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© 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
© 2017 Payne & Fears, LLP. All Rights Reserved. 2
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. 3
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. 4
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. 5
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. 6
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. 7
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. 8
Pregnancy: Meet Jane
Jane is five months pregnant.
Which leave laws are potentially at play?
© 2017 Payne & Fears, LLP. All Rights Reserved. 9
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. 10
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. 11
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. 12
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. 13
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. 14
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. 15
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. 16
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. 17
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. 18
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. 19
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. 20
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. 21
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. 22
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. 23
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. 24
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
© 2017 Payne & Fears, LLP. All Rights Reserved. 25
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. 26
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. 27
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. 28
Intermittent/Reduced Schedule Leave
Intermittent Leave
Reduced Schedule Leave
Application:
FMLA / CFRA
PDL
ADA / FEHA
© 2017 Payne & Fears, LLP. All Rights Reserved. 29
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.
© 2017 Payne & Fears, LLP. All Rights Reserved. 30
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. 31
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.
© 2017 Payne & Fears, LLP. All Rights Reserved. 32
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
© 2017 Payne & Fears, LLP. All Rights Reserved. 33
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. 34
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. 35
“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. 36
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. 37
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
© 2017 Payne & Fears, LLP. All Rights Reserved. 38
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. 39
How Did We Do?
Please fill out the feedback form regarding today’s
webinar which will be e-mailed to you following this
presentation.
Thank you.
© 2017 Payne & Fears, LLP. All Rights Reserved. 40© 2017 Payne & Fears, LLP. All Rights Reserved. 40
IRVINE LOS ANGELES SAN FRANCISCOLAS VEGAS SALT LAKE CITY SILICON VALLEYPHOENIX
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