Managing Family and Medical Leaves in California€¦ · Los Angeles, CA 90067 (310) 552-5000. 2...

Copyright © 2011 by K&L Gates LLP. All rights reserved.

Managing Family and Medical Leaves in California

Presented:March 30, 2011

Los Angeles Office10100 Santa Monica Blvd., Seventh FloorLos Angeles, CA 90067(310) 552-5000

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Today’s Presenters:

Thomas H. PetridesK&L Gates LLPLos Angeles Office (310) 552-5077 (Direct)

(310) 552-5001 (Fax)

[email protected]

Trilby C.E. Robinson-DornK&L Gates LLPOrange County Office(949) 623-3558 (Direct)

(949) 253-0902 (Fax)

[email protected]

Not admitted to practice in California. Admitted to practice in Washington.

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EXCLUSIVE RIGHTS TO MATERIALS

THE FOLLOWING MATERIALS HAVE BEEN PREPARED BY K&L GATES TO BE USED EXCLUSIVELY BY K&L GATES IN CONNECTION WITH THE PRESENTATION OF A SEMINAR ON LEAVES OF ABSENCE ISSUES.

THESE MATERIALS SHOULD NOT BE CONSTRUED TO BE OR USED AS A SUBSTITUTE FOR LEGAL ADVICE ON THE ISSUES COVERED IN THIS PROGRAM.

THESE MATERIALS ARE NOT TO BE REPRODUCED, COPIED, TRANSMITTED OR USED IN ANY MANNER BY ANY OTHER PERSON OR ENTITY WITHOUT THE EXPRESS WRITTEN CONSENT OF K&L GATES.

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Employee Family and Medical Leave Issues

Managing the complex intersection of FMLA/CFRA, ADA/FEHA, Workers’Compensation, Pregnancy and other leaves of absence statutes

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The BasicsFederal Statutes

FMLAADA

State StatutesCFRAFEHA (Disability) Workers’ CompensationPDL (Pregnancy Leave)SDI (Disability Insurance)PFL (Paid Family Leave)

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Other Leave Statutes

Jury Duty; Witness; Domestic Violence/Sexual Assault Victim; Crime Victim (LC § 230; 230.1; 230.2)

Volunteer Firefighter; Reserve Peace Officer; Emergency Rescue Personnel (LC § 230.3; 230.4)Employee’s visits to child’s school or day care facility (LC §230.7; 230.8)Sick Leave – Attend to Family Illness (LC § 233; 234)Alcohol and Drug Rehab (LC § 1025)Paid Time Off to Vote (Elections Code § 14350)

USERRAMilitary Spouse Leave

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FMLA Overview

2008 Revisions (became effective 2009) to the Federal Family and Medical Leave Act (“FMLA”)

What’s new and what has been “clarified”?

Challenging Family and Medical Leave Issues: leave relating to pregnancy/childbirthintermittent leave

How does FMLA intersect with:CA Pregnancy Disability Leave Regulation? CA Family Rights Act?Federal and state laws against disability discrimination?

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FMLA Overview (cont.)

In certain circumstances, FMLA provides eligible employees of covered employers:

up to 12 weeks of unpaid leave in 12-month period;ability to continue same health benefits during leave;right to be returned to same or equivalent position after leave;right to request/receive leave without interference, restraint or discrimination by the employer

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FMLA Overview (cont.)

Permissible Reasons for FMLA LeaveBirth and care of child Placement of child for adoption or foster care Care for spouse, son, daughter, or parent with a “serious health condition”Employee’s “serious health condition” - unable to perform the functions of his or her jobTwo new types of military FMLA leave

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(New) Two Types of Military FMLA Leave

Military Caregiver Leave – to care for a family member in the Armed Forces (or on temp. disabled list) with serious illness or injury incurred in line of duty

allowed up to 26 weeks of leave during 12-month period starting when FMLA caregiver leave begins can include up to 12 weeks of other forms of FMLA leaveif could qualify as either caregiver leave or other form of FMLAleave, must designate as caregiver leavecovers more extended family members than other FMLA leaves (e.g., “son or daughter” of any age, “next of kin”)

