• Employee eligibility
• Determining the 12-month period
• Reasons for taking leave
• Ways to take leave
• Notification of leave
• Initial medical certification
• Medical re-certification
• Return to work certification (FFD)
• Job restoration rights
• Pay status during leave
• Benefits protection
If no written policies exist, employer must provide written notice of employee rights and obligations no less than the first time in each six month period that an employee indicates a need for leave.
Mandatory Contents of Notice. To satisfy this requirement, an employer should use the Notice of Rights and Eligibility Form- WH-381. See Addendum 5. Alternatively, a document can be created advising of the following:
• Leave will count against annual 12-week entitlement
• Any medical certification requirement
• Any right to substitute paid leave
• Any duty to pay premiums
• Any fitness-for-duty requirement
• Whether employee is “key employee”
• Reinstatement rights
• Impact of failure to return to work on premium payments
Medical certification or fitness-for-duty obligations must be communicated each time need for leave is given unless the initial notice in the six-month period and other written policies clearly advise that medical certification or fitness-for-duty will be required. Failure to provide employee with notice of obligations as required precludes employer from taking any adverse action against employee for failure to comply with obligations.
(iii) Designation of Leave
According to the regulations an employer must designate leave within five (5) days of notice. However, failure to timely designate the leave does not extend the amount of leave available to the employee. Nevertheless, an employer should provisionally designate a leave as FMLA or CFRA leave until it receives the appropriate certification to determine whether the leave was designated properly. Forms have been created by the Wage and Hour Division. See Addendums 8, WH -382
(e) Health Care Provider’s Certification (See Addendums 7)
The employer must notify employee in writing each time a certification will be required unless the initial notice in the six-month period and other written policies clearly advise that medical certification will be required. Employer should make the request that the employee furnish certification when employee gives notice of need for leave or within two business days after receiving the request for leave. Certification must be authored by a “health care provider.” Certification will be sufficient if timely, written, and provides information required. A form has been created for each type of qualifying event. See Addendum 5, Forms WH-380 E, WH-380 F, WH-384, WH-385.
(i) Health Care Provider: under the FMLA is defined to mean (1) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which the doctor practices, or (2) any other person determined by the Secretary of Labor to be capable of providing health care services. Such persons include (i) podiatrists, dentists, clinical psychologists, and optometrists; (ii) nurse practitioners, nurse-midwives, and clinical social workers who are authorized to practice under state law; (iii) Christian Science practitioners listed with First Church of Christ Scientist in Boston, Massachusetts; (iv) chiropractors, insofar as the treatment consists of manual manipulation of the spine to correct subluxation demonstrated by X-ray; (v) any health care provider from whom the employer or its group health plan’s benefit manager will accept certification of the existence of a serious health condition to substantiate a benefits claim; and (vi) a health care provider listed above who practices and is authorized to practice in another country, and who is performing within the legal scope of such practice.3
(ii) Contents of Certification
- Statement of the serious health condition
- Summary of medical facts that support Certification
- Date the condition began and how long it will last
- Whether employee needs intermittent leave or reduced schedule4
- Duration and frequency of chronic condition or pregnancy
- Information on additional treatments
- Information on inability to perform job
Additional information for psychological or physical care of another
- Describe the type of care that will be needed: basic medical or personal needs, safety, transportation to and from treatment, or psychological comfort;
- Describe the type of care that will be provided by employee;
- Estimate of the duration of providing care;
- Approved Certification forms.
(iii) Timing to Provide Certification
If leave is foreseeable and at least 30 days notice is given, certification should be provided before leave. If leave is not foreseeable or less than 30 days notice given, certification must be provided within time frame requested, which must be at least 15 days after requested by employer unless it is not practicable despite good faith efforts. At the time the employer requests certification it must also advise employee of anticipated consequences of not providing or inadequate certification (e.g., delay of leave, denial of leave)
(iv) Requesting Re-certification
Subsequent requests for re-certification can be made if the appropriateness or the duration of leave are questionable. Where health care provider has certified minimum duration of incapacity is more than 30 days, cannot request until minimum duration has passed.
For pregnancy, chronic or permanent conditions, can request recertification no more often than every 30 days and only in connection with an absence, unless:
• Circumstances described in last certification have changed (e.g., duration, condition; complications), or
• Employer receives information casting doubt on validity. For intermittent leave, employer may request re-certification no more often than the minimum time specified on the certification, unless:
• Employer receives information casting doubt on validity.
Employee must provide re-certification within time frame requested, which must be at least 15 days after it is requested by employer unless it is not practicable despite good faith efforts. The cost for any re-certification must be paid by the employer.
(f) Subsequent Medical Opinions
Under the CFRA, the following is permitted if the leave is for the serious health condition of the employee only.
