Leaves of Absence, Parts One and Two
September 28, 2010 - October 28, 2010
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On September 28 and October 28, 2010, Miller Law Group presented a two-part webinar that explored the latest trends under federal and California leaves of absence laws, including challenges under family and medical leave statutes, the Americans with Disabilities Act, California’s pregnancy disability leave law, and more. The following are answers to frequently asked questions by webinar attendees.
Q. CAN AN EMPLOYEE WHO IS ELIGIBLE UNDER THE FAMILY AND MEDICAL LEAVE ACT (FMLA) TAKE TIME OFF FOR MEDICAL TREATMENT IN INCREMENTS OF ONE DAY (OR 8 HOURS) PER WEEK THROUGHOUT THE ENTIRE YEAR, SO LONG AS THE TOTAL LEAVE DOES NOT EXCEED 12 WEEKS OR 480 HOURS?
A. Generally, yes, assuming the treatment is in connection with a serious health condition. Keep in mind, however, that the calendar year may or may not be the measure for determining the amount of leave to which an employee is entitled over a 12-month period. In particular, employers can choose how to define the “12-month period,” either as a calendar year; any fixed 12-month leave year, such as a fiscal year; the 12-month period measured forward from the date an employee's first FMLA leave begins; or a rolling 12-month period measured backward from the date an employee's first FMLA leave begins. Employers may choose any one of these methods, so long as the chosen method is applied consistently and uniformly.
Q. WHEN AN EMPLOYEE IS TAKING INTERMITTENT FMLA LEAVE FOR A CONDITION, SUCH AS MIGRAINE HEADACHES, THAT IS PERIODIC AND DOES NOT HAVE A SPECIFIC START OR END DATE, HOW OFTEN CAN THE EMPLOYER ASK FOR MEDICAL RECERTIFICATION?
A. Under the FMLA, employers may ask for medical recertification no more often than every 30 days or the duration of the prior certification -- whichever is longer. For example, if an employee provides a certification requiring 50 days of leave, recertification cannot be requested again until the 50 days have passed. There are, of course, exceptions to this rule. One exception is when circumstances described in the previous certification have significantly changed. If, for example, an employee with a condition such as migraines had a certification permitting him to take one to two days off when suffering from a migraine, yet the last few instances lasted three to four days, the increased duration of the absence may constitute a significant change such that recertification could be requested in under 30 days.
It is important to note that the recertification rules are different under the California Family Rights Act (CFRA). For time off for the employee’s own serious health condition, a recertification may be requested under the CFRA at the expiration of the time period in the original certification. Also, if the employer has reason to doubt the validity of a certification for the employee’s own serious health condition, the employer may, at its own expense, require a second opinion.
Q. CAN AN EMPLOYEE WHO HAS A WORK-RELATED INJURY TAKE AN INTERMITTENT LEAVE UNDER THE FMLA?
A. Yes, assuming the employee is eligible for FMLA leave, the injury qualifies as a serious health condition under the FMLA, and the employee’s doctor has certified the need for intermittent leave.
Q. WE HAD AN EMPLOYEE REQUEST FMLA TIME OFF TO BE WITH HIS MOTHER DURING HER HOSPITAL STAY FOR A MEDICAL PROCEDURE. IS THIS COVERED BY THE FMLA?
A. Probably. The FMLA permits employees to take time off to care for a relative with a serious health condition, and the term "care for" encompasses both physical and psychological care. It includes situations where, for example, due to a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor. The term also includes providing psychological comfort and reassurance which would be beneficial to a family member who is receiving inpatient or home care. Still, whether or not the FMLA covers an employee’s absence to be with a family member undergoing a medical procedure remains a fact-specific inquiry for the courts. For example, a federal court in New York held that a son’s presence at the hospital where his unconscious mother underwent emergency brain surgery was not FMLA-protected. While a federal court in Maine ruled that a son who kept vigil by his father’s bed and interacted with his father’s physicians was covered under the FMLA. Given the differing opinions by courts and the fact-specific nature of these cases, employers are wise to be mindful of the “care for” requirement and give careful consideration before denying an employee such leave.
Q. ARE EMPLOYERS IN CALIFORNIA REQUIRED TO PROVIDE EMPLOYEES WITH SEPARATE FMLA AND CFRA NOTICES IN RESPONSE TO A REQUEST FOR LEAVE, OR IS A COMBINED NOTICE SUFFICIENT?
A. Typically, the employer’s response to the leave request is included in one notice that meets both CFRA and FMLA notice requirements. Keep in mind, however, that not all leaves qualify under both statutes. For example, time off to care for a domestic partner with a serious health condition is covered by the CFRA but not the FMLA. Conversely, time off for pregnancy disability leave runs concurrently with leave under the FMLA but not with leave under the CFRA.
