LEAVE LAWS AND HOW THEY

Transcription

1 LEAVE LAWS AND HOW THEY IMPACT THE DISCIPLINE PROCESS ACHRO/EEO 2014 SHERATON GRAND SACRAMENTO HOTEL 1230 J STREET SACRAMENTO, CA Jeffery A. Morris, Esq. Melissa A. Lewis, Esq Historic Decatur Road, Suite 200 San Diego, CA (619) ; Fax (619) SAN DIEGO LOS ANGELES ORANGE COUNTY INLAND EMPIRE LAS VEGAS

2 Quick Reference Guide for Medical Leaves Family Medical Leave Act (FMLA) - Federal leave law that provides up to 12 weeks within a 12-month period of job and benefits protection to any employee who has worked for an employer for at least 12 months and at least 1,250 hours within the last 12 months immediately preceding the first day of leave. FMLA runs concurrently with PDL and CFRA, whenever possible. FMLA may be used for certain military related reasons, birth or placement of a child and care for newborn, care of a family member (only child, parent, or spouse) who has a serious health condition, or an employee s own serious health condition. Serious health condition: inpatient care, hospital, hospice, etc., or continuing treatment of certain conditions under supervision of health care provider. California Family Rights Act (CFRA) - California leave law that provides up to 12 weeks within a 12-month period of job protection to any employee who has worked for an employer for at least 12 months and at least 1,250 hours within the last 12 months immediately preceding the first day of leave. CFRA provides the employee time to bond with the newborn child. CFRA runs concurrently with FMLA whenever possible. CFRA may be used for care of a family member (child, parent, spouse, or domestic partner) or for the employee s own serious health condition. The same definition of serious health condition under FMLA applies. Pregnancy Disability Leave (PDL) - California provides for up to 4 months or 16 weeks of job protection for any woman disabled by a condition related to pregnancy. PDL runs concurrently with FMLA. PDL has no length of service or hours requirements. Fair Employment and Housing Act (FEHA) and Americans with Disabilities Act (ADA) - Additional leave time or other accommodation for a medical disability (such as transfers to different positions or part-time schedules) may be Page 1 of 7

3 required under these acts even where the employee does not qualify for one of the mandated leaves above or after the employee has exhausted the above leaves. Labor Code Sections 233 & 234: If the employer offers sick leave, the employer cannot deny an employee the right to use sick leave or discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using, or attempting to exercise the right to use, sick leave to attend to an illness of a child, parent, spouse, or domestic partner of the employee. Benefits during leave: If the employee is eligible for FMLA/CFRA, benefits are protected for the first 12 weeks of leave, but the employee is still responsible for the normal payroll deductions for his or her health insurance coverage. After FMLA/CFRA has been exhausted, the employee may continue to retain his or her benefits but may be responsible to pay the full premium cost for benefits depending how benefits are treated under other leaves. Example Combining Above for Pregnancy - The maximum time off mandated for pregnancy leave is determined by the employee's leave entitlement under state and federal leave laws. If the employee is covered under all applicable leave laws listed above, the maximum time off is up to 4 months disability (PDL), 12 weeks of bonding (CFRA), and possibly an additional period for FEHA and ADA accommodation. See sample timelines below: PDL 16 weeks Disability period CFRA 12 weeks Bonding Period FEHA and ADA Accommodation FMLA 12 weeks Page 2 of 7

4 (Typical Pregnancy - 6 weeks disability, 12 weeks bonding for employee eligible for PDL, FMLA, CFRA, and likely also vacation. Thereafter, FEHA and ADA accommodation may be required.) Example where FMLA and CFRA overlap: CFRA 12 weeks FEHA and ADA Accommodation FMLA 12 weeks (This would occur where the leave is based on the employee s own health condition that is covered under both FMLA and CFRA or where the leave is for the serious health condition of a family member covered under both FMLA and CFRA.) Example where FMLA and CFRA do not overlap: CFRA 12 weeks FMLA 12 weeks FEHA and ADA Accommodation (This would occur where coverage is only available under only FMLA (military related items or pregnancy disability) and later the employee takes leave for a condition covered under CFRA or where the leave only covered under CFRA (care Page 3 of 7

5 of domestic partner) then later in the year the employee takes leave for a family member covered under FMLA.) Note: the employee may also be eligible for compensation during their leaves under the following state programs: State Disability Insurance (SDI): This program is administered by the Employment Development Department (EDD) and pays approximately 55% of your wages. There is a 7-calendar day waiting period before benefits commence. Benefits are payable from the eighth day of disability up to 52 weeks of disability. Paid Family Leave Insurance (PFLI) - Under this program, employees may be eligible for up to six weeks of PFLI benefits after his or her disability ends, and during the period of bonding with a newborn child. This program pays approximately 55% of wages and is administered by the EDD. Page 4 of 7

