NOVAtime Technology, Inc. presents FMLA and CFRA: Landmines for Employers Live Webinar ~ November 4, 2015 Featured Panelist: Marie D. Davis of Landegger Baron Law Group, ALC Exclusively Representing Employers Employment Law, Advice, Litigation and Solutions www.landeggeresq.com 1
Key Concepts Basic Entitlement Covered employers must provide up to 12 weeks of unpaid, job-protected leave to eligible employees for: Incapacity due to pregnancy, prenatal medical care or child birth Care for employee s child after birth, or placement for adoption or foster care Care for employee s spouse, son, daughter or parent with a serious health condition A serious health condition that makes the employee unable to perform their job 2
Key Concepts Military Entitlement Eligible employees with a spouse, son, daughter or parent on covered active duty or called to covered activity duty may use leave for qualifying reasons. Attending military events Arranging alternative childcare Addressing financial & legal arrangements Attending certain counseling sessions Attending post-deployment reintegration briefings 3
Key Concepts Military Entitlement Eligible employees may take up to 26 weeks of leave during a single 12-month period to care for a covered service member. Current members of the Armed Forces undergoing medical treatment, recuperation or therapy, in outpatient status, or on temporary disability retired list for a serious injury or illness A veteran discharged or released during five-year period prior undergoing medical treatment, recuperation, or therapy for a serious injury or illness 4
Key Concepts Benefits & Protections During FMLA leave, employer must maintain employee s health coverage. On return from leave, most employees must be restored to original or equivalent positions with equivalent pay, benefits, and other employment terms. Use of FMLA leave cannot result in the loss of any employment benefit accrued prior to leave. 5
Key Concepts Eligibility Employees are eligible if: They have worked for a covered employer for at least 12 months, Have 1,250 hours of service in the previous 12 months, and Their employer employs at least 50 employees within 75 miles. 6
Key Concepts Definition of Serious Health Condition Definition of a serious health condition Illness, injury, impairment, or physical or mental condition Involves either an overnight stay in a medical care facility or continuing treatment by a health care provider Either prevents the employee from performing their job or prevents their qualified family member from participating in daily activities 7
Key Concepts Use of Leave Leave can be taken intermittently or when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment to not disrupt employer s operations. Leave due to qualifying reasons can also be taken intermittently. 8
Key Concepts Substitution of Paid Leave for Unpaid Leave Employees may choose or employers may require the use of accrued paid leave. Employees must comply with the employer s normal paid leave policies. 9
Key Concepts Employee Responsibilities Employees must: Provide 30 days advance notice when the need is foreseeable or as soon as practicable and in compliance with employer s normal call-in procedures Provide sufficient information to determine if leave qualifies for FMLA protection and timing/duration of leave Note: Certification and periodic recertification may also be required. 10
Key Concepts Employer Responsibilities Covered employers must: Inform employees requesting leave of their eligibility/ineligibility (with reason given), additional information requirements, and the employees rights and responsibilities Inform employees if leave will be designated as FMLAprotected and the amount of leave counted against the employee s leave entitlement 11
Key Concepts Unlawful Acts by Employers It is unlawful for an employer to: Interfere with, restrain, or deny the exercise of any right provided under FMLA; and Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA. 12
Key Concepts Enforcement An employee may: File a complaint with the U.S. Department of Labor Bring a private lawsuit against an employer 13
FMLA & CFRA 4 Big Differences Pregnancy as a Serious Health Condition (SHC) Registered domestic partners equal spouses Qualifying Reason because of employee s or family member s active military duty Care for ill or injured service member New Family & Medical Leave Act (FMLA) Covered as a serious health condition. No change with new regulations. Not covered under FMLA. No change with new regulations. Up to 12 weeks of leave. Health benefits are included. Up to 26 weeks of leave during a 12-month period. Health benefits are included. California Family Rights Act (CFRA) Not covered. Instead, employee gets up to 4 months of pregnancy disability leave and 12 weeks of CFRA baby bonding leave. First 12 weeks of PDL can run concurrently with FMLA, and employer maintains health benefits. Covered, just like spouses. Domestic partner does not exhaust FMLA leave taking CFRA to care for partner. Not covered. Thus, CFRA leave not exhausted when FMLA is used. Covered if family member is a covered CFRA employee. If not, CFRA leave is not exhausted when FMLA is used. CFRA leave is 12 weeks, so last 14 would be FMLA. Indicates which law/regulation is more generous to employees.
