Navigating FMLA and CFRA

Transcription

1 Navigating FMLA and CFRA A Practical Guide For Compliance 50th Annual PIHRA Conference and Exhibition October 17, 2007 Presented by E. George Joseph - Partner Nossaman Guthner Knox & Elliott LLP Phone: (949) gjoseph@nossaman.com

2 Basic Leave Rights Under FMLA/CFRA Up to 12 workweeks of leave during a 12-month period because of: Birth of employee s child, care for newborn Placement of child with employee due to adoption/foster care Care for employee s child, parent, spouse or domestic partner with serious health condition Employee s own serious health condition Right to reinstatement to same or equivalent position, subject to exceptions 1

3 Outline of Presentation Which employers are covered? Which employees have leave rights? What is a serious health condition? Leave duration and intermittent leave. Benefits payable during leave. Employee reinstatement rights. Interaction of FMLA and CFRA with other laws. 2

4 Employers Subject to FMLA/CFRA 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year 3

5 The 50-Employee Threshold Includes full-time and part-time employees. Includes employees on leave. An employee who appears on the payroll for a week is considered employed for that entire week. 4

6 The Satellite Office Exception If there are fewer than 50 employees within 75 miles, FMLA/CFRA do not apply to the site. Distance measured by roads, not as the crow flies. 5

7 Hypothetical ABC Company has 100 employees at its headquarters. At a remote facility more than 200 miles away, there are 25 employees. ABC s handbook says that all employees are entitled to FMLA rights. An employee at the remote facility sues for violation of FMLA. Does he have a case? 6

8 Inadvertent Granting of FMLA/CFRA Rights Answer: Yes. Because the handbook did not expressly exclude employees at the remote site, a jury could conclude that such employees reasonably expected to have FMLA rights. (Meyers v. Tursso Co. (Ia 2007) C MWB.) Lesson: be careful when drafting handbook language especially for employees in another state. 7

9 Employee Qualification for FMLA/CFRA Employee has been employed for at least 12 months Employee has worked at least 1,250 hours during past 12 months Employee works at site with at least 50 employees within 75 miles 8

10 Hypothetical Diane worked as an auto salesman at Acme Automotive for 2 years. She went to work an another dealer for 5 years, and then returned to Acme. After she has been back at Acme for 7 months, Diane takes a medical leave for a ruptured disc, and is fired for excessive absenteeism. If Diane sues for violation of FMLA, does she have a case? 9

11 Break in Service Answer: Yes. A break in service does not restart the 12-month eligibility period. As long as the employee has logged the 1,250 hours during the past 12 months, she is eligible for FMLA. (Rucker v. Lee Holding Co. (1 st Cir. 2006) 471 F.3d 6.) Lesson: Check for previous employment with the company. 10

12 Hypothetical Robert, an army reservist, begins working at the company on January 1, On March 1, he is called to active duty, and he returns on January 1, On February 1, 2005, he develops a serious health condition and requests leave under FMLA/CFRA. Is Robert entitled to FMLA/CFRA leave for this purpose? 11

13 FMLA/CFRA Eligibility Answer: Yes. Reservists called to active duty in the U. S. armed forces may count their time on active duty toward the 12 month/1,250 hour eligibility requirement. (Dept. of Labor Memo 7/26/02.) 12

14 Hypothetical Mary s 25-year-old daughter, Alice, is pregnant. In order to help out both before and after the birth of her new granddaughter, Mary would like to take off one week before and four weeks after the due date. She submits a request to her employer. Is Mary s employer required to honor this request under FMLA/CFRA? 13

15 FMLA for Grandma? Answers: Before the birth: Probably not. A child must either be under 18 or incapable of self care due to disability. Result may be different if there are complications. After the birth: No. Baby bonding leave is only for the employee s own child. 14

16 Hypothetical Michael, who is 40 years old, has been employed with the company for two years. He requests leave under CFRA to care for his live-in girlfriend, Mary, who has a serious health condition and is also 40 years old. Is Michael entitled to CFRA leave for this purpose? 15

