Mandated Leaves in California

Employers in California must comply with three overlapping statutes that require them to give their employees time off -- the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and the pregnancy disability leave provisions of the Fair Employment and Housing Act (PDL). This post will give you the basics. If you would like training on the details of these statutes, please contact us at calvin.house@gphlawyers.com.

FMLA

Under this statute, employers with 50 or more employees must grant eligible employees up to 12 weeks off per year in the following circumstances -- (1) for the employee's own serious health condition, (2) when needed to care for a spouse, child or parent with a serious health condition, (3) in connection with the birth of a child or placement of a child for adoption or foster care (sometimes called baby bonding leave), (4) for exigencies created by the call up of a family member from the reserves or National Guard, and (5) when needed to care for a family member in the military who has been injured in the line of duty (this entitlement is up to 26 weeks). An employee is eligible for leave under the FMLA if he or she has been on the payroll for a year, and has actually worked 1250 hours within the 12 months immediately preceding the leave. Employers must maintain group health benefits during FMLA leave. The text of the statute is available here. The Department of Labor's FMLA regulations are available here.

CFRA

The CFRA has the same coverage and eligibility requirements as the FMLA. It differs in two important respects -- (1) the definition of serious health condition excludes pregnancy related conditions, and (2) by operation of the Registered Domestic Partners Rights and Responsibilities Act, the word "spouse" is interpreted to include registered domestic partners. The text of the statute is available here (Government Code section 12945.2). The Department of Fair Employment and Housing's regulations are available here (sections 7297.0 - 7297.11).

PDL

Employers with five or more employees must allow any female employee (no matter how long she has been an employee) to take up to four months of leave when she is disabled by pregnancy. Disabled by pregnancy means unable to perform the essential functions of her job without undue risk to herself, to others, or to her unborn child. Because the CFRA excludes pregnancy related conditions from its coverage, a woman will have up to 12 weeks of baby bonding time under the CFRA after she has exhausted her pregnancy leave. Her FMLA time runs concurrently with her PDL time. A new law that is effective January 1, 2012, requires employers to maintain group health benefits during pregnancy leave. The text of the statute is available here (Government Code section 12945). The DFEH's regulations are available here (sections 7291.2 - 7291.16).

Disability Claims Can Cost Millions

A recent $20 million EEOC settlement with Verizon illustrates the hazards that the disability laws pose for employers. According to the complaint in EEOC v. Verizon Maryland, Inc., Case No. 11-CV-01832-JKB (D. Md. Jul. 5, 2011), Verizon had a "no fault" attendance policy, which assigned "chargeable absences" to any absence except for certified leave under the Family Medical Leave Act, jury or military duty, death in the immediate family, or excused time without pay. An employee who accumulated sufficient chargeable absences was subject to discipline, up to discharge. The policy did not excuse disabled employees who needed leave as a reasonable accommodation for their disabilities. As a result, according to the complaint, disabled employees were treated unfairly based on their disabilities.

In the consent decree that settled the case, Verizon agreed to pay $20 million to the affected employees, and to implement a new attendance policy, under which it would determine on a case-by-case basis whether an absence should be chargeable. If each of the following is satisfied the absence will not be chargeable: (a) the employee has a mental or physical impairment that substantially limits one or more major life activities of such individual as defined by the ADA; (b) the employee's absence was caused by a disability; (c) the employee requested a period of time off from work due to a disability; (d) the employee's absences have not been unreasonably unpredictable, repeated, frequent or chronic; (e) the employee's absences are not expected to be unreasonably unpredictable, repeated, frequent or chronic; (f) Verizon was able to determine, from the request through the interactive reasonable accommodation process, a definite or reasonably certain period of time off that the employee would need because of a disability; and (g) the employee's need for time off from work as a reasonable accommodation does not pose a significant difficulty or expense for Verizon' s business.

The EEOC settlement came on top of a settlement with the California Department of Fair Employment and Housing based on allegations that its attendance policy led to violations of the California Family Rights Act. Under that settlement agreement, Verizon agreed to pay up to $6 million to California employees affected by the policy.

Claims under the disability laws have increased over the past several years. The EEOC reports the number of disability complaints ranged between 15,000 and 18,000 from 1997 to 2007, and then rose to 19,453 in 2008, 21,451 in 2009 and 25,165 in 2010. A study by the UCLA Law|Rand Center for Law & Public Policy reported that disability complaints rose 69 percent between 1997 and 2008.