6 Case Sample #1 An employee has been repeatedly showing up late and producing poor work quality. Her supervisor has verbally counseled her regarding her timeliness and work-product and documented the file each time. This pattern continued for a couple months. Finally, one day it was 45 minutes after the employee s start time and she had not shown up yet. The supervisor called the employee and told her not to come in that day. The supervisor began drafting a discipline letter for a oneweek suspension without pay. By lunch, the supervisor finished the letter, dated it, and submitted it to human resources for approval. That same afternoon, before the letter was sent out, the supervisor received an from the employee with an attached doctor s note indicating she was under great stress and needed to be out of work for two weeks for a stress leave. What should the supervisor do? Case Sample #2 An employee was having attendance issues. He was calling in at least once or twice a month, usually on the night before his work day. Sometimes he provided an excuse, stating his child was sick, other times he did not provide an excuse. His supervisor verbally reprimanded him, telling him that his next unexcused absence was going to result in a write-up and that if he is out for his child being sick, he needed to provide a doctor s note. Moreover, the supervisor indicated that, to any extent possible, he needed to provide more notice. The employee again called in the night before his shift saying he was going to be out the next day, without providing a reason. The next day the supervisor contacted HR to assist with drafting a write-up. Later that day, the employee contacted his supervisor and HR and indicated he needed to go out on FMLA leave to care for his child. 1) What should the supervisor do? 2) While he was on leave, his supervisor received a notice that half the employees from his department were being laid-off and the employee out on FMLA leave was on the layoff list. What should the supervisor do? Page 5 of 7

7 Case Sample #3 An office employee has poor work performance, consistently misses deadlines, fails to follow simple rules, and is rude to students who come into the office. The supervisor talks to the employee about his behavior, but has not documented the file. When the employee is counseled, he usually calls in sick for a couple days. If the counseling is particularly serious, the employee will be out for weeks at a time with a doctor s note. One day the employee was particularly rude to a student, so again, he was counseled. The employee called the next day to say he was sick and would not be in. But because of the employee s habit of calling in sick after reprimands, the employee has used all his sick leave, FMLA, and CFRA leave for the year. How should the supervisor respond to the employee s request? Case Sample #4 A professor has received poor peer and student reviews, often shows up to her classes late, and fails to turn in grades timely at the end of the semester. The professor has been written-up twice for these performance issues, but no other disciplinary action has been taken. One week the teacher failed to show up for her class at all. The students reported this to the office and the office called the professor she did not answer. The next day the professor contacted HR and requested a medical leave for her personal health issues and she provided a doctor s certification. HR sent the employee an FMLA\CFRA letter explaining the employee s rights and responsibilities and indicated this leave would be treated as FMLA\CFRA leave. The employee continued requesting leave for two-weeks at a time with a doctor s certification until she ran out of FMLA\CFRA leave. 1) HR received another two-week request for leave after the employee had exhausted all her FMLA\CFRA leave. What should HR do? 2) The employee has been out on an ADA\FEHA accommodation leave for 6 months. How does this impact the employee s reinstatement rights? 3) How long does HR need to allow the employee to remain out on leave? Page 6 of 7

8 Best Practices Discipline & Medical Leaves 1. Be familiar with the medical leave laws (FMLA, CFRA, PDL) and required accommodations (FEHA, ADA, Labor Code). 2. Document, document, document: Employee reviews should be thorough and forthright; date and document all performance issues and discipline, including verbal reprimands and unexcused absences and tardiness. 3. Take disciplinary action as the conduct occurs - do not wait for the employee to request leave to impose discipline. If the employee requests a leave before imposing the discipline, keep the disciplinary action on the books, and make a note in their file that it is pending. 4. If an employee requests medical leave or an accommodation during the discipline process, softly mention that the pending discipline will be addressed upon their return in the medical leave or accommodation letter. 5. Do not manage out of fear, but timing is everything: an employee cannot be terminated because of medical leave or because of the underlying disability. When an employee is terminated during a medical leave or after requesting one, it creates the appearance the employee is being terminated because of the medical leave or underlying disability. For that reason it is usually best to wait until an employee has returned from medical leave to impose discipline. If the conduct was severe enough, discipline may be imposed during a medical leave or after a request, but there will need to be strong documentation of the conduct, and you should consult with legal counsel prior to taking action. 6. Excessive Absenteeism: Do not discipline because of medical leaves or excused medical absences. Excessive absenteeism should be based on absences in excess of what you allow by policy including legally required leaves. Thus, authorized absences that are taken according to your absence and leave policies and required medical leaves should not considered excessive. 7. Enforce policies equally and consistently to all employees. This results in fair treatment and avoids claims of disparate treatment discrimination. Page 7 of 7