17 Domestic Partner Rights Answer: No. In order to qualify for benefits for a domestic partner relationship, one of the partners must be at least 62 years old or the partners must be of the same gender. (Family Code 297.5(a).) Spouse does not include common law marriage in California. 16

18 Hypothetical Bob and Mary are registered domestic partners under California law. Bob requests, and uses, 12 weeks of leave under CFRA to care for Mary s serious health condition. A month later, Bob develops a serious health condition and requests leave under FMLA. Is Bob entitled to FMLA leave for this purpose? 17

19 Domestic Partner Rights Answer: Probably. Since FMLA does not recognize domestic partner rights, FMLA and CFRA may not run concurrently if leave is taken to care for a domestic partner (similar to interaction of CFRA and PDL). 18

20 Whose Serious Health Condition Qualifies? Employee Child Parent Spouse Domestic partner Legislation to expand to others was vetoed by the Governor on 10/14/07 19

21 Hypothetical The Company has an attendance policy that limits employees to 10 unscheduled absences per year. Frank suffers a broken ankle Thursday evening, and is out from work due to his incapacity on Friday and the following Monday. He returns to work on Tuesday. Do these absences count against the Company s limitation? 20

22 Serious Health Condition Answer: No. A serious health condition exists if the employee is unable to work, attend school or perform other regular daily activities for more than three calendar days, plus treatment. (2 C.C.R ; 29 C.F.R (a)(2)(i).) An employer cannot count protected FMLA/CFRA leave toward an attendance policy limitation. 21

23 What is a Serious Health Condition? (1) Inpatient care (overnight stay) in a hospital, hospice, or residential care facility, plus the related period of incapacity. 22

24 What is a Serious Health Condition? (2) More than three full consecutive days of incapacity, plus treatment at least 2 times by a health care provider, or treatment once plus a regimen of continuing treatment under the health care provider s supervision 23

25 What is a Serious Health Condition? (3) Any period of incapacity due to pregnancy (not under CFRA) (4) Any period of incapacity due to a chronic serious health condition, involving periodic visits to health care provider over an extended period (e.g., asthma, diabetes, epilepsy) 24

26 What is a Serious Health Condition? (5) Any period of incapacity that is permanent or long term due to a condition for which treatment may not be effective (e.g., Alzheimer s, severe stroke, terminal illness) (6) Any period of absence for multiple treatments by a health care provider for restorative surgery or a condition such as cancer (chemotherapy), severe arthritis (physical therapy) or kidney disease (dialysis) 25

27 Hypothetical Bob, a long term full time employee, tells his supervisor that he will need to be off work for the next two weeks because he is having plastic surgery and his doctor told him he needed that much time off. Since Bob has no more accrued sick leave, his supervisor says no. Has Bob s employer violated his rights under FMLA/CFRA? 26

28 FMLA for Cosmetic Surgery Answer. No. Under FMLA regulations, cosmetic surgery is not considered a serious health condition unless there is inpatient care or complications develop. 27

29 Hypothetical Mary is out with a common cold for 4 days. during that time, she sees a doctor twice. Does Mary have FMLA/CFRA rights? 28

30 Colds, Flu and Other Common Ailments Answer: Yes. FMLA regulations say that common cold, flu, ear aches, upset stomach, and headaches other than migraines are ordinarily not serious health conditions. But, if the condition otherwise qualifies, FMLA/CFRA rights apply. (Miller v. AT&T Corp. (4 th Cir. 2001) 250 F.3d 820.) Lesson: apply the criteria, regardless of the label. 29

31 Hypothetical Karen is employed as a receptionist at ABC Company. She is out on FMLA/CFRA leave due to stress. ABC Company discovers that while out on leave, Karen has been working as a receptionist at XYZ Company. Is Karen entitled to continue her FMLA/CFRA leave? 30

32 Serious Health Condition Answer: Unclear. This issue is currently pending before the California Supreme Court (Lonicki v. Sutter Health Care, Case No. S130839). 31