If employee provides a complete certification signed by a health care provider, the employer may not request additional information from provider, but the employer’s health care representative, with the employee’s consent, may seek clarification.
Where the employer has reason to doubt the validity of certification, a second opinion can be required at the employer’s expense.
Where the employer’s and the employee’s health care providers differ, a third opinion can be required at the employer’s expense. The health care provider must be jointly selected. The opinion is final and binding on both. Copies of Reports: Upon request, the employer must furnish a copy of an opinion to the employee within two business days. The employer can request a
Fitness For Duty report before allowing an employee to return to work if notice is given to the employee in advance.
(g) Substitution of Paid Leave Benefits
Employees wishing to substitute paid leave for unpaid FMLA leave must follow all policies applicable to an employer’s paid leave program.
• Vacation, Personal, and Sick Leave Benefits: 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.
• Holiday Benefits: The new FMLA rules differentiate between full-week and partial-week FMLA leave for the purposes of how holidays are computed into the leave calculation. If an employee takes a partial week of FMLA leave, and a holiday for which the employee would not otherwise be required to work falls within the partial week of leave, the holiday cannot be counted against the employee’s FMLA leave entitlement. If the employee takes a full week of FMLA leave that includes a holiday, the holiday can be counted against the employee’s FMLA entitlement.
• Public Employees: Under the 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.
(h) Affect on Health Insurance
During family medical leave, the employer must maintain the employee’s existing level of coverage under a group health plan, with the employee bearing the same financial responsibility as if the employee was not out on the leave of absence.
The employer can cut off group health insurance benefits if the employee is 30 days late with premium co-payment, if certain conditions are met. The employer must give 15 days advance written notice to employee regarding any impending termination of coverage.
If the employee returns to work, the employer must place the employee back on any group plan immediately.
If the employee does not return to work, the employer can get any premiums paid during the leave reimbursed unless the employee fails to return because the employee still has a serious health condition.
(i) Intermittent and Reduced Leave
Taking such leaves is subject to certain conditions, including compliance with advance notification and medical certification requirements.
“Intermittent” means leaves taken in separate blocks of time due to a single illness or injury, including periods ranging from one hour to several weeks. “Reduced schedule” means a leave schedule that reduces an employee’s usual number of working hours per workweek or workday.
The term “12 workweeks” means the equivalent of 12 of the employee’s normally scheduled workweeks. When the employee works an alternative work schedule or a schedule other than five days a week, the number of working days that constitute 12 workweeks is calculated on a pro rata or proportional basis.
(i) FMLA Rules: Employees are permitted to take leave intermittently or on a reduced leave schedule under some but not all circumstances. Employers are not required to provide intermittent leave or reduced leave schedules after the birth or adoption of child. The regulations also distinguish medical need from voluntary treatments and procedures.
(ii) CFRA Rules: Although the terms intermittent and reduced leave schedules are not used in the statutes, the statute states such leaves may be taken “in one or more periods” making it clear that leaves need not be taken in one continuous period of time. Intermittent or reduced leave is permitted if medically necessary due to a serious health condition. Such leaves because of birth, adoption or placement of a foster child must be taken for a minimum duration of two weeks.
(j) Right to Reinstatement
At the end of FMLA leave, an employer must take an employee back into the same or an equivalent job.
(i) Same or Equivalent Position: An employer must return an eligible employee to the position that he or she held when the leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions.
• To be considered an equivalent position, it must include: same privileges, prerequisites, status, at same or a geographically proximate worksite and must involve the same or substantially similar duties and responsibilities that entail the same or substantially similar skill, effort, responsibility and authority.
• The right to be reinstated exists even if the employee has been replaced or the position was restructured to accommodate the absence. Reinstatement is guaranteed at the time leave is granted.
(ii) Intent to return to work: An employer may require periodic reports on status and intent to return to work; any such policy may not be discriminatory and must consider facts related to each leave. If there is an unequivocal notice of intent not to return, the employer’s duty to maintain health care benefits and to reinstate end.
(iii) Fitness-for-Duty: As a condition for reinstatement, the employer can require an employee to provide medical certification that employee is able to resume work. ADA requirements of job-related and consistent with business necessity apply.
- The certification need only state the employee’s ability to return to work.
- The employee bears costs associated with report.
- The employer must inform the employee of the need for report at time it gives employee notice of rights and obligations of leave.
- An employer can delay reinstatement until the required report is submitted, unless the employer fails to provide proper notice of rights/obligations.
- There is no right to report from employee where intermittent leave is taken.
- Where employee is unable to return to work, the employer is permitted to obtain certification of the inability to return (failure to return entitles employer to reimbursement of premiums paid.)