Qualifying Exigency Leave – (a) employee’s family member is a covered military member on active duty (or has been notified of an impending call to activity duty) and (b) qualifying exigency has arisen

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Notable Changes to FMLA Regulations

What is a “serious health condition” for purposes of leave related to (a) employee’s health or (b) the need to care for a family member?An illness, injury, impairment, or physical or mental condition that involves:

“Inpatient care”; or“Continuing treatment by a health care provider”

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Notable Changes to FMLA Regulations (cont.)

“Continuing treatment by a health care provider” means: (1) Incapacity of more than 3 consecutive days, and any subsequent treatment or period of incapacity that involves:

(new) treatment two or more times within 30 days of the first day of incapacity (absent extenuating circumstances);

first visit must be within 7 days of initial incapacity

subsequent visit(s) must be at determination of providerOR

(new) treatment at least once (within 7 days of initial incapacity) that results in regimen of continuing care

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“Continuing treatment” means (cont.): (2) Periods of incapacity due to:

pregnancy or for prenatal carea chronic condition

(new) requires visits for treatment at least twice a year(new) incapacity may be episodic rather than continuing

permanent or long term conditions for which treatment may not be effective

(3) Periods of absence to receive multiple treatments

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Posting RequirementsNotice explaining FMLA must be prominently posted in a conspicuous place – (DOL sample form)If the employer has any FMLA eligible employees, must also provide a written or electronic notice to each employee (such as in an employee handbook, on its intranet site for personnel policies, or other method)

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Employee’s “Request” for FMLA LeaveTiming:

30 days’ written or verbal notice when foreseeable notice “as soon as practicable” when not foreseeable

Content:specific request for FMLA leave is not requiredsufficient information to enable employer to determine that leave might qualify (obligated to inquire if unclear) simply calling in “sick” is not sufficient

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Unforeseeable Leave - Complying with Employer’s Policies

Can require compliance with customary policies regarding requesting leave/reporting absences (e.g., call-in procedures)Policies must not be more strict than FMLA regulations and must not discriminate against employee who takes FMLA leaveGenerally may delay or deny leave (and take appropriate discipline) for failure of employee to give proper notice

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Employer’s Response to Request: Eligibility NoticeWithin 5 business days (previously only 2) of learning of employee’s need for FMLA leave, employer must provide employee with notice of eligibility under FMLA

If employee not eligible, must specify one reason why

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Employer’s Response: Rights and Responsibilities Noticeprovide employee notice of FMLA rights and responsibilities at same time as eligibility notice (DOL sample form)very specific and numerous informational requirements

Employer’s Designation Noticeemployer has 5 business days (previously only 2) from time it has enough information to know if the leave qualifies as FMLA leave to provide notice to employee retroactive designation allowed only if it does not cause harm to the employee and written notice of designation is provided

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Medical Certificationsmake request for certification within 5 business days after receiving request (and advise of consequences for inadequate certification); usually done via rights and responsibilities noticeemployee generally must provide certification within 15 daysnew separate DOL certification forms for (a) employee’s own serious health condition and (b) for the serious health condition of family member

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Medical Certifications (cont.)employee generally has at least 7 calendar days to cure any deficiency specified by the employeremployer may deny FMLA leave if the deficiencies are not correctedemployer must follow HIPAA Privacy Rule if certification contains individually-identifiable information created or held by a HIPAA covered health care provider (keep separate confidential files) employer can request a certification annually if the need for leave lasts beyond a single leave year.

