THE NEW FMLA REGULATIONS: WHAT ABOUT CALIFORNIA?

Transcription

1 Picture Placeholder 7.5 h x 4.38 w THE NEW FMLA REGULATIONS: WHAT ABOUT CALIFORNIA? PIHRA 2009 MID-YEAR LEGAL SEMINAR - JUNE 2009 PRESENTED BY E GEORGE JOSEPH NOSSSAMAN LLP nossaman.com Copyright, 2009 Nossaman LLP. All Rights Reserved.

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 the past 12 months. Employee works at site with at least 50 employees within 75 miles. 2

3 Basic Leave Rights Under FMLA/CFRA An employee is allowed up to 12 workweeks of leave during a 12-month period because of: Birth of employee s child, care for a newborn Placement of child with employee due to adoption or foster care Care for employee s child, parent, spouse or domestic partner with serious health condition Employee s own serious health condition Military exigency An employee is allowed to 26 workweeks of leave under FMLA to care for ill/injured family member in military service. 3

4 Change in FMLA Regulations 2006: U. S. Dept. of Labor ( DOL ) requests comments on FMLA and receives over 20,000 comments. January 2008: FMLA statute is amended to add military leave provisions. February 2008: DOL issues proposed new regulations under FMLA. November 17, 2008: DOL issues final revised FMLA regulations. January 16, 2009: Final revised regulations become effective. 4

5 Key Question What does this mean in California? 5

6 Some Guidance CFRA Regulations incorporate FMLA regulations as they existed in January 1995, except where inconsistent with CFRA or other California laws. New regulations have not yet been incorporated Unless/until they are, do not apply them unless they are consistent with CFRA or provide more rights/protection to employees California often is more protective of employees. When in doubt, apply the provision that affords more rights/protection to the employee. 6

7 Hypothetical Bob begins working for ABC company in January He works for five years, then resigns to take a different job in January In January 2008, Bob is re-hired at ABC. In October 2008, he requests to take a leave under FMLA/CFRA for his serious health condition. Is Bob entitled to FMLA/CFRA leave? 7

8 Break In Service Under the New FMLA Regulations Answer under FMLA: No. In calculating whether an employee has met the 12- month service requirement, the service need not be consecutive. But under the new FMLA regulations, an employer is not required to count periods of employment prior to a break in service of seven or more years. 29 C.F.R (b) Answer under CFRA: Yes. Since CFRA has not yet incorporated the new FMLA regulations, it is recommended that the seven year limitation on break in service not be applied. 8

9 Hypothetical Julie begins working for ABC company on January 1, She works in excess of 1,250 hours through the end of November. On December 1, she begins a medical leave due to surgery, and returns on February 1, Is any of Julie s leave protected under FMLA/CFRA? 9

10 Qualifying for FMLA/CFRA While on Leave Answer under FMLA and CFRA: Yes the month of January The new FMLA regulations make clear that an employee may be on non-fmla leave at the time she first qualifies for FMLA. Any portion of the leave taken after she qualifies will count as FMLA leave. 29 C.F.R (d) Since this is beneficial to the employee it should apply under CFRA. Reminder: Time on leave counts toward satisfaction of the 12- month requirement. Time on leave does not count toward satisfaction of the 1,250 hour requirement (other than National Guard or Reserve service or FMLA pregnancy disability leave). 10

11 What is a Serious Health Condition? Inpatient care (overnight stay) Absence (> 3 days) plus treatment Chronic condition (e.g., asthma, epilepsy diabetes) Permanent/long term condition (e.g., Alzheimer s, severe stroke, terminal illness) Multiple treatments for non-chronic condition (e.g., cancer, severe arthritis, kidney disease) Incapacity due to Pregnancy (FMLA only) 11

12 Hypothetical Peter sprains his ankle on Friday at noon, and leaves work to see the doctor. He is incapacitated until 11:00 a.m. Monday morning, when he returns to work. He does not have a second appointment with the doctor until 45 days later. Is Peter entitled to FMLA/CFRA leave for his absence on Friday? 12

13 Definition of Serious Health Condition Under the New FMLA Regulations Answer under FMLA: No. The FMLA regulations have revised the definition of serious health condition with respect to incapacity plus treatment. The period of incapacity must now be for more than three full consecutive calendar days, and the two occasions of treatment must both occur within 30 days of the first day of incapacity. 29 C.F.R (a) 13

14 Definition of Serious Health Condition Under CFRA Answer under CFRA: Yes. Since the new regulations have not been incorporated, the existing definition of serious health condition should still be applied. That is, if the employee is incapacitated for more than 3 consecutive calendar days and sees a doctor twice, he is eligible for FMLA/CFRA leave. 14

