Negotiating the Maze Of Overlapping Leave Laws Presented by: Payne & Fears LLP L e i l a N a r v i d, M e l i s s a C l a r k e, a n d J o n a t h a n B l a c k March 2017 2017 Payne & Fears, LLP. All Rights Reserved. 1
CLE Credit Payne & Fears LLP is a State Bar of California approved Minimum Continuing Legal Education (MCLE) provider. All attendees who are members of the California State Bar will receive 1.5 hours of California MCLE credit for attending this webinar. 2017 Payne & Fears, LLP. All Rights Reserved. 2
Disclaimer The content in this presentation should not be construed as legal advice. It is solely for an educational/informative purpose. 2017 Payne & Fears, LLP. All Rights Reserved. 3
How to Ask a Question To the right of your screen, you will see a Questions window Type in your question and hit Send. 2017 Payne & Fears, LLP. All Rights Reserved. 4
Federal and California Laws Regulating Employee Leaves of Absence California Laws California Family Rights Act ( CFRA ) Reasonable accommodation for disabilities under the Fair Employment and Housing Act ( FEHA ) Pregnancy Disability Leave ( PDL ) under FEHA Paid Sick Leave: Healthy Workplace Healthy Family Act of 2014, and City-Specific Ordinances Kin Care under Labor Code Section 233 2017 Payne & Fears, LLP. All Rights Reserved. 5
Federal and California Laws Regulating Employee Leaves of Absence Federal Laws Family and Medical Leave Act ( FMLA ) Leave as reasonable accommodation under the Americans with Disabilities Act ( ADA ) 2017 Payne & Fears, LLP. All Rights Reserved. 6
Protected Bases for Leave Pregnancy Child Care/Bonding (Birth and Non- Birth Parent) Employee s Own Health Condition Employee s Relative s Health Condition 2017 Payne & Fears, LLP. All Rights Reserved. 7
Pregnancy: Meet Jane Jane is five months pregnant. Which leave laws are potentially at play? 2017 Payne & Fears, LLP. All Rights Reserved. 8
Pregnancy: The Laws California s Pregnancy Disability Leave (PDL) An employee who is disabled due to pregnancy, childbirth, or related medical conditions FMLA / CFRA? ADA / FEHA 2017 Payne & Fears, LLP. All Rights Reserved. 9
Pregnancy: Amount of Leave Required PDL up to maximum of 4 months CFRA up to maximum of 12 weeks ADA / FEHA indefinite 2017 Payne & Fears, LLP. All Rights Reserved. 10
Pregnancy: Pay / Benefits Can I force my employee to use accrued PTO, Sick, or Vacation? PDL Generally, No. FMLA / CFRA It depends. Non-Employer Benefits SDI Paid Family Leave (PFL) 2017 Payne & Fears, LLP. All Rights Reserved. 11
Pregnancy: Pay / Benefits Paid Family Leave (PFL): 6 weeks of paid time off for birth of child, adoption, or foster placement. Benefits paid from taxes on employee s pay. Relationship to PDL / FMLA / CFRA 2017 Payne & Fears, LLP. All Rights Reserved. 12
Non-Birth Parent: Meet Bob Bob s girlfriend Linda just had a healthy baby. Which leave laws are at play for Bob? 2017 Payne & Fears, LLP. All Rights Reserved. 13
Non-Birth Parent The Laws: FMLA / CFRA only Why not PDL or ADA / FEHA? Amount of Leave: under FMLA / CFRA, up to 12 weeks Unlike with pregnancy, no need to worry about issues relating to PDL 2017 Payne & Fears, LLP. All Rights Reserved. 14
Non-Birth Parent: Pay / Benefits Vacation Pay / PTO (under FMLA / CFRA) Paid Family Leave (PFL): 6 weeks of paid time off for birth of child, foster placement or adoption of child. Benefits paid from taxes on employee s pay. Relationship to FMLA / CFRA 2017 Payne & Fears, LLP. All Rights Reserved. 15
Employee s Own Condition: Meet Rod Rod suffers from chronic back pain, which has resulted in symptoms associated with depression. Which leave laws are potentially at play? 2017 Payne & Fears, LLP. All Rights Reserved. 16
Employee s Own Condition: The Laws FMLA / CFRA what is a serious medical condition? ADA / FEHA who is a qualified individual with a disability. 2017 Payne & Fears, LLP. All Rights Reserved. 17
Employee s Own Condition: Amount of Leave Required Amount FMLA / CFRA up to maximum of 12 weeks ADA / FEHA variable FMLA / CFRA How do I determine how much leave my employee is entitled to? 2017 Payne & Fears, LLP. All Rights Reserved. 18
Employee s Own Condition: Pay / Benefits PTO / Sick Time Healthy Workplace Healthy Family Act of 2014 City-Specific Paid Sick Leave Ordinances SDI 2017 Payne & Fears, LLP. All Rights Reserved. 19
Care for a Relative: Meet Dutiful Scott Scott s elderly mother suffers from kidney disease, and Scott must miss work from time to time to care for her. Which leave laws are potentially at play? 2017 Payne & Fears, LLP. All Rights Reserved. 20
Care for a Relative The Laws: FMLA / CFRA Why not ADA / FEHA? Which relatives qualify? Amount of Leave Required: 12 weeks maximum 2017 Payne & Fears, LLP. All Rights Reserved. 21
Care for a Relative: Pay / Benefits Healthy Workplace Healthy Family Act of 2014 City-Specific Paid Sick Leave Ordinances Kin Care 2017 Payne & Fears, LLP. All Rights Reserved. 22
Termination While on Leave FMLA, CFRA, PDL: Generally, job is protected for duration of leave But: Employees have no greater rights than they would have had if continuously employed. How to manage performance. 2017 Payne & Fears, LLP. All Rights Reserved. 23
