Negotiating the maze of overlapping leave laws

© 2017 Payne & Fears, LLP. All Rights Reserved. 1

Presented by:

Payne & Fears LLPL 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

Negotiating the Maze

Of Overlapping Leave Laws


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.


Disclaimer

The content in this presentation should not be

construed as legal advice. It is solely for an

educational/informative purpose.


How to Ask a Question

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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


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”)


Protected Bases for Leave

Pregnancy

Child Care/Bonding (Birth and Non-

Birth Parent)

Employee’s Own Health Condition

Employee’s Relative’s Health Condition


Pregnancy: Meet Jane

Jane is five months pregnant.

Which leave laws are potentially at play?


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


Pregnancy:

Amount of Leave Required

PDL – up to maximum of 4 months

CFRA – up to maximum of 12 weeks

ADA / FEHA – indefinite


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)

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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


Non-Birth Parent: Meet Bob

Bob’s girlfriend Linda just had a healthy baby.

Which leave laws are at play for Bob?


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


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


Employee’s Own Condition:

Meet Rod

Rod suffers from chronic back pain, which has

resulted in symptoms associated with depression.




The Laws

FMLA / CFRA – what is a “serious medical

condition”?

ADA / FEHA – who is a “qualified individual with a

disability.”



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?



Pay / Benefits

PTO / Sick Time

Healthy Workplace Healthy Family Act of 2014

City-Specific Paid Sick Leave Ordinances

SDI


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.



Care for a Relative

The Laws: FMLA / CFRA

Why not ADA / FEHA?

Which relatives qualify?

Amount of Leave Required:

12 weeks maximum


Care for a Relative: Pay / Benefits

Healthy Workplace Healthy Family Act of 2014

City-Specific Paid Sick Leave Ordinances

“Kin Care”


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.


Reinstatement Rights

FMLA / CFRA

To same or equivalent position

Defenses / Exceptions

PDL

To same or comparable “available job”

Defenses / Exceptions

Equivalent or Comparable Position

Insurance

Seniority


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?


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?


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?


Intermittent/Reduced Schedule Leave

Intermittent Leave

Reduced Schedule Leave

Application:

FMLA / CFRA

PDL

ADA / FEHA


Transfers

FMLA / CFRA

Generally, no duty

Intermittent/Reduced schedule?

PDL

Generally, no right for employer to unilaterally transfer.

Employer may have duty to transfer in certain

circumstances.

ADA / FEHA

May be a reasonable accommodation.


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.


Continuing Medical Coverage

FMLA /CFRA

Required on same basis as active employees.

Cap

Responsibility for premium

PDL

Treatment with other temporary disability leaves granted by

employer.

ADA / FEHA

Not required as reasonable accommodation.


Medical Certifications

FMLA / CFRA

Employer may require for serious health condition.

PDL

Employer may require, but with limitations.

ADA / FEHA

Employer may require only

if insufficient information


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?


Medical-Related Inquiries

What questions can an employer ask of the employee?

What should an employer not ask?


“Fitness for Duty” or “Return to Work”

Certification

FMLA / CFRA / PDL

Employer may require.

Uniform practice or policy

Contents

Notice to employee

Second opinions?


Going Above and Beyond

FMLA / CFRA / PDL, as well as

the various pay / benefit laws,

are minimum requirements.


Leave Laws: The Chart

Duration Pay / Benefits

Pregnancy 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

Baby Care /

Bonding

FMLA or CFRA: 12 weeks PTO / Sick / Kin Care / PDL /

City Ordinance

Employee’s Own

Health Condition

FMLA / CFRA: 12 weeks

ADA / FEHA ???

PTO / Sick / SDI / City

Ordinance

Caregiving for

Employee’s Relative

FMLA / CFRA: 12 weeks PTO / Sick / Kin Care / PDL /

City Ordinance


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© 2017 Payne & Fears, LLP. All Rights Reserved. 40© 2017 Payne & Fears, LLP. All Rights Reserved. 40

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