Because the disability laws are complex and overlap with workers compensation and leave statutes, managers and human resource professionals should be sure they have a firm grasp of the applicable principles before taking adverse action of any kind against those with disabilities. Here are two rules of thumb:

1. Develop a detailed job description for every job classification in your organization, which explains the essential functions of the job and includes information about the physical requirements.
2. If an issue arises about an employees mental or physical ability to perform the essential functions of the job, obtain a written opinion from a qualified medical professional.

For further information about compliance, consult the EEOC website. If you need legal advice about how to comply with the disability laws, send us an email.

New FMLA Regulations

The U.S. Department of Labor has issued its long-awaited amendments to its regulations under the Family and Medical Leave Act. Published on November 17, 2008, the new rules will take effect on January 16, 2009. The Department issued a press release that summarizes the changes. The full text of the publication in the Federal Register is available here. The Department has also published a fact sheet that describes the amendments.

The basics of FMLA remain the same, but employers should take note of the following significant changes:

1. The Department has exercised its authority under the new military family leave provisions of the FMLA to define the qualifying exigencies for which employees with relatives who are in the National Guard or Reserves can use FMLA leave as follows: (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) other activities that the employer and employee agree on.

2. When paid leave is substituted for FMLA leave, all forms of employer paid leave (vacation, sick leave, personal time off, and so on) will be treated the same.

3. The regulations revamp the employer notice obligations. Employers must provide (1) a general notice about FMLA rights, (2) an eligibility notice, (3) a rights and responsibilities notice, and (4) a designation notice. The regulations include new forms to assist employers in complying with their notice obligations. The forms (which include ones tailored to the new military family leave provisions) do not yet appear independently on the Department's website, but are included as appendixes to the regulations.

4. The regulations rework the medical certification process, and provide a new suggested form for obtaining certification. California employers should note that the new Form WH-380 medical certification still asks the medical provider for "medical facts" (including "diagnosis") about the employee's condition. A California Family Rights Act regulation prohibits employers from obtaining such information without patient authorization.

FMLA Leave for Military Families

At the beginning of the year, the Family and Medical Leave Act was amended to to permit an eligible employee who is a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness." This provision was made effective immediately.

As with other types of FMLA leave, an employee is eligible for leave only if he or she as 12 months of service, and 1250 hours of actual work in the last 12 months. Employers may require certification of the member's health condition.

Another part of the amendment requires employers to grant leave because of any "qualifying exigency" arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation. This provision will not take effect until the Secretary of Labor promulgates regulations identifying what constitutes a qualifying exigency.

The Department of Labor has included a discussion of planned regulations to implement the military family provisions in the proposed overhaul to the existing FMLA regulations published in the Federal Register on February 11, 2008. You can read the entire proposal here. Comments were due by April 11, 2008. Final regulations implementing the military family leave provisions can be expected by the end of the year.

Until the regulations are in effect, the Department of Labor "encourages" employers to provide leave for exigencies created by a call up. Here are some of the comments from the deliberations leading to the enactment of the amendment, which may provide guidance about the circumstances that would qualify for leave:

"The wife of a recently deployed military servicemember could use the Family and Medical Leave Act to arrange for childcare. The husband of a servicemember could use the Family Medical Leave Act to attend predeployment briefings and family support sessions. The parents of a deployed servicemember could take Family Medical Leave Act time to see their raised child off or welcome them back home." [Rep. Jason Altmire]

"For every soldier who is deployed overseas, there is a family back home faced with new and challenging hardships. The toll extends beyond emotional stress. From raising a child to managing household finances to day-to-day events, families have to find the time and resources to deal with the absence of a loved one." [Rep. Tom Udall]

"Under this amendment family members can use the leave to take care of issues like making legal and financial arrangements and making child care arrangements or other family obligations
that arise and double when family members are on active duty deployments. ... These deployments and extended tours are not easy on families, and two-parent households can suddenly become a single-parent household and one parent is left alone to deal with paying the bills, going to the bank, picking up the kids from school, watching the kids, providing emotional support to the rest of the family. You have got to deal with these predeployment preparations." [Rep. George Miller]