FMLA & CFRA Establishing Coverage Establishing a Serious Health Condition (SHC) Establishing need to care for a family member with a SHC New Family & Medical Leave Act (FMLA) No change except an employee establishes a SHC by: Visiting a Health Care Provider (HCP) on 2 occasions & having 3 days of incapacity First visit must be in person within 7 days of incapacity along with treatment The HCP must determine if 2 nd visit is needed in 30 days New: To establish a chronic condition, periodic visits means 2 or more per year New: Incapable of self-care because of a mental or physical disability is determined at start of FMLA. ADA was amended so that more conditions might be considered disabilities. California Family Rights Act (CFRA) CFRA references old FMLA regulations to establish SHC. Pregnancy not included as a SHC. Employee may take leave when family member s SHC warrants the participation of the employee. The definition of SHC does not reference disability. It references illness, injury, impairment, or physical/mental condition.
FMLA & CFRA Computation of Time Periods Treatment of holidays New Family & Medical Leave Act (FMLA) New: When a holiday occurs during an employee s scheduled workweek and the employee is taking a full week of leave, the holiday counts against the employee s 12-week leave entitlement. If the employee is taking FMLA leave in increments of less than a week, the time counts against the FMLA entitlement only if the employee was required to work on the holiday. California Family Rights Act (CFRA) If a holiday falls within a CFRA leave week, the entire week is counted as CFRA leave, except in cases where the employer s business activity has temporarily ceased for 1 or more weeks. No similar provision for leave taken in increments of less than a week. 16
FMLA & CFRA Intermittent Leave 17 Scheduling intermittent leave Intermittent leave increments Calculating intermittent leave New Family & Medical Leave Act (FMLA) New: Employees must make a reasonable effort to schedule treatment so as not to unduly disrupt employer s operations. Intermittent/reduced schedule leave may be taken when medically necessary to care for a seriously ill family member, or because of the employee's serious health condition. Intermittent/reduced schedule leave may be taken to care for a newborn or newly placed adopted or foster care child only with the employer's approval. Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. Employees may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave. New: When an employee s schedule varies, employers must use average hours of prior 12 months to calculate entitlement. California Family Rights Act (CFRA) No comparable requirement An employer may limit leave increments to the shortest period of time that the employer s payroll system uses to account for absences or use of leave. Employee is entitled to 12 of their normally scheduled workweeks. No guidance on calculating.
FMLA & CFRA Intermittent Leave Overtime intermittent leave Docking pay of exempt employees New Family & Medical Leave Act (FMLA) New: If an employee would have been required to work overtime but could not because of FMLA-qualifying condition, the employee may be charged FMLA leave for hours not worked. Employers cannot assign OT to deplete FMLA leave entitlement. Employers may dock exempt employees pay for FMLA intermittent leave/reduced work schedule when paid leave is exhausted. California Family Rights Act (CFRA) No comparable requirement. No guidance. California employers dock exempt employees pay at own risk. 18
FMLA & CFRA Substitution of Paid Leave for FMLA/CFRA Vacation, personal time off (PTO), sick leave & disability benefits New Family & Medical Leave Act (FMLA) Paid leave policy: Meeting terms & conditions of paid leave may be required to substitute paid leave for unpaid FMLA leave. No paid leave policy: Employee may elect to use vacation or PTO. Supplementing disability benefits: Employer and employee may agree (but can t require) to augment paid disability payments while on FMLA with other forms of accrued time. California Family Rights Act (CFRA) No distinction between employers with/without paid leave policies. Employer or employee may require use of vacation, other PTO, or sick leave for employee s own SHC. Employer or employee may mutually agree to use sick leave for any other reason. No regulation on supplementing disability benefits with other forms of paid leave. Employees can elect to use vacation/pto during PDL, but employers cannot require it. Employers can require using sick leave. California employers must give notice of SDI/PFL benefits at hire & when given notice of qualifying event.