Q. SUPPOSE AN EMPLOYEE HAS HAD COMPLICATIONS DURING HER PREGNANCY, CAUSING HER TO USE UP HER FOUR MONTHS OF CALIFORNIA PREGNANCY DISABILITY LEAVE (PDL). SHE HAS NOT DELIVERED HER BABY YET BUT SHE REMAINS DISABLED. IS SHE STILL JOB-PROTECTED EVEN THOUGH SHE HAS EXHAUSTED HER PDL?
A. If an employee remains disabled at the end of a PDL, the employer must consider whether an additional amount of leave would be a reasonable accommodation under the disability discrimination laws. If so, the employee would retain the right to return to her job at the end of the extended leave. Furthermore, if the employee is eligible for FMLA/CFRA leave, she would have already exhausted her 12-week FMLA entitlement because that runs concurrently with the PDL, but she would still have 12 weeks of remaining CFRA time (assuming she had not used it for another CFRA purpose in the applicable 12-month period). The employer may, but is not required to, allow the employee to use this CFRA time for pregnancy disability prior to the birth of her child.
Q. IF A CALIFORNIA EMPLOYEE ASKS FOR VACATION TIME AND VOLUNTEERS THAT IT IS FOR A FMLA/CFRA-COVERED PURPOSE, BUT SAYS HE DOES NOT WANT IT TO BE COUNTED AGAINST HIS FMLA/CFRA LEAVE, CAN THE EMPLOYER STILL CHARGE THE TIME OFF AGAINST THE EMPLOYEE’S FMLA/CFRA ENTITLEMENT?
A. Yes. Since the employee requested vacation for a FMLA/CFRA-covered purpose, the employer may designate the leave as FMLA/CFRA leave, with proper notice to the employee. On the other hand, had the employee simply requested vacation (or PTO) without indicating what the vacation was going to be used for, the CFRA bars the employer from inquiring further to determine if the time off is for a CFRA purpose.
Q. HOW SHOULD AN EMPLOYER CALCULATE 12 WEEKS OF FMLA/CFRA LEAVE FOR A PART-TIMER?
A. Leave entitlement for part-time employees is determined on a proportional basis and an employee’s actual workweek is the basis of the employee’s leave entitlement. For example, if an employee who typically works 20 hours/week is now working 10 hours/week under a reduced schedule due to a serious health condition, he would use up half a week of FMLA leave each week, and thus could continue in this manner for a total of 24 weeks until his FMLA leave is exhausted. In circumstances where the employee’s normal hours vary from week to week, the employer must take the weekly average of the hours the employee worked in the 12 months prior to the leave to determine the employee’s actual workweek for FMLA purposes.
Q. ARE EMPLOYERS REQUIRED TO COUNT HOLIDAY AND VACATION HOURS FOR PURPOSES OF DETERMINING WHETHER AN EMPLOYEE HAS WORKED 1,250 HOURS IN THE 12 MONTHS PRIOR TO THE LEAVE, AS REQUIRED FOR FMLA/CFRA ELIGIBILITY?
A. No, the employer is only required to count actual hours worked.
Q. IS MORBID OBESITY A DISABILITY?
A. Under current law, an obese person with no physiological or psychological cause for the weight would not be covered by the ADA, although the person could have other medical conditions caused by obesity that would qualify him or her for ADA protection, such as diabetes. Additionally, an individual who is morbidly obese could qualify as disabled if the employer “regards” the employee as being disabled.
Q. WE HAVE 30 EMPLOYEES, AND AN EMPLOYEE HAS REQUESTED INTERMITTENT LEAVE FOR AN ONGOING MEDICAL PROBLEM. DO WE HAVE TO GRANT THE TIME OFF UNDER THE FMLA OR CFRA?
A. An employer that has fewer than 50 employees is not covered by the FMLA or CFRA. However, assuming the condition is a disability, the employer would be obligated to evaluate whether to grant the intermittent leave as a reasonable accommodation under the ADA and California’s Fair Employment and Housing Act.
Q. IS THERE A RESOURCE EMPLOYERS CAN CONSULT TO HELP DETERMINE POSSIBLE REASONABLE ACCOMMODATIONS FOR DISABLED EMPLOYEES?
A. The Job Accommodation Network, http://askjan.org, maintains a database of information on reasonable accommodations, organized by the type of disability. Employers should also be certain to work closely with the employee (in conjunction with the employee’s health care provider) to figure out possible accommodations.
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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