33 Hypothetical Michelle requests leave due to an illness that she claims is a serious health condition and submits a medical certification. Her employer does not agree with the certification, but chooses not to seek a second opinion regarding whether her condition qualifies under FMLA/CFRA. If Michelle later sues her employer for violating her leave rights, can the employer then contest the validity of her medical certification? 32

34 Second Opinions Under FMLA/CFRA Answer: Probably not. A court in California has held that under these circumstances, the employer loses the right to challenge the medical certification in a later lawsuit. (Sims v. Alameda-Contra Costa Transit Dist. (ND Cal 1998) 2 F.Supp.2d 1253, 1264.) 33

35 Hypothetical Adam provides his employer with a doctor s note certifying that because of a serious health condition, Adam will be unable to return to work for five months. Can Adam s employer require that Adam disclose the nature of his condition? 34

36 Medical Certification/Inquiry Answer: Not yet. Under CFRA, an employer may not require the employee to identify the serious health condition involved. (2 C.C.R (a)(2).) Under the ADA/FEHA, an employee may be required to identify the condition if necessary to determine the employee s ability to do the job. (29 C.F.R ) If leave is still needed after 12 weeks, the employee may be required to identify the condition. 35

37 Hypothetical Linda notifies her employer that due to an illness that qualifies as a serious health condition, she needs to take two months off. Linda does not mention FMLA/CFRA by name, and her employer does not advise her that her leave will be counted as FMLA/CFRA. One month after Linda returns from leave, her employer notifies her that the two months of leave will be counted as FMLA/CFRA. Will the two months count as FMLA/CFRA leave? 36

38 Employer Designation Obligation Answer: No. If an employer does not timely notify the employee that leave will be counted as CFRA, it will not be counted. (2 C.C.R (a)(1); Faust v. California Portland Cement Co. (2007) 150 Cal.App.4 th 864.) Result may be different under FMLA. 37

39 Employer Obligation on Learning of a FMLA/CFRA Qualifying Event Promptly (within 2 business days) notify employee that the leave is designated as FMLA and CFRA Provide information to employee regarding rights and responsibilities If desired, request medical certification, provide certification form (watch difference between FMLA and CFRA) 38

40 Duration of FMLA/CFRA Leave 12 workweeks (60 8-hour days) during a 12-month leave year: calendar year other fixed 12-month period (e.g., fiscal year) 12 months forward from date leave first taken rolling 12-month period measured backward from date of leave Notify employees of method and apply consistently. 39

41 Hypothetical Bill is a part-time employee who works 30 hours per week. He is on FMLA/CFRA leave, taking 10 hours off per week. How much of Bill s FMLA/CFRA leave is used up each week? 40

42 Calculation of Leave Under FMLA/CFRA Answer: 1/3 of a week. For part-time employees, the amount of leave is determined on a pro rata basis, comparing the new schedule to the normal schedule. 41

43 Intermittent Leave under FMLA/CFRA Leave taken in separate blocks of time due to a single qualifying reason. May be taken in increments as small as those used by employer to track absences. Requires medical certification (except for baby bonding and chronic serious health conditions). Employee notice must be reasonable. 42

44 Reduced Leave Schedule under FMLA/CFRA A change in the employee s schedule for a period of time, normally from full time to part time. Same medical certification and notice requirements apply as for intermittent leave. 43

45 Hypothetical Upon the birth of her child, Jane requests that she be permitted to take her CFRA leave to care for her newborn by leaving two hours early each day. Is the employer required to honor this request? 44

46 Intermittent CFRA Leave Answer: No. Unlike FMLA, CFRA permits intermittent leave to be taken for newborn care. But such leave must be taken for a minimum duration of two weeks (and lesser increments on up to two occasions). (2 C.C.R (d) and (e).) 45

47 Hypothetical Alice is an exempt employee, paid on a salary basis. When she goes on a reduced leave schedule under FMLA, her employer reduces her salary pro rata for the period during which she is off. Alice sues for unpaid overtime, claiming that she is no longer exempt because she is not paid on a salary basis. Does she have a case? 46

