Family Rights in the Workplace
January 25, 2011
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On January 25, 2011 Miller Law Group presented a webinar that explored the latest trends related to Family Rights in the Workplace, including leave rights and legal trends. The following are answers to frequently asked questions by webinar attendees.
Q. WHAT STATUTES PROHIBIT FAMILY RESPONSIBILITIES DISCRIMINATION?
A. Family responsibilities discrimination (FRD) is a form of gender discrimination against women or men because of their mothering or caregiving roles for family members. FRD is not specifically prohibited by any federal law, but claims may be brought under Title VII, the Pregnancy Discrimination Act, the Family and Medical Leave Act, the Equal Pay Act, the Americans with Disabilities Act, and state equivalents. In addition, some states now have laws that specifically prohibit discrimination on the basis of family responsibilities, and claims may also be brought under various state common law theories, including wrongful termination and breach of contract.
Q. IS THERE A TIME LIMIT FOR LACTATION ACCOMMODATION?
A. The recent federal law requiring employers to provide lactation accommodation to breastfeeding employees only requires such accommodation until the child is one year old. California has a similar lactation accommodation statute (California Labor Code section 1030), although the California law does not limit the length of time that a breastfeeding mother is entitled to accommodation.
Q. IS A PARENT ENTITLED TO FAMILY AND MEDICAL LEAVE FOR FAMILY THERAPY SESSIONS FOR A CHILD IN A REHABILITATION FACILITY?
A. It depends. The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) permit employees to take time off to care for a child or other close family member with a serious health condition. The term "care for" encompasses both physical and psychological care and includes providing psychological comfort and reassurance that would be beneficial to a family member who is receiving inpatient or home care. Whether or not attending a child’s therapy session meets this “care for” requirement would need to be evaluated based on the specific facts. However, it is likely that courts would consider attending therapy sessions for a child to be caring for the child, and, therefore, employers should therefore give careful consideration before denying a FMLA/CFRA leave requested for this purpose.
Q. WHAT OBLIGATION DO EMPLOYERS HAVE TO PAY EMPLOYEES DURING FMLA AND CFRA LEAVES?
A. Leaves under the FMLA and/or CFRA are unpaid unless an employer has a policy of providing paid leave or the employee substitutes accrued paid leave during an otherwise unpaid portion of family and medical leave. With respect to substitution of accrued paid leave, the FMLA permits employers to require employees to substitute accrued paid leave according to the terms and conditions of the employer’s policy, or an employee can elect to make the substitution. The CFRA permits employers to require, or employees to elect, to substitute vacation or PTO for any type of CFRA-covered leave, although employers may require the substitution of paid sick leave only when the CFRA leave is for the employee’s own serious health condition. Note, too, that California employers cannot require the use of vacation or PTO during a pregnancy disability leave.
Q. MUST HEALTH BENEFITS BE MAINTAINED DURING AN EMPLOYEE’S FMLA OR CFRA LEAVE?
A. Group health benefits must be maintained during any period of FMLA or CFRA leave under the same conditions as if the employee continued to work. For example, if employees are required to contribute a certain amount per pay period when not on leave, the employee may still be required to make that contribution while on leave. In general, health benefits must be maintained for up to 12 weeks, or up to 26 weeks when military family leave is taken under the FMLA to care for a covered service member.
Q. ARE BOTH PARENTS ALLOWED TO TAKE INTERMITTENT CFRA LEAVE TO BOND WITH A NEW BABY?
A. Both parents are permitted under the CFRA to take intermittent leave within the first year of their baby’s life to care for or bond with the baby. The minimum duration of an intermittent CFRA leave for bonding is two weeks; however, an employer is required to grant a request for a CFRA leave of less than two weeks’ duration on any two occasions. Note that under the FMLA, an employee can take intermittent bonding leave only if the employer agrees.
Q. CAN AN EMPLOYEE TAKE FMLA/CFRA LEAVE TO CARE FOR A SPOUSE WHO IS PREGNANT OR JUST GAVE BIRTH?
A. Yes. The FMLA and CFRA permit an employee to take leave to care for a pregnant spouse who is incapacitated or for prenatal care, or if needed to care for the spouse following the birth of a child if the spouse has a serious health condition.
Q. ARE DOMESTIC PARTNERS COVERED UNDER THE FMLA AND CFRA? WHAT ABOUT IN THE CONTEXT OF “IN LOCO PARENTIS”?
A. Domestic partners are not covered under the FMLA, but are covered under CFRA. As such, an employee cannot take FMLA leave to care for a domestic partner but would be entitled to take CFRA leave to do so. This inconsistency between the FMLA and CFRA means that an employee who takes CFRA leave to care for a domestic partner will not have exhausted available FMLA leave (since FMLA does not cover such leave). Therefore, this employee could potentially take 12 weeks of CFRA leave to care for a domestic partner and then an additional 12 weeks of FMLA leave for any FMLA-covered reason. Note, however, that employees may have FMLA leave rights to care for a domestic partner’s child with a serious health condition if the employee stands “in loco parentis” to that child. Specifically, the FMLA permits employees to take leave to care for a son or daughter with a serious health condition. In addition to defining "son or daughter" in biological and legal terms (foster, step- and legal wards are all recognized as meeting the definition), the FMLA also recognizes the right of a person standing "in loco parentis" to take this leave. An employee stands in "in loco parentis" to a child when he or she has day-to-day responsibilities to care for and support the child, even if there is no biological or legal relationship. An employee who provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) could be considered to stand “in loco parentis” to the child, and would be entitled to FMLA leave to care for that child.
For over a decade, Miller Law Group has devoted its practice exclusively to representing business in all aspects of California employment law and related litigation. If you have questions about your workplace obligations, please contact Michele Ballard Miller (mbm@millerlawgroup.com) or Carolyn Rashby (cr@millerlawgroup.com), or call 415-464-4300.
This webinar and Question and Answer Summary are presented by Miller Law Group to review recent developments in employment law. This material is designed to provide informative and current information as of the date of the webinar and should not be considered legal advice.
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