15 Hypothetical Henry has diabetes, and sees a doctor once a year for treatment and monitoring of his condition. Based on his doctor s certification, Henry needs to take time off intermittently throughout the year due to his condition. Do Henry s intermittent absences qualify for FMLA/CFRA leave? 15

16 Definition of Serious Health Condition Under the New FMLA Regulations Answer under FMLA: No. Under the new FMLA regulations, a chronic condition qualifies as a serious health condition only if there are at least two visits per year to a health care provider or nurse. 29 C.F.R (c) Answer under CFRA: Yes. Since CFRA has not yet incorporated the new FMLA regulations, it is recommended that the previous definition, which requires only periodic visits, be applied. 16

17 Definition of Health Care Provider Under the New FMLA Regulations Who is a health care provider? Doctor of medicine/osteopathy Podiatrist, dentist, psychologist, optometrist, chiropractor nurse practitioner, nurse-midwife, clinical social worker, physician assistant (new under FMLA regulations) Christian Science Practitioners Health Care Provider as defined under employer s health insurance. This definition applies under both FMLA and CFRA. 17

18 Hypothetical Michael requests that his employer provide time off under FMLA/CFRA so that he can care for his wife, who has a serious health condition. Michael has mentioned to his supervisor in the past that his motherin-law lives with him and his wife, and helps out a lot around the house. The supervisor tells Michael that since his mother-in-law is able to care for his wife, Michael is not needed to care for her, and denies the leave. Has Michael s supervisor acted properly? 18

19 Meaning of Needed to Care For Clarified Under FMLA Answer under FMLA and CFRA: No. The FMLA regulations now make clear that the employee need not be the only person available to care for the family member in order to be entitled to leave for that purpose. 29 C.F.R (b) Because this is a change that benefits the employee, it should also apply under CFRA. 19

20 Hypothetical XYZ Company recognizes Thanksgiving as a company holiday. Stephanie is out for the entire week of Thanksgiving on a FMLA/CFRA leave. Is Thanksgiving counted toward exhaustion of Stephanie s FMLA/CFRA entitlement? Does the answer change if Stephanie is out on leave only for Monday through Wednesday of that week? 20

21 Effect of Holiday While on FMLA/CFRA Leave Answer under FMLA and CFRA: Yes, and yes. Under the new FMLA regulations, if an employee is out on FMLA leave during an entire week containing a holiday, that holiday is counted toward exhaustion of the leave entitlement. However, if the employee takes less than a full week, the holiday counts toward exhaustion only if the employee is actually out on that day. 29 C.F.R (h). This clarification should apply under CFRA as well. 21

22 Hypothetical Brian is employed as a flight attendant on a California airline. He normally works a six hour shift. He takes intermittent FMLA/CFRA for periodic doctor visits that require him to be off work for two hours. How much FMLA/CFRA time is exhausted for each of Brian s doctor visits? 22

23 Minimum Intermittent Leave Increments Under the New FMLA Regulations Answer under FMLA: Six hours. Under the new FMLA regulations, an employer may charge an employee for more leave than he needs if the employee is physically unable to access a worksite after a shift begins. 29 C.F.R (a)(2). Answer under CFRA: Two hours. The CFRA regulations have not yet adopted this change. 23

24 Hypothetical Carole goes out on leave that qualifies under both FMLA and CFRA, in order to care for her husband who has a serious health condition. Carole s employer tells her that she must use all her available accrued sick leave while she is out. Does the employer have the right to require that Carole use her sick leave for this purpose? 24

25 Substitution of Paid Leave Under the New FMLA Regulations Answer under FMLA: Yes. Under the new FMLA regulations, is now clear that there are limitations on which type of paid leave may be substituted for which FMLA leave reason. 29 C.F.R Answer under CFRA: No. Under CFRA, an employer cannot require an employee to use sick leave for the birth, adoption or placement of a child, or to care for a sick family member. 2 Cal. Code Regs (b). 25

26 Hypothetical Dan is injured while at work and suffers a severe disability. He is out on FMLA CFRA leave, during which he receives state disability and workers compensation payments. Dan s employer tells him that during this leave he must use his accrued PTO. Can Dan s employer require that Dan use his PTO for this purpose? 26