48 Answer: No. Reduced Leave Schedule under FMLA/CFRA Salary reductions attributable to FMLA do not affect exempt status. (29 U.S.C. 2612(c); 29 C.F.R (a).) 47

49 Hypothetical Richard works in the company s payroll department. Every two weeks, at the busiest time in the department, he experiences migraine headaches and takes intermittent FMLA/CFRA leave, causing disruption in processing of payroll. Is the company legally required to allow Richard to take this time off? What can the company do to prevent the disruption? 48

50 Intermittent FMLA/CFRA Leave Answer: Yes, but... A migraine headache is a serious health condition under FMLA/CFRA, and intermittent leave must be provided. But the employer may transfer the employee to another equivalent position that better allows for the intermittent leave. (2 C.C.R (e)(1).) 49

51 Hypothetical Fred is on FMLA/CFRA leave, based on his doctor s certification that he has a serious health condition requiring 30 days off. Fred s employer hears that he has been spotted playing golf and tennis, and is growing suspicious. Can the employer ask for a new certification of the medical need for Fred s leave? 50

52 Re-certification of FMLA/CFRA Leave Answer: Not yet. Under FMLA, an employer can request a recertification under these circumstances. But under CFRA, the employer must wait until expiration of the time originally estimated for the leave. (2 C.C.R (b)(1),(2).) 51

53 Hypothetical ABC Company has a policy by which employees accrue paid sick leave on a monthly basis. Peter requests time off to care for his child, who has a serious health condition. Can ABC require Peter to use his accrued sick leave for this purpose? 52

54 Use of Paid Leave While on FMLA/CFRA Leave Answer: No. Unlike FMLA, CFRA does not allow an employer to require that an employee use sick leave for leave taken for birth, adoption, foster care or care for a family member. However, the employer and employee can agree that paid sick leave be used for this purpose. (2 C.C.R (b)(3)(B).) 53

55 Use of Vacation Pay During FMLA/CFRA Leave Employee may use accrued vacation pay, as long as employee is eligible under company policy. Employer may require that employee use accrued vacation pay. 54

56 Use of Sick Leave Pay During FMLA/CFRA Leave Employee may use accrued sick leave, as long as employee is eligible under company policy. Employer may require that employee use sick leave, except in case of birth, adoption or leave to care for sick family member. 55

57 Use of Disability Benefits During FMLA/CFRA Leave Employee may receive disability benefits, provided employee qualifies. Employer may not require employee to use disability benefits. If employee receives disability, employer cannot require employee to use other types of paid leave at the same time. 56

58 Other Sources of Payment Paid Family Leave (administered by California EDD) Paid leave under new San Francisco ordinance (applies to any employees located in San Francisco) 57

59 Hypothetical XYZ Company has a bonus plan that is based in part on total hours worked during the year. In calculating Paul s annual bonus, XYZ deducts the time Paul took off for FMLA/CFRA leave. Paul objects to this calculation, and threatens to sue for violation of his FMLA/CFRA rights. Does Paul have a case? 58

60 Effect of Leave on Performance Bonus Answer: Probably Not. As long as the bonus is not based expressly on non-absenteeism, an employer may consider time off for FMLA/CFRA when calculating bonus. (Sommer v. The Vanguard Group (3 rd Cir. 2006) 461 F.3d 397.) 59

61 Hypothetical John works as a medical assistant and is out on FMLA/CFRA leave. When John returns from leave, his employer tells him that someone else has been hired to replace him as a medical assistant, and that John will now be employed as a file clerk, which pays exactly the same and provides exactly the same benefits. John objects to the new position and is told that if he does not accept it, his employment will be terminated. Has John s employer violated his rights under FMLA/CFRA? 60

62 Reinstatement Rights Under FMLA/CFRA Answer: Yes. Upon return from FMLA/CFRA leave, an employee is entitled to reinstatement to a position that is virtually identical to his original position in terms of pay, benefits and working conditions. The position must involve substantially similar duties, responsibilities, skill and authority. (2 C.C.R (g), (a).) 61

