presented by the department of fair employment & housing, an agency of the state of california...

Presented by

The Department of Fair Employment & Housing,

an Agency of the State of California

LEAVE LAWS & DISABILITY DISCRIMINATION

Leave Laws & Disability Laws that May Apply Leave Laws

Kin Care Sick Leave Paid Family Leave Workers’ Comp FMLA/CFRA CA Military Spouse leave USERRA (Uniformed Services Employment & Reemployment Rights Act) Other Labor Code leaves (jury duty, school activities...)

Disability Leave Laws ADA (Federal) FEHA (California) Pregnancy Discrimination Act (Federal) Pregnancy Disability Act (California – under FEHA)

It’s Complicated

Many leave laws overlap CFRA incorporates FMLA

regulations But does it incorporate recent

changes to these regs? Employers must adhere to state and Federal laws

Employers must comply with the most employee friendly law

Hypo 1

Wally, an employee of 5 years, was injured at work and the workers comp doctors determined that he is “totally disabled”

One of the essential functions of his job is moving boxes of documents which he can no longer do

Hypo 1, continued

Now he wants to return to work. Does his employer have to return him to work after he was out for 10 weeks recovering from his injury?

Hypo 2 In the same year as Wally was out on

leave, his 6 year old son, Sam was diagnosed with ADHD

Sam missed several days of school due to behavior problems stemming from ADHD

Sam must see his pediatrician at least 3 more times this year to monitor the ADHD and medications

Hypo 2, continued

Can Wally take leave to care for his son if Sam has to miss more school?

What if the 10 weeks leave that Wally took were not for workers comp but were for his own serious health condition?

Hypo 3

Suzie, an employee of 5 years, is pregnant and has severe morning sickness all day. She also has many doctors appointments for prenatal care. Can she take time off for the above?

Hypo 4

Suzie ended up taking 4 months off during her pregnancy

Now she wants another 3 months to stay home and bond with her baby Can she do so? Will her health benefits be affected by

the leave she took during pregnancy?

Hypo 5

What if Suzie had only been an employee for 8 months when her severe morning sickness started? Pregnancy leave? Bonding leave?

California Leave Laws:Kin Care (Labor Code § 233)

If employer offers sick leave, then must allow use for:- Attending to the illness of a child, parent, spouse or domestic partner of the

employee● “Child” includes foster, adopted, step,

legal ward, child of domestic partner or child of person in loco

parentis;● “Parent” includes foster, adoptive, step or legal guardian

Kin Care Amount of Time Allowed

Employees can use:

- One-half of sick leave accrual rate

- In a given calendar year

▪ Conditions and Restrictions:

- Same as the Employer’s sick leave

plan

Workers’ Compensation (Labor Code sections 3200 -6145)

Injury or illness occurs while employee is performing services growing out of and incidental to employment and is acting within the scope of employment

Injury is proximately caused by employment

Workers’ Compensation Actions and Rules: Give employee a claim form Notify the carrier Non-discrimination for filing a claim Leaves for work-related disability have no threshold

service requirements, no size limits, and may go on almost indefinitely

Reinstatement required unless can prove employee unable to return, or business necessity

Employers must also comply with reasonable accommodation/interactive process requirements of the FEHA

FMLA/CFRA Leaves

The Federal Family and Medical Leave Act (FMLA) (29 USC §§ 2601 et seq.; 29 CFR 825 et seq.)

http://www.dol.gov/dol/topic/benefits-leave/fmla.htm

http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/toc.htm

Moore-Brown-Roberti Family Rights Act Also known as The California Family Rights Act (CFRA) (Gov Code §§12945.1 et seq.; Cal. Code Regs., tit. 2, § 7297)http://www.fehc.ca.gov/act/pdf/FEHA_Outline.pdfhttp://www.fehc.ca.gov/act/pdf/code_regulations.pdf

FMLA/CFRA Leaves CFRA reg 7297.1 says the 1995 FMLA regs are

incorporated into CFRA, BUT the FMLA regs were revised in 2009

4 Big Differences between FMLA & CFRA Pregnancy is serious health condition under FMLA but is not a

SHC under CFRA (it’s under PDL instead) Domestic partners are not covered under FMLA FMLA has “Qualifying Exigency” leave for EE’s or family

member’s active military duty FMLA has leave for care of injured or ill service member see

http://www.fehc.ca.gov/pdf/FMLA-CFRARegsTable-2.pdf

Covered Employers Employers with 50 or more employees

within 75 miles of the worksite of the employee requesting leave.

