Managing Leaves of Absence The Difficult Issues 19 th Annual PIHRA Legal Update January 24, 25 and 26, 2006 Presented by E. George Joseph - Partner Nossaman, Guthner, Knox & Elliott, LLP Phone: (949) 833-7800 Email: gjoseph@nossaman.com Copyright, 2006 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.
Types of Medical Leaves Family and Medical Leave Act ( FMLA ) California Family Rights Act ( CFRA ) Americans with Disabilities Act ( ADA ) Fair Employment and Housing Act ( FEHA ) Pregnancy Disability Leave ( PDL ) Workers Compensation Leave Family Sick Leave 2
Qualification for Leave Under FMLA/CFRA Employer has 50 or more employees 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 3
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 4
Qualification for Leave Under ADA/FEHA Covered employer with 5 or more employees Employee has a disability Employee can perform essential functions of job, with or without accommodation Leave of absence is a reasonable accommodation 5
Basic Leave Rights Under ADA/FEHA Employee is entitled to leave if it will enable the employee to recover and return to work Leave must be for a finite period, and must not create undue hardship for employer Leave may be unavailable where regular attendance is an essential function of the job 6
Basic Pregnancy Disability Leave Rights Employee entitled to up to four months of unpaid leave during any period of disability due to pregnancy, childbirth or related medical conditions. No waiting period employee is immediately eligible upon hire. Leave may be taken intermittently. Right to reinstatement to same position, subject to exceptions. 7
Basic Workers Compensation Leave Rights Employee has a right to leave while recovering from illness or injury. Employer cannot terminate employee while on workers compensation leave unless justified by business necessity. 8
Family Sick Leave If employer provides paid sick leave to employees, an employee may use up to onehalf of the annual allotment for time off to care for ill child, parent, spouse or domestic partner. Leave must be accrued to be used. Illness need not be serious health condition. 9
Hypothetical Tom, a longtime employee, has constant attendance problems. He has been absent numerous times during the past year, and each time, there is a different reason: he had to stay home because his dog was sick; he had relatives coming in from out of town; his car wouldn t start; he had to let the cable guy in; there was something really good on Oprah that day; etc., etc., etc. A lot of the absences have been on a Friday or Monday. Many times, Tom has not notified anyone in advance, but has offered these reasons after the fact. 10
Hypothetical Tom s employer issues a final warning: one more unscheduled and unapproved absence, and Tom will be terminated. Tom is absent for two days in a row with no call. On the third day, the employer receives a fax from Tom s doctor, indicating that Tom will be out for two weeks due to stress. Can the employer fire Tom? What should the employer do? 11
Leave Rights and Employee Discipline Answer: Not yet. Tom may have a legally protected right to leave of absence (disability, FMLA, worker s comp., etc.) Do not criticize the employee. Do not discipline the employee until more is known. Respect the employee s right to privacy. Request verification in an appropriate manner. 12
Hypothetical Robert, an army reservist, begins working at the company on January 1, 2004. On March 1, he is called to active duty, and he returns on January 1, 2005. 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? 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.) 14
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 livein girlfriend, Mary, who has a serious health condition and is also 40 years old. Is Michael entitled to CFRA leave for this purpose? 15
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
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
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
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? 19
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 three calendar days, plus treatment. (2 C.C.R. 7297.0; 29 C.F.R. 825.114(a)(2)(i).) An employer cannot count protected FMLA/CFRA leave toward an attendance policy limitation. 20
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? 21
Serious Health Condition Answer: Unclear. This issue is currently pending before the California Supreme Court (Lonicki v. Sutter Health Care, Case No. S130839). 22
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? 23
Second Opinions Under Answer: Probably not. FMLA/CFRA A court in California has held that under these circumstances, the employer loses the right to challenge the medical certification in a later lawsuit. 24
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? 25
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. 7297.0(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 CFR 1630.14.) If leave is still needed after 12 weeks, the employee may be required to identify the condition. 26
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? 27
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. 7297.4(a)(1).) Result may be different under FMLA. 28
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? 29
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. 30
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? 31
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. 7297.3(d) and (e).) 32
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? 33
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. 7297.3(e)(1).) 34
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? 35