63 Hypothetical Bill, a clerk typist for ABC Company, is on a FMLA/CFRA leave due to his own serious health condition. While Bill is out on leave, ABC Company implements a reduction in force that includes the elimination of all clerk typist positions, including Bill s. ABC notifies Bill that his employment is terminated. Has ABC Company violated Bill s rights to reinstatement under FMLA/CFRA? 62

64 FMLA/CFRA Reinstatement Rights Answer: No. An employee on FMLA/CFRA leave has no greater right to reinstatement, benefits or other conditions of employment than if the employee had been continuously employed during the leave period. If an employee is laid off during leave, the employee is not entitled to reinstatement. (2 C.C.R (c)(1).) 63

65 Hypothetical Bill, a clerk typist for ABC Company, is on a FMLA/CFRA leave due to his own serious health condition. While Bill is out on leave, ABC Company decides that it can get along without him and eliminates his position. ABC notifies Bill that his employment is terminated. Has ABC Company violated Bill s rights under FMLA/CFRA? 64

66 FMLA/CFRA Reinstatement Rights Answer: Probably. Bill s employment was terminated as a direct result of the fact that he exercised his right to leave under FMLA/CFRA. This is a violation of his rights under both statutes. 65

67 Hypothetical Bill, a clerk typist for ABC Company, is on a FMLA/CFRA leave due to his own serious health condition. While Bill is out on leave, ABC Company discovers that prior to his leave, Bill stole company property. Based on this information, ABC terminates Bill s employment. Has ABC Company violated Bill s rights under FMLA/CFRA? 66

68 FMLA/CFRA Reinstatement Rights Answer: No. An employee on FMLA/CFRA leave has no greater right to reinstatement, benefits or other conditions of employment than if the employee had been continuously employed during the leave period. If ABC would have fired Bill if he was not on leave, ABC can fire Bill while he is on leave. 67

69 Hypothetical Jane begins working at the company on January 1, On November 1, having worked 1,000 hours, she begins a pregnancy disability leave. The baby is delivered on March 1, Jane requests that she be allowed to take CFRA leave to care for her newborn child, beginning that date. Is Jane entitled to CFRA leave? 68

70 Interaction Between PDL and CFRA Answer: No. An employee must complete the 1,250 hours before the PDL commences in order to qualify for CFRA leave upon delivery. (2 C.C.R (e)(2).) Note Time on PDL is credited toward the 12- month requirement. 69

71 Hypothetical Jane commences PDL on March 1, 2004, and uses all four months of PDL by July 1. Her child has not yet been born, and she requests CFRA leave because her doctor advises that she is still disabled and needs time off from work. Is Jane entitled to CFRA leave for this purpose? 70

72 Interaction Between PDL and CFRA Answer: Not necessarily. Because pregnancy disability is not considered a serious health condition under CFRA, there is no right to CFRA leave. But CFRA invites the employer, at its discretion, to allow CFRA leave if medically necessary. (2 C.C.R (c)(1).) 71

73 Hypothetical Jane commences PDL on March 1, 2004, and her child is born on June 1. Jane is still disabled, and her PDL expires on July 1. Upon expiration of her PDL, Jane requests CFRA leave to care for her newborn child. Is Jane entitled to CFRA leave for this purpose? 72

74 Interaction Between PDL and CFRA Answer: Yes. An employee is entitled to baby bonding leave under CFRA regardless of whether she is still disabled, and she need not commence it immediately upon birth of the child (2 C.C.R (c).) It must, however, be completed within one year after the birth. 73

75 Managing Leaves of Absence Q & A 74

76 Contact Information E. George Joseph Partner Nossaman Guthner Knox & Elliott LLP Von Karman Avenue, Suite 1800 Irvine, CA Phone (949) Fax (949) Copyright, 2007 Nossaman Guthner Knox & Elliott, LLP. All Rights Reserved The information contained herein does not constitute a legal opinion and should not be relied upon by the reader as legal advice or be regarded as a substitute for legal advice.