- Pursuant to uniformly applied policy, if either fitness for duty or medical certification for inability to return due to a serious health condition is not provided by employee at conclusion of approved leave, the employee may be terminated.
(iv) Reinstatement Date: Reinstatement must occur by the specific date agreed upon at the time leave commences. Alternatively, if the reinstatement date differs from that originally agreed upon, the employee must be reinstated within two business days after providing notice to the employer of the readiness to return. In some cases, employees may enjoy legal protections beyond the 12-week period under other laws.
(v) Defenses to Reinstatement
Unavailability of position: An employee has no greater right to reinstatement than if he or she had been continuously employed during leave. An employer may deny reinstatement if it can show that the employee would not otherwise have been employed at the time reinstatement is requested (e.g., lay off, hired for specified term or project.)
Key-Employee exception: “Key employee” is defined as a salaried employee who is among the highest paid 10 percent of all salaried and nonsalaried employees employed by the employer within 75 miles of his or her worksite. The employee must be paid on a salary basis within the meaning of the FLSA’s exemption rules. The determination of key employee status is made at the time the employee notifies the employer of the need for leave.
• An employer may deny reinstatement to a key employee if (a) denial is necessary to prevent substantial and grievous economic injury to its operations; (b) employer notifies employee of intent to deny reinstatement on that basis at time employer determines such an injury would occur; and (c) in any case in which the leave has commenced, the employee elects not to return after receiving the notice.
• An employer must provide two types of written notice to key employees: (a) at time of leave, notice that they are a key employee and (b) as soon as employer determines, notice of possible consequences if the employer determines reinstatement will cause such grievous injury.
Lack of Certification of Ability to Return to Work (Fitness for Duty): An employer may require medical certifications verifying the employee is able to return from medical leave prompted by their own serious health condition. Pursuant to a uniformly applied policy, failure to provide fitness for duty report can result in delay of reinstatement.
Limitation for 12 Weeks for Permissible Purposes Expired The total amount of time available under the FMLA is 12 workweeks of leave during a 12-month period. An employee’s right to reinstatement will end if the employee fails to return to work at the conclusion of the 12-week period, unless protected by other leave laws. Also, an employee who fraudulently obtains leave from an employer is not protected by the reinstatement provision. Also, if an employee advises the employer that he or she does not have the intent to return to work, the right to continued leave or reinstatement will end.
2. Pregnancy Related Disability Leave
Pregnancy Disability Leave (“PDL”) is governed under a separate state statute providing employee’s additional rights for qualifying leave. It grants employees who are disabled due to pregnancy up to 4 months of unpaid leave.
(a) Who is Covered
California Government Code section 12945 applies to employers with 5 or more employees.5
(b) What are the Rights and Responsibilities
The protections under this law apply regardless of an employee’s length of service, position, employment status, or the existence of any written policy. Therefore, from the commencement of employment, a woman is eligible for this protected leave.
A woman qualifies for pregnancy disability leave if pursuant to a physician’s certification she is not able to perform the essential functions of her job due to her physical condition, including “morning sickness” and prenatal care.
California regulations (Cal. Code Regs. tit. 2, § 11035) provides: (f) A woman is “disabled by pregnancy” if, in the opinion of her health care provider, she is unable because of pregnancy to perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy's successful completion, or to other persons. An employee also may be considered to be disabled by pregnancy if, in the opinion of her health care provider, she is suffering from severe morning sickness or needs to take time off for: prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; childbirth; loss or end of pregnancy; or recovery from childbirth, loss or end of pregnancy. The preceding list of conditions is intended to be non-exclusive and illustrative only.
An employer may have a policy requiring a physician’s certification to verify any employee’s temporary disability, including pregnancy, which simply includes:
• date on which temporary pregnancy disability began,
• likelihood of length of disability, and
• a statement regarding the employee’s physical condition and functional limitations.
Length of Leave Available
An employer must provide a leave of absence for a reasonable period of time up to four months (17 1/3 weeks), so long as the woman is actually disabled by pregnancy. “Four month leave”, can be taken intermittently or on a reduced work schedule if medically advisable. It means the number of days the employee would normally work within four months. Note: California courts have ruled that additional leave, beyond the PDL provided 4 months, may be necessary as a reasonable accommodation under FEHA and the ADA.
If pregnancy disability leave is foreseeable, an employee is required to provide a thirty day notice to the employer from the date the lave will begin, along with an expected date of return. If the leave is unforeseeable, the employee must provide as much notice as possible to the employer. If the employer has certain notification requirements, they must be posted in a conspicuous place within an adequate time frame in order to hold the employee liable for failure to comply.