27 Impact of Disability and Workers Comp. Benefits on Substitution of Paid Leave Answer under FMLA and CFRA: No. Per new FMLA regulations, employee receiving disability of workers comp. benefits is not on unpaid leave, so rules regarding substitution of paid leave do not apply. However, if disability/workers comp. pay is only partial, employer and employee may agree to use paid leave to make up the difference. 29 C.F.R (d), (e). Same rule should apply under CFRA. 27

28 Hypothetical Wendy suffers a back injury while at work, and is out on workers compensation leave for one month. This leave runs concurrently with FMLA CFRA leave. Wendy returns to work and accepts a light duty assignment for the next nine months. With her doctor s permission, Wendy then requests that she returns to her regular work assignment. How much of Wendy s FMLA/CFRA entitlement did she use up? Is Wendy legally entitled to reinstatement to her regular position? 28

29 Effect of Light Duty on FMLA/CFRA Entitlement Answer under FMLA and CFRA: One month, and yes. Per new FMLA regulations, time spent working on light duty does not count toward exhaustion of FMLA entitlement. Employees on light duty retain reinstatement rights through the end of the applicable FMLA year. 29 C.F.R (d). Since this rule is beneficial to employees, the same rule should apply under CFRA. 29

30 Employer Notification Requirements Under FMLA and CFRA Three Types of Written Notice Under FMLA: Poster/General Notice (Form WH 1420) Notice of Eligibility and Rights & Responsibilities (Form WH-381) Designation Notice (Form WH 382) 30

31 Employer Notification Requirements Under FMLA and CFRA Best Practices: Post and distribute both FMLA and CFRA general notices/information. Include required information in employee handbook. Modify the Notice of Eligibility and Rights & Responsibilities to comply with CFRA (e.g., reference to domestic partners, no disclosure of health condition) Modify the FMLA Designation Notice to comply with CFRA 31

32 Employer Notification Requirements Under FMLA and CFRA New FMLA Regulations Within 5 (formerly 2) business days after employer is aware of employee s need for FMLA, employer must provide (1) Notice of Eligibility; and (2) Notice of Rights and Responsibilities. 29 C.F.R (b) and (c) CFRA As soon as practicable, but no later than 10 calendar days after employer is aware of need for CFRA leave, employer must respond to the employee s request for leave. 2 Cal. Code Regs (a)(6) 32

33 Employer Notification Requirements Under FMLA and CFRA Best Practice: Provide initial response to employee request, together with all required documents under both CFRA and FMLA, as soon as possible, but in no event more than 5 business days after learning of the need for FMLA/CFRA leave. If employer has enough information at that time to designate the leave as qualifying under FMLA/CFRA, the employer should do so. 33

34 Employer Designation Requirements Under FMLA and CFRA New FMLA Regulations Within 5 (formerly 2) business days after employer has sufficient information determine whether a leave qualified under FMLA, the employer must provide employee with a notice stating whether the leave is designated as FMLA. 29 C.F.R (d) CFRA There is no express deadline for designation, other than the requirement that an employer respond to an employee request within 10 calendar days after employer is aware of need for CFRA leave. 2 Cal. Code Regs (a)(6) 34

35 Employer Designation Requirements Under FMLA and CFRA Best Practice: Employer should designate leave as qualifying under FMLA/CFRA (or not) as soon as possible, but not later than 5 business days after employer has sufficient information to make the determination. 35

36 Hypothetical Mary notifies her employer, XYZ Company, that she needs to take time off due to a serious health condition. XYZ allows Mary to take the time off, but does not inform her whether it will qualify as FMLA/CFRA leave. After Mary has been on leave for two weeks, XYZ realizes its mistake and sends Mary a letter, telling her that her leave will be counted as FMLA/CFRA, beginning as of the date she first went on leave. Can XYZ retroactively designate Mary s leave as FMLA/CFRA in this fashion? 36

37 Retroactive Designation of Leave Under the New FMLA Regulations Answer under FMLA: Yes, unless the late designation has harmed Mary in some way. The new regulations follow the U. S. Supreme Court Decision in Ragsdale v. Wolverine World Wide, Inc (2002) 535 U.S. 81 an employer may now retroactively designate leave as qualifying under FMLA, but may be liable for any damages suffered by the employee as a result of the delayed designation. 29 C.F.R. 301(d), (e) and 300(e). 37

38 Retroactive Designation of Leave Under CFRA Answer under CFRA: Probably not. Because the CFRA regulations have not yet been amended to incorporate the changes to the FMLA regulations, an employer should not rely on a retroactive designation without consulting with legal counsel. 38