Answer: Not yet. Re-certification of FMLA/CFRA Leave 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. 7297.4(b)(1),(2).) 36
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? 37
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. 7297.5(b)(3)(B).) 38
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? 39
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. 7297.0(g), 7297.2(a).) 40
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? 41
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. 7297.2(c)(1).) 42
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? 43
FMLA/CFRA Reinstatement Rights Answer: Yes. 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. 44
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? 45
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. 46
Hypothetical ABC Company has a policy of granting up to four months leave for any medical disability. Phil has been out on leave due to stress for four months. Each month, his doctor submitted a note stating that he would need to be out for another month because his condition has not improved and he is unable to work. Once the four months expires, is the employer required to continue to grant these requests? 47
Duration of ADA/FEHA Leave Answer: Not indefinitely. Neither the ADA nor FEHA requires that an employee be granted a leave of indefinite duration as a reasonable accommodation, particularly when it would be an undue hardship for the employer to do so. Employer s obligation depends on the particular circumstances. 48
Hypothetical ABC Company has a policy that provides up to six months time off due to medical disability. Carol has been on pregnancy disability leave for four months, and she presents her employer with a note requesting an additional month of leave. The employer refuses the request, stating that the law requires no more than four months for pregnancy disability leave. Does Carol have a valid claim for pregnancy discrimination? 49
Answer: Yes. Duration of Pregnancy Disability Leave An employer must afford pregnant employees the same leave rights that are afforded to employees who are disabled for other reasons. The four month requirement for PDL is a minimum, not a limit. (2 C.C.R. 7291.7(b).) Exception: Occupational disability. 50
Hypothetical Jane begins working at the company on January 1, 2004. On November 1, having worked 1,000 hours, she begins a pregnancy disability leave. The baby is delivered on March 1, 2005. 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? 51
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. 7297.0(e)(2).) Note Time on PDL is credited toward the 12- month requirement. 52
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? 53
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. 7291.13(c)(1).) 54
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? 55
Answer: Yes. Interaction Between PDL and CFRA 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. 7291.13(c).) It must, however, be completed within one year after the birth. 56
Hypothetical ABC Company has a policy that employees on workers compensation leave will be terminated if they do not return to work after one year. Paul has been on leave due to a work-related injury for eleven months. His doctor advises that he will be able to return to work in another two months. Citing its one-year policy, ABC Company terminates Paul s employment at the conclusion of the twelfth month. Does Paul have a claim for violation of Labor Code section 132a? 57
Duration of Workers Compensation Leave Answer: Probably. An employer may violate section 132a if it terminates an employee on workers compensation leave, unless either the employee is permanently disabled from performing the job; or termination of employment is necessary in light of demonstrated business realities. 58
Hypothetical Diane is on a workers compensation leave that also qualifies for leave under FMLA/CFRA. After she has been on leave for one month, Diane declines to accept a light duty assignment with her employer for which she is qualified. Diane s employer advises her that if she does not accept the assignment, her employment will be terminated. Has Diane s employer acted lawfully? 59
Interaction of FMLA/CFRA and Workers Compensation Leave Answer: No. Even though she may no longer be entitled to workers compensation leave, Diane is still eligible to continue her leave under FMLA/CFRA. 60
Hypothetical Richard has accrued 10 days of sick leave under his employer s sick leave policy. He requests time off, with pay, in order to care for his son, who has a common cold. Is Richard s employer required to grant this request? 61
California Family Sick Leave Answer: Yes. Under California s Family Sick Leave Law, an employee is entitled to paid leave to care for a family member s illness, even if it is not a serious health condition. (Labor Code 233.) 62
Hypothetical ABC Company has a policy under which employees accrue 24 days of paid time off each year to be used for vacation, sick leave and personal time off. Are ABC s employees entitled to use a portion of this paid time off for time off to care for a sick family member under the Family Sick Leave Law (Labor Code section 233)? If so, how much can they use? 63
Use of PTO for Family Sick Leave Answer: Yes. All of it. By the terms of the company policy, the paid time off can be used for any purpose. 64
Managing Leaves of Absence Q & A 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. 67
Contact Information E. George Joseph Partner Nossaman Guthner Knox & Elliott, LLP 18101 Von Karman Avenue, Suite 1800 Irvine, CA 92612 Phone (949) 833-7800 Fax (949) 833-7801 gjoseph@nossaman.com www.nossaman.com 68