When an employer is confronted with a complicated leave situation or with an employee requesting a leave of absence as an accommodation, the employer should proceed with caution and consult with legal counsel before denying leave or taking any adverse employment actions.
By Christine H. Long, Partner, and Department Chair, Berliner Cohen*
Managing medical leave of absence requests for California employees, under the various state and federal leave laws can be daunting for most employers. California employers must consider both state and federal laws and how those laws interact with one another. Due to huge media coverage on cases where employers violate these laws, most employers are aware they must grant requests for leaves of absence. The mistakes happen when they try to coordinate the leave of absence requests or fail to properly document communications with the employees.
The most common mistakes employers make regarding leave of absence requests:
Improperly designating leave
The leaves of absence terminology can be confusing to both employees and employers. If an employee requests Family Medical Leave Act (FMLA) leave, first figure out if they are eligible. FMLA applies to employers in all states with at least 50 employees. Employees are eligible only if they have worked for the employer for at least 12 months, have worked 1,250 hours in the 12 months before taking leave, and work at a location with 50 employees within a 75-mile radius.
If an employer has a location that only has 10 employees where the employee works, and the next closest facility is over 75 miles away, then FMLA likely will not apply. If the employee is not eligible, that does not automatically mean that a leave will not be granted, but rather they may be entitled to a leave that is not FMLA protected. For example, the employee could qualify for leave under the American With Disabilities Act (ADA), Fair Employment and Housing Act (“FEHA”) or some other law, but the leave would not be job-protected under FMLA.
Furthermore, the types of conditions that qualify for leave change often and differ between California and federal law. Under FMLA, a serious health condition is an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. (FMLA also provides various leave entitlements to military families not discussed in this article.) It is important when a request comes in to determine if the employee is eligible for the specific leave, and if not, figure out if there is another leave that applies.
Typically, leave taken by an employee under the California Family Rights Act (“CFRA”) runs concurrently with FMLA leave except where leave is taken under FMLA for a disability due to pregnancy, childbirth, or related medical conditions. Leave for pregnancy or pregnancy-related disability counts only toward the employee’s FMLA leave entitlement and not toward CFRA leave rights.
As a result, an employee who exhausts FMLA leave for a pregnancy-related disability is still entitled to CFRA leave to bond with a newborn child. If an employee requests leave for her pregnancy, childbirth, or a related medical condition, her request must also be evaluated under the California Pregnancy Disability Leave (“PDL”) laws.
It is important to remember that the PDL runs concurrently with leave taken under FMLA and an employer may count up to 12 weeks of an employee’s PDL against the employee’s FMLA entitlement. But the PDL is a separate and distinct right from leave under CFRA and the two types of leave run consecutively for a maximum leave entitlement of four months of PDL and 12 weeks of CFRA baby bonding leave if an employee is eligible for both types of leave.
The FMLA/CFRA, including the California New Parent Leave Act which is a part of the CFRA, requires employers to provide notices to employees seeking leave. The key is in the documentation.
Under FMLA/CFRA there are four notice documents. Employers sometimes fail to provide the required notices to employees. Employers must give a general notice of FMLA/CFRA rights, an eligibility notice within five days of the leave request, a rights and responsibilities notice at the same time as the eligibility notice, and a designation notice within five business days of determining that leave qualifies as FMLA/CFRA leave.
A failure to provide notice can result in a determination that an employee was simply on a leave of absence, and thus still has 12 weeks of FMLA eligible to be used.
Overlooking the ADA/FEHA
Employers sometimes fail to realize that a serious health condition that requires 12 weeks of FMLA/CFRA leave will likely also constitute a disability under the ADA/FEHA. Employers sometimes think that if an employee exhausts their FMLA/CFRA leave and still cannot return to work, the employee’s job is no longer protected and they may terminate.
Other times, employers deny leave to employees who do not qualify for FMLA/CFRA without taking into consideration that the employee may be entitled to a finite leave of absence as a reasonable accommodation. This is a big mistake.
The analysis does not stop just because an employee does not qualify for FMLA/CFRA leave or because their FMLA/CFRA leave is exhausted. Even after 12 weeks of leave, more leave may be required under the ADA/FEHA as a reasonable accommodation.
The factors as to what must be provided will be evaluated on a case by case basis and include the position the employee holds (such as whether they are a key employee), the size of the operation, length of leaves granted to other employees and the like. There is no one factor that an employer can rely upon, rather each case requires a good-faith interactive process as to what is required and what can be accommodated.
An employer must explore reasonable accommodations for and engage in an interactive dialogue with an employee upon notice of a disability. The interactive process requirement is typically triggered when an employee requests an accommodation, and it may be triggered by a request for FMLA/CFRA leave. No “magic words” are necessary; the obligation simply arises once an employer becomes aware of the need to consider accommodation.
Failing to Consult With Legal Counsel
Each leave law must be analyzed separately to determine an employee’s eligibility. While a pregnancy disability leave or a simple leave of absence request because of a broken arm can often be designated by a review of online materials, complicated requests or a request that does not fall squarely within one set of leave laws require careful analysis.
About the Author
Christine H. Long is Partner, and Department Chair at Berliner Cohen, LLP. She maintains a diverse litigation practice in employment, hospitality, business litigation, and real estate. Ms. Long is the Chair of the Employment Law Practice Group and Hospitality Practice Group.
Ms. Long’s employment and hospitality litigation practice includes handling wage and hour claims, claims of employment discrimination, ADA compliance, wrongful termination, and breach of employment contract cases. She has experience with class action litigation, FLSA and EEOC investigations, and ADA Compliance.
In addition to her litigation practice, Ms. Long counsels clients on all aspects of employment, including complaints made to and investigations initiated by the Department of Fair Employment and Housing, Labor Commissioner, and the EEOC on matters relating to employment including compensation issues, mandatory leaves of absence, reasonable accommodations, and reductions-in-force for individuals, companies and local government. Ms. Long regularly speaks on employment and hospitality issues of interest.
In the real estate and business litigation areas, Ms. Long has represented parties in a variety of matters, including commercial and residential sales disputes, partnership disagreements and dissolutions, partition actions, commercial landlord/tenant suits, easement and boundary claims, and CC&R.
*Long will present the first session of the California Legal & Legislative Conference – Wednesday, December 11, 2019
8:30 – 9:30 am session: Top Laws Affecting Employers in 2020
This interactive session will cover both the laws and best practices needed to navigate the evolving employment landscape, equipping you with strategies to deal with the ever-changing legal environment. Employers are facing a dizzying array of laws, legal interpretations, and applications that continue to challenge even the savviest of corporate counsel and HR professionals to stay abreast of the latest issues that will impact their workplace.