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Authentication or Clarification of Certificationemployer may contact health care provider for:

authentication clarification

for clarification, employee must first authorize contact of health care provider or provide the requested clarificationauthorization not needed for authenticationcontact can be made by employer’s health care provider, human resources professional, leave administrator, or manager, but notemployee’s supervisor

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Recertificationfor absent employees, can seek recertification every 30 days (unless initial certification covered longer period)employer does not have to wait 30 days if:

employee asks for an extension of leave; or circumstances in original certification have changed; or employer “receives information that casts doubt upon the continuing validity of the certification”

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Fitness for Duty Certificationwhere employee is on intermittent leave and employer has reasonable safety concerns, may require a fitness for duty certification up to once every 30 days insistence on certification must follow a uniform policyemployer must provide list of essential functions at time of providing designation notice if employer wants fitness for duty certification to address employee’s ability to perform essential functions of his/her position

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Continuation of Insurance Benefit if employee on FMLA leave loses coverage due to employee’s failure to pay premiums, when employee returns from leave employer must restore employee (and spouse and dependents) to coverage employee would have had but for the lapse due to failure to pay the premiums (no waiting periods or pre-existing condition exclusions are permitted)if employer fails to do so, it may be liable for benefits lost, other actual monetary losses, and equitable relief

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Substitution of Paid Leaveemployees may substitute other forms of paid leave for FMLA leave (or employer may require substitution), but only if it conforms to employer’s normal policies pertaining to the paid leaveall forms of paid leave treated same for purposes of substitutionpaid leave policies must not discriminate against FMLA leave

Light Duty - voluntary light duty does not count as FMLA leave; if FMLA already exhausted and employee works light duty because he/she cannot perform former job, no right to reinstatement at former position.Waiver - employee can sign a release waiving past FMLA claims (cannot waive claims for possible future FMLA violations)

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Perfect Attendance and Similar Policiesbonuses dependent on attendance or performance goal may be denied to those who do not obtain goal due to FMLA leavebut employer cannot deprive employee of bonus if it does not deprive others who used non-FMLA leaveFMLA leave not absence under no-fault attendance policy

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Don’t Forget Federal and State Disability Laws!

Employees may in certain cases be entitled to additional leave as a reasonable accommodation under disability laws after FMLA/CFRA leave exhaustedSources of law

Americans with Disabilities Act (ADA) – 15+ employeesFair Employment and Housing Act (FEHA) – 5+ employees

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ADA Basics

Employer has duty to provide reasonable accommodation for known disabilitiesPerson with a “disability” is one who (a) currently has; (b) has a record of having; or (c) is regarded as having:i. a physical or mental impairmentii. that substantially limitsiii. one or more major life activities“Reasonable accommodation” may include unpaid leave, even if employee has exhausted all leave under employer policy and under FMLA/CFRA. Interactive process required Indefinite leave not required Undue hardship – burden on employer; use caution

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New ADAAA Regulations

On Friday, March 25, the EEOC issued new regulations under the ADAAAThese regulations become effective May 24, 2011Among other things, regs set forth principles to guide determination of whether individual has a disability under federal law; implement Congress’s mandate to construe “disability” more broadly

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Fair Employment and Housing Act (FEHA) Disability – The Basics

Disability does not have to “substantially” limit a major life activity – mitigating measures are not taken into account (very similar to newly amended ADA)Employer required to provide “reasonable accommodation”which specifically includes unpaid leave; Employer must also engage in “interactive process” with employeeFor an employee who is out “indefinitely” past the permitted leave, the employee is still protected under FEHA, and the Employer is at great risk to terminate unless it can show “undue hardship;” must still engage in the interactive process

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California Family Rights Act (CFRA) – The Basics

CFRA is substantially the same as the federal FMLA was PRIOR to the 2009 changes in all respects except CFRA specifically excludes pregnancy as a “medical condition”covered under the CFRAFor an employee who is disabled due to pregnancy, the Employer may start the FMLA “12 week” clock running but not the 12 weeks of CFRAAfter the pregnancy disability, the employee will still be permitted to take up to 12 weeks of unpaid CFRA leave to care for the newborn baby

But, employee is only entitled to a maximum of 12 weeks of paid medical coverage

The new military-related reasons provided in the FMLA amendments are not provided in CFRA