Reinstatement Rights FMLA / CFRA PDL To same or equivalent position Defenses / Exceptions To same or comparable available job Defenses / Exceptions Equivalent or Comparable Position Insurance Seniority 2017 Payne & Fears, LLP. All Rights Reserved. 24
FMLA, CFRA, and PDL : Leave Overlap Hypotheticals Hypothetical No. 1 Jane calls her supervisor in the morning, leaves a message that she is very sick and needs at least a week off from work What should the supervisor do? How much time can Jane take off? Hypothetical No. 2 Same as No. 1. After being provided with FMLA paperwork, Jane s doctor writes only that Jane is sick from being four months pregnant What should human resources do? How much time can Jane take off? 2017 Payne & Fears, LLP. All Rights Reserved. 25
FMLA, CFRA, and PDL : Leave Overlap Hypotheticals Hypothetical No. 3 Same as No. 1. Jane s husband Jack also works for the Company. Jack tells human resources that he and Jane want to take the maximum time off for the birth of the baby. How much time can Jane and Jack each take off? Hypothetical No. 4 Bill is scheduled to be terminated for performance and attendance problems. On the day of the termination meeting, Bill presents a note that says that he has a colon disorder. Should Bill be terminated? What should human resources do? 2017 Payne & Fears, LLP. All Rights Reserved. 26
Disability and Child Care: Leave Overlap Examples Employee takes one month of leave for her own disability (not pregnancy-related) and six months later asks for two months of child care leave. Employee is disabled by pregnancy, then requests maximum leave to care for new baby. What is her maximum leave? Employee is not disabled by pregnancy, and requests maximum leave for pregnancy and childcare. How much leave can she take? 2017 Payne & Fears, LLP. All Rights Reserved. 27
Intermittent/Reduced Schedule Leave Intermittent Leave Reduced Schedule Leave Application: FMLA / CFRA PDL ADA / FEHA 2017 Payne & Fears, LLP. All Rights Reserved. 28
Transfers FMLA / CFRA PDL Generally, no duty Intermittent/Reduced schedule? Generally, no right for employer to unilaterally transfer. Employer may have duty to transfer in certain circumstances. ADA / FEHA May be a reasonable accommodation. 2017 Payne & Fears, LLP. All Rights Reserved. 29
Use of Accrued Paid Time Off Healthy Workplaces, Healthy Families Act of 2014 (Labor Code 245, et seq.) Most California employers must provide eligible employees with paid sick leave. Use Accrual Cap Certification Kin Care (Labor Code 233) All California employers who offer sick leave must allow employees to use at least half of their paid sick leave to care for family member. 2017 Payne & Fears, LLP. All Rights Reserved. 30
Continuing Medical Coverage FMLA /CFRA PDL Required on same basis as active employees. Cap Responsibility for premium Treatment with other temporary disability leaves granted by employer. ADA / FEHA Not required as reasonable accommodation. 2017 Payne & Fears, LLP. All Rights Reserved. 31
Medical Certifications FMLA / CFRA PDL Employer may require for serious health condition. Employer may require, but with limitations. ADA / FEHA Employer may require only if insufficient information 2017 Payne & Fears, LLP. All Rights Reserved. 32
Medical-Related Inquiries Under what circumstances can the employer ask about the disability or serious health condition of an employee? Under what circumstances should the employer not make inquiries? 2017 Payne & Fears, LLP. All Rights Reserved. 33
Medical-Related Inquiries What questions can an employer ask of the employee? What should an employer not ask? 2017 Payne & Fears, LLP. All Rights Reserved. 34
Fitness for Duty or Return to Work Certification FMLA / CFRA / PDL Employer may require. Uniform practice or policy Contents Notice to employee Second opinions? 2017 Payne & Fears, LLP. All Rights Reserved. 35
Going Above and Beyond FMLA / CFRA / PDL, as well as the various pay / benefit laws, are minimum requirements. 2017 Payne & Fears, LLP. All Rights Reserved. 36
Leave Laws: The Chart Duration Pay / Benefits Pregnancy Baby Care / Bonding Employee s Own Health Condition Caregiving for Employee s Relative PDL (FMLA): 4 Months CFRA: 12 weeks ADA / FEHA:??? PDL: PTO / Sick / SDI CFRA: PTO / Sick / PFL / City Ordinance ADA / FEHA: PTO / Sick / SDI / City Ordinance FMLA or CFRA: 12 weeks PTO / Sick / Kin Care / PDL / City Ordinance FMLA / CFRA: 12 weeks ADA / FEHA??? PTO / Sick / SDI / City Ordinance FMLA / CFRA: 12 weeks PTO / Sick / Kin Care / PDL / City Ordinance 2017 Payne & Fears, LLP. All Rights Reserved. 37
Questions? Please feel free to use the control panel to type in any questions you might have. If we do not have sufficient time to answer your questions during today s webinar, we will send you a response via e-mail. 2017 Payne & Fears, LLP. All Rights Reserved. 38
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Leila Narvid - ln@paynefears.com Melissa Clarke - mec@paynefears.com Jonathan Black - jwb@paynefears.com IRVINE LAS VEGAS LOS ANGELES PHOENIX SALT LAKE CITY SAN FRANCISCO SILICON VALLEY 2017 Payne & Fears, LLP. All Rights Reserved. 40