(c) Impact on Other Benefits
While the employee is on disability leave, she is still entitled to the following:
• health plans6;
• pension plans;
• retirement plans;
• accrual of seniority rights;
• unemployment benefit plans;
• employee benefits plans.
Employers must maintain the employee’s coverage for medical, dental, and vision health benefit plans during leave in the same manner as if the employee had never left, for up to a 17 1/3 week maximum period. (NEW- January 2012.) Generally, the premiums are paid for by a deduction from the employee’s paycheck. If paid leave is substituted for unpaid leave, the premiums will still be deducted in the same way. If unpaid leave is taken, payments will have to be made by the employee.
An employee must be notified in writing regarding the terms and conditions of premiums payments during the period of leave. If an employee fails to pay premiums for more than 30 days, the employer is no longer obligated to maintain the coverage. The benefits may not cease until after the employer provides a fifteen-day written notice of consequential termination for nonpayment by the employee.
An employer is not obligated to maintain health care benefits if:
• the employee does not return at all or in a timely fashion from PDL leave;
• the employment relationship would have terminated if the employee had not taken leave;
• the employee expressly states that she will not be returning to work after PDL leave.
Unless there are extreme circumstances or health conditions, an employer can recover premium payments made for an employee who does not return after qualifying leave.
Use of Paid Leave Benefits
The employee is free to use any accrued time off such as vacation or sick leave during the otherwise unpaid portion of her leave.
Also, the California Employment Development Department (EDD) has issued regulations that require employers provide written notice to employees who are placed on leave of absence regarding their right to unemployment insurance benefits. The rights are set forth in the DE 2320 pamphlet, which must be provided on or before the effective date of leave. Employees may also be eligible for State Disability Insurance Benefits during any unpaid leave as a result of pregnancy disability. These are set forth in the DE 2515 pamphlet, which must be provided within 10 days of an absence due to pregnancy.
(d) Reinstatement Rights
After expiration of pregnancy disability leave, the employee is entitled to reinstatement to the same or comparable position at work. The employee may request a guarantee in writing. A comparable position is one with the same duties, schedule and benefits. The employer does not have to reinstate the employee to same or comparable position if legitimate business reasons prevent reinstatement, or, preservation of the employee’s job would compromise business safety or efficiency.
Frequently Asked Questions
Q: What type of leave is an employee eligible for when she has a baby?
A: Pregnancy disability leave, federal FMLA, and state CFRA. The major difference between FMLA and CFRA, is that pregnancy is not considered a SHC under the CFRA. Therefore, CFRA may only be taken after the baby is born to care for the baby; Pregnancy disability leave can only be taken for the period of disability prior to and after the birth.
Q: What paperwork is needed?
A: NOW-the regulations require that PDL leave notice is provided to the employee as soon as employee advises of need for leave. AT TIME OF LEAVE-need to give FMLA notice within 2 days of request.
REQUEST FORM- can require employee to complete form, 30 days prior if foreseeable leave.
CERTIFICATION –completed by a health care provider if employer requires of other employees with disabilities. No second opinions are allowed!
Q: How much time can be taken?
A: Under PDL, only for period of disability due to pregnancy, birth or related conditions, up to maximum of 4 mos. Therefore, after birth, employee typically considered disabled for automatic 6 weeks. Under FMLA, pregnancy is a SHC, so from time disabled, and afterward to care for child, up to maximum 12 weeks. Under CFRA, no coverage for disability period, but up to 12 weeks to care for new child.
Q: Can employee get paid during her leave?
A: under PDL, with regard to vacation benefits, an employer cannot require the use of vacation, but must allow its use, if employee chooses. Under FMLA, can require or permit use. Comply with rule most beneficial to employee. Under PDL, sick benefits can be required or allowed to be used. FMLA rules the same. But, can require only if require other employees with disabilities to use.
1 The term “hours worked” does not include time paid but not worked, or unpaid leave of any type, or layoffs.
2 The employer is allowed to request documentation from the employee that confirms the family relationship.
3 “Health care provider” is defined under the CFRA to include an individual holding either a physician’s an surgeon’s certificate issued pursuant to the California Business and Professions Code, an osteopathic physician’s and surgeon’s certificate, or an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state, jurisdiction, or country who directly treats or supervises the treatment of the serious health condition It also includes any other person determined by the U.S. Department of Labor to qualify as a health care provider under the FMLA.
4 Under the FMLA employers are not required to provide intermittent leave or reduced leave schedule after the birth or adoption of child.
5 FEHA contains a narrow exception for certain religious organizations. The rules also vary between employers with 15 or more employees and those with fewer employees.
6 Since pregnancy disability leave qualifies for leave under FMLA, the same rules apply with respect to health insurance continuation of benefits.