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Key Comparison CFRA v. FMLA

Exigent circumstances (military related) not covered under CFRA

Means that employee does not exhaust CFRA if taking FMLA leave for exigent circumstancesEmployee may be entitled to additional time off if CFRA-qualifying event occurs

Disabled Military family member leaveNot covered under CFRA unless it is parent, spouse/domestic partner, childCFRA does not provide for 26 weeks; only 12Again, if FMLA applies but CFRA does not, employee may be entitled to additional time off if CFRA-qualifying event occurs

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Pregnancy Disability Leave (PDL) – The Basics

Applies to Employers with five or more employees; covers all employees regardless of length of service

Provides up to four months of unpaid disability leave due to pregnancy or childbirth

Employer cannot challenge treating physician’s medical certification; presumed six weeks of disability after child birth and eight weeks for C-section

Employer cannot require employee to use vacation, but employee is entitled to elect it

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Pregnancy Disability Leave (PDL) – The Basics (Cont’d)

Can run concurrently with FMLA, but cannot run with CFRA – employee will still be entitled (if eligible) to take 12 weeks of CFRA leave to bond with child after using PDL

Combined total of nearly seven months of leave!

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Workers’ Compensation – The Basics

Applies to all Employers and employees regardless of size or length of service

WC will provide paid benefits for lost wages and medical expenses for work related injuries

Labor Code 132a protects injured employee; employee cannotbe terminated due to injury no matter how long out on leave; One published decision – employee was out nine years!

But, at some point, the position can be “filled” or “replaced”by employer due to “business necessity” – (employee remains on leave)

Upon release to return to work, employee must be returned to job if there is an open and available position for which the employee is qualified

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State Disability Insurance (SDI) – The Basics

Employee funded program covering almost all employeesSDI provides up to 52 weeks of temporary disability insurance benefits for the employee’s non-work related disability due to injury or illness, including pregnancyDoes not provide any protected leave status to the employee; just provides weekly wage replacement on a percent basis if employee cannot work

Employer merely confirms employment and leave status to the EDD, who administers the SDI

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Paid Family Leave (PFL)– The Basics

Employee funded program similar to SDI and administered by the EDDProvides up to six weeks of wage replacement on a percent basis for an employee who is taking time off to care for a new child or a sick/injured family member (spouse, parent, child, domestic partner)

PFL does not grant employee any leave rights; just provides wage supplement if employee cannot work due to family care after a one week waiting period

If Employer grants leave and requires employee to use paid vacation, eligibility for PFL is delayed for two weeks, but Employer can still require employee to use more accrued vacation if available

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The Issues: Tensions between the Statutes

FMLA/CFRA provide set amount of time off, but ADA/FEHA may require longer time off

Workers’ Comp provides for indefinite time offA workers’ comp injury triggers injury leave and WCAB claim notice requirements, and also FMLA/CFRA notice and leave rights; it may be a “disability” under the ADA and the FEHAPDL (pregnancy leave) runs concurrently with FMLA, but consecutively with CFRA

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The Issues: Tensions between the Statutes (Cont’d)

FMLA/CFRA allows Employer to use employee’s accrued vacation while on leave; but not permitted to if employee is on workers’compensation or CA PDL pregnancy leaveSDI and PFL allow the employee to collect benefits from EDD for certain leaves, but they do not require the employer to provide such leave if it was not otherwise available under an applicable leave statute or policy

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Common Challenges Facing Employers

When to designate/provide notice of FMLA/CFRA leave (The “serial call-in sick” pattern)Under what circumstances can an Employer replace or terminate an employee who is out on FMLA/CFRA leave? (The Wally Pip – Lou Gehrig scenario)How to handle the non-work related medical condition requiring extended leave (Balancing FMLA/CFRA, ADA/disability, SDI, and Company policies and benefits)

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Common Challenges Facing Employers (Cont’d)

When can the Employer replace an employee who is out on extended workers’ compensation leave and how to do it right (Must still deal with FMLA/CFRA and ADA/Disability leave issues)Pregnancy leave and FMLA/CFRA, PDL and PFL (Can the employee really take up to seven months off?!)Intermittent Leave (Now you see them; now you don’t!)