Eligible Employees

The employee must have worked for at least 12 months (52 weeks);

and at least 1,250 hours (actual time worked)

in the 12-month period prior to the date the leave begins.

(Gov. Code, § 12945.2, subd. (a);Cal. Code Regs., tit. 2, § 7297.0, subd. (e)(1).)

What benefit is provided?

A leave of up to a total of 12 workweeks in any 12-month period for family and

medical leave, with a guarantee of employment in the same or a comparable

position upon the termination of the leave.

(Gov. Code §12945.2, subd. (a).)

Types of Leave

Leave for any of the following:Family Leave

• The birth of a child of the employee or the placement of a child with the employee through adoption or foster care; and

Medical Leave• The “serious health condition” of the

employee, or the employee’s child, parent, spouse, or registered domestic partner (CA)

(Gov. Code §12945.2, subd. (c)(3).)

Computation of the 12 workweek benefit period

“12 workweeks” means the equivalent of 12 of the employee’s normally scheduled

workweeks.

Intermittent leave

Intermittent leave or a reduced work schedule must be permitted by the employer if

appropriate. Only the amount of leave actually taken is counted toward the 12 week

entitlement.

Employee needs to be absent from work 2 hours per week for physical therapy. Only those two hours per week can be charged against the employee’s leave

entitlement.

Example

Definition of Serious Health Condition An illness, injury, impairment, or physical or

mental condition that requires either inpatient care* or continuing treatment or supervision by a health care provider on an

outpatient basis.

*Inpatient care must involve an overnight stay in a hospital, hospice or residential health

care facility

• A period of incapacity lasting more than three (3) consecutive calendar days, and any

subsequent treatment or incapacity due to the same condition;

• Incapacity or treatment for incapacity due to a chronic serious health condition;

• Permanent or long term incapacity due to an untreatable condition;

and

Continuing Treatment

• absences for a condition that requires multiple treatments plus any subsequent

period of recovery.

(Gov. Code, § 12945.2, subd. (a)(8); 29 CFR §825.115 )

Chronic Serious Health Condition

A chronic serious health condition is one which:

- Continues over an extended

period of time; and

- May cause periodic rather than a

continuing period of incapacity

(e.g., asthma, diabetes, epilepsy,

etc. . . )

Long Term Incapacity

Defined as a period of incapacity which is permanent or long-term due to a condition which treatment may not be effective The employee or family member is under the

continuing supervision of, but not necessarily being actively treated by, a health care provider due to a serious long-term or chronic condition or disability which cannot be cured;

Long Term Incapacity

Continuing treatment by a health care provider for a chronic or longer term condition that is incurable or so serious that if not treated would likely result in a period of incapacity of more than three calendar days.

For an employee to take CFRA leave for his or her own serious health condition he/she must be unable to perform the essential functions* of his or her position.

For an employee to take CFRA leave for the serious health condition of her child, spouse or parent, his or her participation must be needed in providing care for that relative.

* Defined the same way as when discussing a need for reasonable accommodation.

Employee Rights

Leave for up to twelve (12) workweeks in any twelve (12) month period

Maintenance of health care benefits Retention of employee status Reinstatement to same or comparable

position at conclusion of leave

The employee may elect or an employer may require that the employee utilize accrued

vacation, sick leave (for the employee’s own serious health condition), or other accrued

paid or unpaid time concurrently with a family and medical leave.

(Gov. Code, § 12945.2, subd. (e).)

Employee Rights

The employer shall maintain and pay for coverage under a “group health plan” at the

level and under the conditions coverage would have been provided absent the leave.

(Gov. Code, § 12945.2, subd. (f).)

