CALFORNIA FAMILY RIGHTS ACT (CFRA) FEDERAL FAMILY AND MEDICAL LEAVE ACT (FMLA)

Transcription

1 CALFORNIA FAMILY RIGHTS ACT (CFRA) FEDERAL FAMILY AND MEDICAL LEAVE ACT (FMLA) Serious Health Condition (SHC) Pregnancy Disability Leave (PDL) Disability and Reasonable Accommodation (ADA) Workers Compensation Injury (WCI) Perceived Disability/Regarded as having a disability Religion Department of Fair Employment & Housing Tina Walker, Regional Administrator of the Employment Division of the California Department of Fair Employment and Housing

2 Relationship Diagrams (CFRA) (FMLA) (PDL) (FEHA/ADA) (WCI) CFRA/FMLA basics PDL basics FEHA/ADA basics FEHA, ADA to the rescue! WCI - Not a protected Activity under FEHA

3 LATER HALF Second - Basic Definitions requirements Third FEHA and ADA BEST PRACTICES & REMEDY!

4 FMLA and CFRA #1 FMLA CFRA CFRA & FMLA usually run concurrently 4

5 FMLA and CFRA #2 FMLA CFRA Sometimes they do not run concurrently 5

6 PDL #3 PDL up to 4 months Up to 4 months of PDL Cp has to actually be disabled from pregnancy or intermittent use for appointments and sick related to qualify for PDL If Cp only disabled (including appointments and sick) for 2 only months, then that is all she is entitled to 6

7 FEHA/ADA #4? NO TIME CONSTRAINT Essential functions - Can Cp perform essential functions of the job with or without accommodations. If no, then what? 7

8 Workers Compensation Injury 8

9 Religion & Disability RAMADAN REQUIRED FASTING, WHICH LEAD TO FATIGUE, CONFUSION, & LACK OF FOCUS FOR THE EMPLOYEE! 9

10 CFRA, FMLA, PDL, WCI, &FEHA/ADA Interrelation 10

11 FMLA, CFRA, & FEHA/ADA 1A FMLA SHC ADA? POSSIBILITY CFRA SHC CFRA & FMLA usually run concurrently, However, If FMLA/CFRA is exhausted and Cp is still unable to return to work due to their own SHC, Rp must engage in interactive process to determine if additional leave should be granted as a reasonable accommodation 11

12 FMLA, CFRA, & FEHA/ADA #2A FMLA other than SHC CFRA for own SHC ADA? POSSIBILITY Sometimes they do not run concurrently FMLA was for exigency CFRA is for own serious health condition If CFRA exhausted and still unable to return to work, Rp must engage in interactive process to determine if additional leave should be granted as a reasonable accommodation. 12

13 FMLA, CFRA, & PDL #3A PDL up to 4 months CFRA 12 weeks FMLA 12 weeks FMLA pregnancy is a serious health condition, thus they run concurrently CFRA pregnancy is not a serious health condition, thus they do not run concurrently. Total of approximately 7 months between both leaves 13

14 FMLA, CFRA, PDL, & ADA PDL 4 months is up, but baby still not born FMLA 12 weeks ADA? POSSIBILITY, if Rp not granting CFRA prior to birth CFRA 12 weeks FMLA pregnancy is a serious health condition, thus they run concurrently CFRA pregnancy is not a serious health condition, thus they do not run concurrently. CFRA (In connection to Pregnancy) - is usually used for baby bonding, however, an employer can choose though not obligated - to grant the Cp use of CFRA for pregnancy, if Cp needs it. Even if Rp chooses not to allow CFRA use before birth, ADA should be considered 14

15 FMLA,CFRA, PDL, & FEHA/ADA PDL & no other leave PDL, but not eligible to CFRA, then ADA added PDL, then CFRA PDL, ADA then CFRA added - Diagram in 4A in previous slide PDL, CFRA, then ADA For all Scenarios, you Must also determine which leave Cp is returning from, because that is the one that governs: PDL CFRA/FMLA ADA reasonable accommodation then company leave plan governs 15

16 Workers Compensation Injury FEHA/ADA Workers Compensation Injury Once you met your workers comp obligations, are FEHA/ADA obligations also met? FEHA/ADA WCI 16

17 Noteworthy Points to remember about leave: All the aforementioned leaves can be used in any order. When the leaves are tagteamed, then, the key is to determine which leave Cp is actually returning from, to determine the governing law. All leaves are protected from retaliation for its use or request for use. ADA does not work like PDL & CFRA/FMLA as far analyzing absences related to its use. 17

18 DEFINITIONS & REQUIREMENTS 18

19 CFRA Serious Health Condition (SHC) Means an illness, injury, impairment, or physical or mental condition of the employee, child, parent, spouse domestic partner FMLA Similar definition 19

20 CFRA Similar to Federal Family and Medical Leave Act (FMLA) and are often used interchangeably Both use same methods to determine eligibility for leave, provide same amount of time, require reinstatement and in most cases run concurrently 20

21 COUNTING THE 12 MONTHS Eligible employees may take up to 12 weeks of leave in any 12-month period Manner of counting is determined by employer (e.g., calendar year, any fixed year such as fiscal year or employee s anniversary date, 12- mo period measured from the date an employees first CFRA leave begins, rolling year measured backward from date employee uses any leave, etc.) Whatever manner employer chooses, must be consistent and applied uniformly to all employees 21