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Must Follow Company Policies on Leaves

Remember, in addition to following the legal requirements, anytime you are addressing leave issues, it is very important to refer to and follow any Company policies covering such leaves

Especially with respect to the timing and duration of such leaves and any notice requirements

Failure to follow Company policies may be a direct basis for an employee to assert a discrimination claim

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Scenario 1: The “Serial Call-In Sick” Problem

Week 1Employee calls in sick Monday, again on TuesdayEmployee calls Wednesday and says will be out rest of week (Supervisor reminds employee that company will need a note verifying reason for absence per policy)

Week 2Employee calls in on Monday, stating will not be in all week; still sickSupervisor tells employee that employee must have a doctor’s note faxed in to support the absenceDoctor faxes note on Wednesday stating employee needs to be out for balance of the week

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Scenario 1 (Cont’d)

Week 3Monday, employee calls office “friend” stating will return on Wednesday with note verifying absenceWednesday, doctor faxes note stating employee will be unable to work for 30 daysThursday, HR first learns of employee absence

Week 4HR asks Supervisor for FMLA/CFRA documentation regarding prior time off. Supervisor says “I thought you handle all of that?”

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FMLA/CFRA Designation and Notice Issues

Employer finally sends employee a letter in Week 4, stating employee is being placed on FMLA/CFRA leave

When did the leave of absence begin?Can the leave be made retroactive to Monday of Week 1?What information should the letter contain?Can the Employer request a more detailed medical certification?

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Trigger of Leave Rights

Employee is not required to specifically ask for FMLA/CFRA leave of absence to trigger the obligation of the Employer to grant the leaveEmployer needs to have some information that reasonably leads the Employer to conclude that the employee might qualify for a leaveOnce that threshold is met, the Employer must provide appropriate written notice to the employee of his/her leave rights

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Employer’s Notification Obligation

Contents of the written notification (letter or other writing) must tell the employee about FMLA/CFRA leave:

Who is eligible and purposes for which it may be taken (including “key employee”status if applicable)Length of leave for which the employee would be entitled and that leave will count against annual allotmentEmployee’s obligation to provide the Employer with sufficient information (medical certification) to enable employer to verify eligibility and consequences for failing to do soEmployee’s return from leave rights to same or equivalent job and any fitness-for-duty certification requirementsHealth benefits continuation rights and requirements for payment, including consequences/liability for failure to pay or return to workWhat paid leave time (sick leave, vacation, PTO) may or must be used during the leave and the right to substitute paid leave

Notification to employee of covered leave rights should be made within five business days of start or notice of the leave

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Medical Certification to Support Leave

Employer should enclose Medical Certification along with letter - may request even if employee submitted doctor’s note regarding absence

Medical Cert asks for specific FMLA/CFRA leave infoEmployee’s obligation to have it returned

NOTE: In California, Medical Cert should not ask about “diagnosis” unless the patient consents, so standard FMLA form should be modified regarding question about “medical facts” or use CFRA FormEmployer may “challenge” Medical Cert by sending employee to Company selected doctor for evaluation

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Practical Considerations

Difficult situation to manage in order to determine whether and when leave rights are triggeredGood rule of thumb is that if the employee absence goes beyond one week, the Employer should send the leave notification letter

It forces the employee to provide information sufficient for the Employer to verify eligibility for leaveIt enables the Employer to more easily show that leave can be “started” retroactive to first day of absence and limits potential issues re. designation

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Practical Considerations (Cont’d)

Scenario 1 demonstrates the importance of having effective internal procedures regarding proper communications between Supervisors and HR regarding employee absences and having clearly defined responsibilities regarding FMLA/CFRA designation and sending of notice

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Scenario 2: Desire to Replace/Terminate Employee

Employee is on job-protected leave (FMLA/CFRA)Company hires temporary worker to fill in during employee’s absenceCompany learns during employee’s absence that employee was doing poor job, and the temporary replacement is performing extremely well and wants the jobCompany does not want employee back, or if it must, wants to put him in different position, but is willing to keep pay/benefits the same