Employee Rights

The employer shall recover the premium paid only if both of the following occur:

The employee fails to return from leave; and The employee’s failure to return is for a

reason other than the continuation, recurrence, or onset of a serious health

condition that entitles the employee to leave & other circumstances beyond the control of

the employee.(Gov. Code, § 12945.2, subds. (f)(A),(B).)

Employee Rights

The employee retains his/her status as an employee during CFRA leave and that leave

does not constitute a break in serve, including for purposes of: Longevity

Seniority under a collective bargaining agreement

Employee benefit plans

(Gov. Code, § 12945.2, subd. (g).)

Employee Rights

The employee returns from CFRA leave with no less seniority than when the leave began for

purposes of: Layoff Recall

Promotion Job assignment

Seniority-related benefits, e.g. vacation

(Gov. Code, § 12945.2, subd. (g).)

Employee Rights

Employer must provide a guarantee of reinstatement to the same or comparable

position (unless the employee is a “key employee” and reinstatement would result in substantial and grievous economic injury) in

writing if the employee so requests.

(Gov. Code, § 12945.2, subd. (a);Cal. Code Regs., tit. 2, § 7297.2,

subds. (a), (c).)

Employee Rights- Reinstatement

Reinstatement may be denied if the employee would not have been employed at the time reinstatement is requested (e.g., position

eliminated perhaps due to reduction in work force; the employee would have been selected

for layoff; the employee takes leave fraudulently).

(Cal. Code Regs., tit. 2, § 7297.2,subd. (c)(1).)

Exception

• Provide employer at least verbal notice sufficient to make the employer aware of the

need for leave, including, if known, the timing and duration of the leave without

disclosing employee’s specific medical condition, diagnosis, or treatment

• Employee need not expressly assert his/her rights under CFRA or FMLA, or even

mention CFRA or FMLA, to meet the notice requirement.

Employee Responsibility

Provide certification, as requested by his/her employer

Employers have a right to demand a health-care provider’s certification that an employee or an employee’s child, parent, or spouse has a

“serious health condition”

(Gov. Code, § 12945.2, subds. (j)(1) and (k)(1);Cal. Code Regs., tit. 2, § 7297.4 , subd. (b).)

Employee Responsibility

For employee’s own serious health condition:(1) the date the serious health condition

commenced (if known);(2) the probable duration of the condition; and(3) a statement that the employee is unable to

work or to perform one or more of the essential functions of the job, due to the

serious health condition. (Gov. Code, § 12945.2, subd. (k)(1);

Cal. Code Regs., tit. 2, § 7297.0, subd. (a)(2).)

Certification for Employee’s Own Serious Health Condition

Next We Look To Discrimination Disability Laws

Is there a disability protected by the Federal American’s with Disabilities Act (ADA) or the Fair Employment and Housing Act (FEHA) which must be accommodated?

Applicable Disability Discrimination Laws

Federal American’s with Disabilities Act (ADA) (42 USC § 12101 et seq.)

California Fair Employment and Housing Act (FEHA) (Gov. Code § 12900 et seq.)

- Both prohibit discrimination against qualified individuals with a disability

The Fair Employment and Housing Act (Gov. Code § 12900 et seq.)

Prohibits discrimination in employment on the bases of:

Physical disability Mental disability

Medical condition

§ 12926.1, subd. (a)

California provides protections independent from those in the federal

Americans with Disabilities Act

California has always provided broader protections than the federal

statutory scheme.

§ 12926.1, subd. (b)

California prohibits discrimination:

Against job applicants & employees On the basis of actual or perceived

disability

§ 12926.1, subd. (c)

Under California law, the following are disabilities:

HIV/AIDS Hepatitis

Epilepsy or seizure disorder

Diabetes

Clinical depression Bipolar disorder Multiple sclerosis

Heart disease

§ 12926.1, subd. (c) California law: Disability limits a

major life activity. Federal law: Disability substantially

limits a major life activity.

“Limits” = makes the achievement of a life activity difficult.