FMLA & CFRA Employer Notice Requirements For all types of leave Notice requirements: employers subject to PDL & family leave New Family & Medical Leave Act (FMLA) Employers must post a notice (print or electronic) explaining leave rights in a conspicuous place where applicants and employees tend to congregate If an employer publishes an employee handbook or other written guidance, all information in the poster must be in handbook/guidance. If no guidance exists, all information in poster must be distributed (in print or electronically) to employees upon hiring. Federal law requires posting WH 1420 (FMLA poster) California Family Rights Act (CFRA) Same posting requirements. In addition, California s Department of Fair Employment and Housing (DFEH) provides informational brochures, but employers are not required to distribute these. See: www.dfeh.ca.gov State law requires a combined PDL/CFRA notice. 20
FMLA & CFRA Leave Designation Notifying employee leave was approved Retroactive designation New Family & Medical Leave Act (FMLA) When an employer receives leave notice, they must provide employee with notice of rights & responsibilities regarding FMLA leave. When there is sufficient information to determine whether leave is FMLA protected, an employer must notify an employee within 5 business days whether the employee is leave eligible, with at least one reason given. Designation notice must include essential job functions and fitness for duty certification requirement (if required). New: Employers may retroactively designate leave as FMLA leave, so long as there is no individualized harm. If there is harm, employer may be liable. California Family Rights Act (CFRA) Requires 10 business days notice. Employer is not required to give reason for not granting CFRA leave nor provide employee with list of employee s essential job functions. Follows FMLA. Employers may not retroactively designate leave as CFRA leave after the employee has returned to work, except under those same circumstances provided for in FMLA & its implementing regulations for retroactively counting leave as FMLA leave. 21
FMLA & CFRA Medical Certification Identifying the employee s own Serious Health Condition (SHC) Second & third opinions for employee s SHC New Family & Medical Leave Act (FMLA) New: Employers can ask for a diagnosis. If additional leave is requested at the end of the original leave period, the employer may require the employee to obtain recertification. Employer may require a second opinion, designated & paid for by employer. If opinions conflict, then a third opinion (with a mutually selected provider) can be required. Third opinion is final & binding. California Family Rights Act (CFRA) An employer cannot ask for a diagnosis, but it may be provided at employee s option. Sufficient information to determine eligibility: The date, if known, on which the SHC began; The probable duration of the condition; and A statement that, due to the SHC, the employee is unable to work at all or is unable to perform any one or more of the essential functions of his/her position. Can use Certification of Health Care Provider form or its equivalent provided that underlying diagnosis is not disclosed without consent. Same requirements.
FMLA & CFRA Medical Certification Identifying the family member s serious health condition Second opinion to care for family member New Family & Medical Leave Act (FMLA) Certification may identify the SHC. New: Employers can get second and third opinions. California Family Rights Act (CFRA) The certification need not but, at employee s option, may identify the SHC. Sufficient information to determine eligibility: The date, if known, on which the SHC began The probable duration of the condition Health care provider s estimate of time needed to care for family member A statement that the SHC warrants the employee s providing care during period of treatment or supervision of family member May use same certification forms as for employee s own SHC. Employers cannot get second and third opinions. The employer must accept the certification. 23
FMLA & CFRA Medical Certification Frequency of recertification New Family & Medical Leave Act (FMLA) New: May request recertification: Every 30 days for an absence, unless certification is for more than 30 days If a longer period is provided, certification cannot occur before period expires, unless change occurs or employer doubts initial certification. Employers can request recertification every 6 months, even where certification states a longer period. Employer can obtain new initial certification (and second/third opinions if necessary) each new year. California Family Rights Act (CFRA) Upon expiration of the time period which the health care provider originally estimated that the employee needed to take care of the employee s child, parent or spouse, the employer may require the employee to obtain recertification if additional leave is requested. 24
FMLA & CFRA Medical Certification Fitness for duty returning from medical leave for employee s own SHC New Family & Medical Leave Act (FMLA) Intermittent Leave: A fitness-for-duty statement may be required every 30 days if intermittent leave is used and safety concerns to return exist, but requirement must be included in designation notice. Employee can t be terminated while awaiting fitness-for-duty certification. Return from Block of Leave: Employer may require employee s health care provider to certify the employee can perform essential job functions listed in designation notice. California Family Rights Act (CFRA) Fitness-for-duty statements for intermittent medical leave are not addressed. Employer may require that the employee obtain a release to return-to-work from his/her healthcare provider only if employer has a uniformly applied practice or policy of requiring such releases from other employees returning to work after illness, injury or disability. 25
Contact Information Thank you for attending! Landegger Baron Law Group* NOVAtime Technology, Inc. Marie D. Davis, Esq. marie@landeggeresq.com 15760 Ventura Blvd., Suite 1200 Encino, California 91436 751 Daily Drive, Suite 325 Camarillo, California 93010 Los Angeles Office: 818.986.7561 Ventura County Office: 805.987.7128 Scott Rose, Enterprise Sales scott.rose@novatime.com 1440 Bridgegate Dr., Suite 300 Diamond Bar, California 91765 Headquarters: 909.895.8100 27