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Legal Issues

Employee must be returned to his prior position unless the position no longer exists or is no longer available for reasons unrelated to the employee’s leaveEmployee’s right to reinstatement is no greater than it would be if he had not taken leaveBut, except for the highly compensated exemption, employee must be returned to the same or “an equivalent position with equivalent employment benefits, pay, and other terms and condition of employment”

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Reorganization Causing Lay Off or Transfer

Employees on job-protected leave may be laid off or transferred to different positions if the lay off or transfer is the result of a reorganization and the resulting lay off or transfer would have occurred regardless of whether the employee was on leaveThis can be risky if the decision to reorganize results only in a change for the employee on leave, and especially if it only occurs after a replacement employee has begun performing the job and only minor changes to the position in question are made

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Discovery of Prior Employee Misconduct

What if Company first learns of prior misconduct by the employee during the protected leave?Company has right to terminate provided it can show a legitimate reason that would have resulted in the termination regardless of the leave statusHigh risk of claim simply due to timing

Employer will need to clearly show legitimate reasonRaises sensitive issues regarding whether Employer should contact employee who is currently out on leave or wait until employee returns to complete investigation

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Scenario 3: Non-Work Related Injury/Illness

Five-year, marginal employee has non-work related ski accident requiring extensive surgery, hospital stay, recovery process, ultimately requiring six months of leaveCompany policy provides for medical disability leaves of up to four months

Note: Employee will be entitled to SDI benefits for entire six months of disability regardless of Company leave status

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Job Protected Leave

Employee receives 12 weeks of FMLA/CFRA leave; Employer may exhaust paid sick and vacation payCompany pays its customary share of group premiums during FMLA/CFRAAt end of FMLA/CFRA, Company policy still allows additional month of “approved” medical leave so employee effectively receives four months of “job protected” leave

However, after 12 weeks, the Company should send COBRA Notice because employee will be responsible to pay the 4th month of medical coverage

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Handling Request for Additional Leave

Employee requests additional one month of approved leave time because he continues to be disabled after four months

Statutory and Company policy leave both exhaustedBUT, Company has duty to “reasonably accommodate” known disability of employee

“Disability” is very easy to establish under CA law and now under ADA, as amended

Must engage in “interactive process” with employeeCompany would be at risk to terminate employee

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Handling Request for Additional Leave (Cont’d)

Company granted extra month of leave but now employee is asking for one more month and states he is “certain” to come back

Company still has duty to engage in interactive process and reasonably accommodate if necessaryDO NOT just send letter terminating employment for having exhausted available leave

May have to accommodate unless “undue hardship”If Company needs to fill position, may be safer to “replace” the employee first rather than terminating

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Scenario 4: Workers’ Compensation Injury

What if same length of injury as Scenario 3, but a work-related injury instead? Same analysis for FMLA/CFRA during the first twelve weeks of the leave, because workers’ comp injuries still count as FMLA/CFRA protected leaveAfter twelve weeks, can still provide COBRA notice if coverage would otherwise end under the terms of the medical plan

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Replacing Employee on Workers’ Comp Leave

At some point, Company may “fill” or “replace” the positionwith a new permanent employee, but only if required to do so “due to business necessity”

No specific definition of “business necessity”Will be analyzed on a case-by-case basis

Even though position is replaced, Company cannotterminate employee out on workers’ comp leaveInstead, inform employee that he is still on approved leave, and employee should contact Company “if and when released to return to work so that Company can determine any open and available positions for which the employee is qualified to perform at the time”

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Returning to Work Following WC Leave

Duty to accommodate return through reasonable accommodation (schedule, duties, flex time, etc.) with doctor certificationWhere employee was lawfully replaced while on leave, search for available open positions for which employee is qualified to perform

If no open positions, may “lay off” employee

May have ADA issues requiring additional or ongoing accommodationLabor Code 132a claims/retaliation risks

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Scenario 5: Pregnancy Leave Issues

Pregnant Employee submits doctors’ note two months prior to expected due date that employee can no longer work and takes leave on January 31Employee has C-Section delivery on April 5 due dateAt end of April, employee submits request to take 12 weeks off to care for newborn starting on June 1 through August 31. Employee says “I’ll see you on Sept. 4 after Labor Day!”