22 DIFFERENCES CFRA-QUALIFYING EVENT Employee s own serious health condition Bonding leave (Limitations for spouses) Domestic Partners Qualifying Exigency because of employee s or family members military duty Care for ill or injured service members 22

23 EMPLOYEE S OWN SERIOUS HEALTH CONDITION Unlike FMLA, leave for employee s own disability due to pregnancy, childbirth, or related medical condition excluded from CFRA definition of serious health condition In California separate Pregnancy Disability Leave (PDL) 23

24 CARE FOR ILL OR INJURED SERVICE MEMBER FMLA Eligible employee who is spouse, parent, son, daughter or next of kin of a covered service member with a serious illness or injury entitled to 26 weeks of leave in a 12-month period to provide care CFRA Covered under CFRA for 12-weeks where family member is a parent, child, spouse, or domestic partner If next of kin not among these, CFRA leave not running 24

25 ILL Service Member/FMLA & CFRA ILL Service member is Cp s Cousin CFRA (CFRA qualifying next of kin or other CFRA qualifying event) - 12 weeks Ill service member is Cp s son ILLness of a Service Member and CFRA May or May not run concurrently depending on whether there is a CFRA qualifying next of kin. 25

26 PDL BASICS 11044(c)(1) Continuation of Group Health Coverage An employer shall maintain and pay for group health coverage for an eligible female employee who takes pregnancy disability leave for the duration of the leave, not to exceed four months over the course of a 12- month period per pregnancy, beginning on the date the pregnancy disability leave begins, at the same level and under the same conditions that coverage would have been provided if the employee had not taken pregnancy disability leave. (used clearer terminology) 26

27 LAST BUT NOT LEAST! FEHA AND ADA Basics 27

28 FEHA, ADA BASICS FEHA Regulation (b) states, in part, Statement of purpose. These regulations are designed to to strengthen our economy by keeping people working. Therein one expressed purpose of accommodations is to keep employees working that would otherwise be displaced and unemployed. Hence, the primary measurement of effective, is whether the accommodation allows the employee to perform the essential functions of the job and continue working. 28

29 FEHA, ADA BASICS FEHA Regulation11065 (o) Qualified Individual states, in part, is an applicant or employee who has the requisite skill, experience, education, and other jobrelated requirements of the employment position who, with or without reasonable accommodation, can perform essential functions of such position. 29

30 FEHA, ADA BASICS FEHA Regulation (d)(1) states, in part, As a reasonable accommodation, an employer shall ascertain through the interactive process suitable alternate, vacant positions and offer an employee such positions, for which the employee is qualified under the following. 30

31 FEHA, ADA BASICS FEHA Regulation (d)(5) states, in part, The employee with a disability is entitled to preferential consideration of a reassignment to a vacant position over other applicants and existing employees. 31

32 FEHA, ADA BASICS DFEH COMPLAINT A complainant filed with the DFEH with the belief that she had been subjected to disability discrimination, in that she was subjected to the selection process, for a vacant position. Complainant was a qualified applicant and she was granted the position. 32

33 FEHA, ADA BASICS FEHA Regulation (e) states, The employer shall consider the preference of the applicant or employee to be accommodated, but has the right to select and implement an accommodation that is effective for both the employee and employer or other covered entity. 33

34 FEHA, ADA BASICS QUALITY! FEHA Regulation (b) states, in part, No elimination of essential job function is required. Where a quality or quantity standard is an essential job function, an employer or other covered entity is not required to lower such a standard as an accommodation, but may need to accommodate an employee with a disability to enable him or her to meet its standards for quality or quantity. 34

35 ADA PDL or FMLA/CFRA LEAVE EXHAUSTED? ADA MIGHT COME TO THE RESCUE! But not forever! FEHA Regulation (c) states, in part, Paid or unpaid leaves of absence. When the employee cannot presently perform the essential functions of the job holding a job on a leave of absence or extending a leave provided by CFRA, the FMLA may be a reasonable accommodation. When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence. An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation. 35

36 Released with Restrictions Reasonable Accommodation Whether during FMLA/CFRA or PDL Leave or once exhausted, if the employee is released with restrictions. Legal protocol is to follow as with any Disability Reasonable Accommodation issue: Interactive Process Essential functions Modify Alternate work Undue burden 36

37 PERCEIVED DISABILITY COMMON WCI Not so COMMON Medical Condition Genetic Characteristics 37

38 Clear Written Communications & Documentation Best Practices Clearly identify in writing: If PDL, FMLA & CFRA running concurrently or not Type of year being used for CFRA/FMLA Policy (s) being compared to CFRA use Identify all Key employees Pre-employment Physicals - Ensure discrimination-free 38

39 REMEDY TIME RESTORED (seniority, expunge records, etc) DESIGNATE ABSENCES AS PROTECTED COMPENSATION POLICY REDEVELOPMENT DISSEMINATE AND TRAIN IN POLICY Other affirmative defense 39

40 CONTACT INFORMATION For employment DFEH information (includes brochures and posting samples) Fair Employment and Housing Commission (for regulations and comparison chart) or link from DFEH Web site Dept of Labor (Exigency & ILL Serv Member)