39 Hypothetical Alan provides a medical certification from his health care provider stating that he has a serious health condition and needs leave under FMLA/CFRA. His immediate supervisor is having difficulty understanding the certification and doubts its validity. He calls Alan s health care provider to ask a series of questions to make sure the certification is valid, and clarify the nature of his health condition. Has Alan s supervisor acted properly? 39

40 Authentication/Clarification of Medical Certification Under the New FMLA Regulations Answer under FMLA: No. While an employer under FMLA may now contact the employee s health care provider to seek authentication or clarification regarding a serious health condition, the contact may only be made by the employer s HR professional, leave administrator, management official or a health care provider never by the employee s direct supervisor. 40

41 Authentication/Clarification of Medical Certification Under CFRA Answer under CFRA: No. Under CFRA, an employer may not require that the employee provide any information regarding the nature of the serious health condition. 2 Cal. Code Regs (a)(1), (2). An employer may contact the health care provider to request authentication of the document (i.e., that it was really sent by the health care provider), or to understand the handwriting, but that contact may now only be made by the employer s HR professional, leave administrator, management official or a health care provider never by the employee s direct supervisor. 41

42 Best Practice: Medical Certification Form Under FMLA/CFRA Be sure your medical certification form complies with both FMLA and CFRA. Do not use the U.S. Department of Labor form without modification. 42

43 Medical Recertification Under FMLA/CFRA General Rule under FMLA and CFRA: An employer may request recertification no more often than every 30 days, or longer if the minimum duration of the leave is longer. 29 C.F.R (a); 2 Cal. Code Regs (b)(1),(2). 43

44 Medical Recertification Under New FMLA Regulations If an employee is on intermittent FMLA leave for more than 6 months, the employer may request recertification once every 6 months. 29 C.F.R (b). Because there is no comparable provision under CFRA, recertification for intermittent leave may only occur after expiration of original leave period. 2 Cal. Code Regs (b)(1),(2). 44

45 Medical Recertification Under New FMLA Regulations Employer may request recertification more frequently if employee requests an extension, there is a significant change in circumstances, or there is reason to doubt the validity of the certification. 29 C.F.R (c). Because there is no comparable provision under CFRA, recertification may only occur after expiration of original leave period. 2 Cal. Code Regs (b)(1),(2). 45

46 Medical Recertification Under New FMLA Regulations In seeking recertification, employer may provide information to health care provider regarding employee s absence pattern, and ask whether it is consistent with employee s need for leave given the serious health condition. 29 C.F.R (e). Because there is no comparable provision under CFRA, recertification may only occur after expiration of original leave period. 2 Cal. Code Regs (b)(1),(2). 46

47 Military Caregiver Leave Under the New FMLA Regulations An employee is entitled to up to 26 weeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness who is the employee s spouse, parent, child or next of kin. 29 C.F.R ,

48 Military Caregiver Leave Under the New FMLA Regulations Next of kin means the service member s nearest blood relative (aside from spouse, parent, child) in the following order: blood relative with legal custody sibling grandparent aunt or uncle first cousin Service member may designate another blood relative. 48

49 Military Caregiver Leave Under the New FMLA Regulations Leave year is based on a single 12-month period beginning on the first day of leave. Caution: may be different from your company s calculation of leave under FMLA/CFRA for other purposes. 49

50 Military Caregiver Leave Under the New FMLA Regulations Certification requirements apply. 29 C.F.R Caution: do not ask for medical facts in California certification form should be revised. No recertification. No second/third opinions. This leave will not count toward use of CFRA entitlement unless it qualifies. 50

51 Potential Stacking of FMLA/CFRA/PDL Leaves Assume a woman cares for her cousin who is injured in the line of duty, then has a difficult pregnancy, then takes time off for baby bonding: 26 weeks of military caregiver leave (does not qualify for CFRA); plus 17 ½ weeks of pregnancy disability leave; plus 12 weeks of baby bonding leave under CFRA Total: 55 ½ weeks of leave 51

52 Qualified Exigency Leave Under the New FMLA Regulations An employee is entitled to up to 12 weeks of FMLA leave due to a qualifying exigency arising out of the fact that the employee s spouse, child or parent has been called up to active duty. 29 C.F.R Does not apply to family members who are in the regular armed forces. Does not count toward use of CFRA entitlement. Certification requirements apply. 29 C.F.R

53 Qualified Exigency Leave Under the New FMLA Regulations Qualifying exigency includes: short-notice deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities where employer and employee agree to the leave. 29 C.F.R (a)(1) (8) 53

54 Questions? E. George Joseph Nossaman LLP Von Karman Avenue, Suite 1800 Irvine, CA nossaman.com/employmentlaw 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. 54