§ 12926.1, subd. (c)

“Working" is a major life activity, regardless of whether the actual or

perceived working limitation implicates a particular employment or a class or

broad range of employments.

“Medical Condition” defined§ 12926, subd. (h)

A health impairment related to a diagnosis of cancer (or a record or history of cancer)

~ or ~ A genetic characteristic known to statistically increase the risk of development of a disease

or disorder, but which is not presently associated with any symptoms of the disease

or disorder

§ 12926.1, subd. (e)§ 12940, subds. (m), (n)

Employers have an affirmative obligation to provide a reasonable accommodation to a disabled job

applicant or employee Employers must engage in a timely,

effective interactive process to determine if a reasonable accommodation can be

provided. A failure to do so is a separate violation of the FEHA!

Procurement of employee medical records

Applicant/employee’s right to privacy limits employer’s procurement of medical records

and information: Must be directly related to the disability and need for accommodation.

Exception to duty to provide reasonable accommodation

Employer can demonstrate that an accommodation would impose an “undue

hardship” upon its business operation.

(Gov. Code, § 12940, subd. (m);Cal. Code Regs., tit. 2, § 7293.9.)

An action requiring significant difficulty or expense when considered in light of the

following: (1) Nature and cost;

(2) As to the specific facility: Overall financial resources, number of persons, and effect on expenses and resources, or

the accommodation's impact on the operations of the facility;

“Undue hardship”

(3) Overall resources of the employer, the overall size of the business with respect to the number of employees, and the number, type

and location of facilities;

(4) Type of operation -- composition, structure and functions of the workforce;

and

(5)Geographic separateness, administrative or fiscal relationship of the facility or facilities

involved.

(Cal. Gov. Code § 12926, subd. (s);Cal. Code Regs., tit. 2, § 7293.9(b).)

Exception to duty to provide reasonable accommodation

No reasonable accommodation exists to enable an employee to perform his or her

position The employee cannot perform the essential

functions of his or her position even with an accommodation

Note: An employer is not required to create a vacant position in order to accommodate a

disabled applicant or employee.

Employer’s Burden

The employer bears the burden of showing that an exception to its obligation to provide a

reasonable accommodation applies.

(Cal. Code Regs., tit. 2, §§ 7293.8, subd. (b); 7293.9.)

What is a “reasonable accommodation”?

Any effective measure that would enable an applicant or employee with a disability to

perform the essential functions of his or her position.

(Gov. Code § 12926, subd. (n);Cal. Code Regs., tit. 2, § 7293.9, subd. (a).)

Types of reasonable accommodationExamples:• Job restructuring• Job sharing• Transfer to a vacant position• Re-allocation of duties• Adjustment of work hours• Making facilities accessible and usable• Providing tools, equipment, supplies, etc.• Modifying examinations or policies• Leave of absence

Note: California employers must reasonably accommodate any employee who wishes voluntarily to enter and participate in an alcohol or drug rehabilitation program.

(Cal. Lab. Code §§ 1025-1028.)

Leave as Accommodation If reasonable If not an undue hardship

More likely to be reasonable, not a hardship if finite

Employer must hold job open, but if this is undue hardship,

Must look for vacant, equivalent position that Employee qualifies for

(But no undue hardship defense for CFRA)

Leave as Accommodation Employer does not have to grant leave

if other accommodations are available Employer should not put employee on

leave if other accommodations are available and employee does not want leave

See http://www.eeoc.gov/policy/docs/accommodation.html#leave

Essential Functions

The “fundamental job duties” of the position in question, not the “marginal functions.”

(Gov. Code § 12926, subd. (f).)

A function may be essential if (illustrative, not exclusive reasons):

a) The position exists to perform that function;

b) Limited number of employees perform it;

c) The function is highly specialized, requires special expertise/ability.

(Gov. Code § 12926, subd. (f)(1);

Cal. Code Regs., tit. 2, § 7293.8, subd. (g)(1).)