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Pregnancy Leave Issues

Cause of most confusion due to numerous kinds of leaves and benefitsPDL, FMLA and CFRA grant protected leave rightsEntitlement to SDI payments during disability andPFL payments afterwards to care for newbornCompany-paid leave time policies may also apply

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Pregnancy Leave Issues

Designate Leave as PDL and FMLA leave but not CFRA –Employee should be informed of rights to both (if eligible for FMLA/CFRA)

Should start 12 weeks of Company paid medical coverage

May exhaust available paid sick leave, but not vacation unless requested by employeeMay not question Doctor’s certification of disabilityEmployee is eligible to receive paid SDI benefits; should also coordinate with any Company provided benefits

After 12 weeks, Company should send COBRA Notice

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Pregnancy Leave Issues (Cont’d)

Pregnancy disability continues through birth, and then presumed for eight weeks after due to C-Section

Presumed six weeks of disability if normal deliveryAt end of disability period (not date of birth), PDL ends and CFRA begins, if timely requested

Also, paid SDI ends and PFL begins (if apply to EDD)Company should designate CFRA leave for up to maximum of 12 weeks

May now require employee to use vacation pay

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Pregnancy Leave Issues (Cont’d)

Given facts of scenario, employee timely requested CFRA leave to bond with newborn (30 days in advance for foreseeable leave, and within one year of birth of the baby), and is therefore entitled to protected CFRA leave – must hold same or substantially similar position open for employeeBut, because maximum 12 week period actually expires on August 24, Company could require employee to return one full week prior to Labor Day!

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Scenario 6: Managing Intermittent Leave

Employee submits Doctor’s note stating that due to chronic and severe migraine headaches that arise without advance warning, Employee should be permitted to take time off from work when they occur to go home, lie down and rest in quietEmployee periodically notifies Supervisor that he needs to leave early from work due to migraine and also periodically calls in to say he will be latePattern soon develops that he regularly leaves on Fridays, and also whenever OT is required, and calls in on most mornings following a late game on TV

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Intermittent Leave Issues

FMLA/CFRA permit employees to take “intermittent” leave when “medically necessary.” This includes periodic medical appointments, need for medical treatment, or where the employee needs to work a reduced work schedule “due to a serious medical condition.” Intermittent bonding leave only if Employer agrees.The 12 weeks of leave is measured in the increments that the employee is taking the time off, which could equal as many as 60full individual days per year or up to 120 half days! Key change in FMLA: Employer may use time increment for absences no greater than the shortest period it uses for other forms of leave but not greater than 1 HOUR (exceptions, e.g., flight attendant)CFRA requires an employer limit leave increments to shortest period of time the payroll system uses to account for absences or use of leave.

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Intermittent Leave Issues (Cont’d)

Employer may require an employee to transfer temporarily to an available alternative position for which the employee is qualified during an intermittent leave that is foreseeable due to planned medical treatment, provided the position has equivalent pay, benefits and schedule (but the position can have different duties)For a salaried exempt employee, special exception to normal FLSA rules permit the Employer to “deduct” the pro-rata amount from the salary to account for the partial days missed while on leave

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Intermittent Leave Issues (Cont’d)

For Intermittent leave, Employer should still designate, provide proper notice, and keep track of leave time taken (even though administratively difficult and probably futile to ever fully exhaust!)Can be very difficult to manage, especially if employee is intentionally “gaming” the systemMay also consider hiring private investigator to follow employee to document abuse

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Conclusion

Questions and Answers

Managing Family and Medical Leaves in California€¦ · Los Angeles, CA 90067 (310) 552-5000. 2...

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