The Interactive ProcessThe EEOC Interpretive Guidelines

(1)Analyze the particular job involved and determine its purpose and essential

functions;

(2) Consult with the individual with a disability to ascertain the precise job-related

limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation;

(3) In consultation with the individual to be accommodated, identify potential

accommodations and assess the effectiveness each would have in enabling the individual to

perform the essential functions of the position;

and

(4) Consider the preference of the individual to be accommodated and select and

implement the accommodation that is most appropriate for both the employee and the

employer.

(29 C.F.R. § 1630, App. §1630.9 p. 364.)

Pregnancy Disability Leave

■ Federal Pregnancy Discrimination Act(Title VII of Civil Rights Act of 1964;

29 C.F.R. §1604)

■ California Pregnancy Disability Leave(Gov. Code § 12945;

Cal. Code Regs., tit. 2, § 7291)

Federal Pregnancy Discrimination Act The Pregnancy Discrimination Act is an amendment to

Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and to labor organizations, as well as to the federal government. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

California Pregnancy Disability Leave (Gov. Code § 12945; Cal. Code Regs., tit. 2, § 7291)

■ Employees who are unable to work due to pregnancy-related conditions are entitled to leave of absence for each pregnancy

- Leave is for “reasonable period of time not to exceed four months”

* Does not have to be taken all at once

* Can occur even shortly after

employee becomes pregnant

California Pregnancy Disability Leave (Gov. Code § 12945;Cal. Code Regs., tit. 2, § 7291)

All women employees disabled by pregnancy or related medical conditions are eligible, regardless of length of service or length of work schedule

Overlapping of FMLA/CFRA/CPDL Pregnancy disability runs concurrently with

FMLA, including health benefits continuation (12 weeks max.)

CFRA and CPDL are separate: CFRA cannot be used for pregnancy disability

CFRA newborn leave can start after CPDL is exhausted (12 weeks CFRA + 4 months of CPDL = maximum leave entitlement)

California Pregnancy Disability Leave

So employee out on leave on pregnancy related disability will be entitled to reasonable accommodation under FEHA for her pregnancy

Another possible leave of absence of up to 4 months

Paid Family Leave Act

Workers may receive up to 6 weeks of paid leave per year to care for a new child (birth, adoption, or foster care) or seriously ill family member (parent, child spouse, or domestic partner).

Paid Family Leave Act

Workers who already pay into the existing State Disability Insurance (SDI) system are eligible for paid family leave.

Paid Family Leave Act

There is a one-week waiting period before workers can apply for paid family leave (like SDI program).

Employers can require a worker to use a maximum of two weeks of vacation time before receiving paid family leave. One week will be used to cover the waiting period.

Paid Family Leave Act

If not covered by FMLA/CFRA employer may not be required to hold a job for a worker who goes on paid family leave. (PFL law not a leave law)

Collective Bargaining agreements may offer different protections for these workers.

New mothers eligible for pregnancy – related SDI are also eligible for paid family leave.

Paid Family Leave Act

See http://www.edd.ca.gov/Disability/FAQs_for_Paid_Family_Leave.htm

Answers to hypos 1 Yes. Wally can do EF w/ RA 2 Yes, if ADHD is SHC; if 10 weeks were

CFRA/FMLA, he gets 2 more weeks 3 Yes. Cal. Code Regs., tit. 2, § 7291.2(g) 4 Yes. Pregnancy=PDL, not CFRA, but it is

FMLA; gets 4 mos PDL, 12 weeks CFRA; must get 12 weeks health benefits but ER can give more Gov. Code § 12945.2(f)

5 Yes. No jx requirement of months worked for PDL; 8+4=12 mos so meets 12 mo requirement for CFRA, yes to bonding

Summary of other Resources

http://www.dfeh.ca.gov

http://www.fehc.ca.gov/

http://www.dir.ca.gov/

Summary of other Resources, continued http://www.dol.gov/dol/topic/benefits-lea

ve/fmla.htm http://www.eeoc.gov/laws/types/disabilit

y.cfm Chin et al., Cal. Practice Guide

Employment Litigation (The Rutter Group 2009) §12, esp. Appendix A “Comparison Chart Intersection of Statutes Affecting Family and Medical Leave” pp. 12-185 - 12-192.

Questions and Answers