FMLA CFRA and PDL Interactions and Updates Disability

FMLA, CFRA, and PDL: Interactions and Updates Disability Management Employer Coalition (DMEC) October 2015 Chapter Meeting | October 14, 2015 Presented By: Leighton Davis Henderson

Leave Laws • The Family and Medical Leave Act (FMLA) • The California Family Rights Act (CFRA) • Pregnancy Disability Leave (PDL) 2

Employers Required to Comply • FMLA/CFRA – All public employers – Private employers that employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year • PDL – All employers with five or more employees (full or part time) 3

Eligible Employees • FMLA/CFRA – Employed at Least 12 Months – Worked at Least 1, 250 Hours During the 12 Months Preceding the Leave – 50 Employees Within 75 -Mile Radius • PDL – No eligibility requirements 4

For What Reasons is Leave Permitted? • FMLA/CFRA – “Bonding” Time with Newborn, Also Adoption and Foster Care – Care for Child, Parent or Spouse with Serious Health Conditions, Including Psychological Comfort – Serious Health Condition That Makes Employee Unable to Perform Functions of His/Her Position 5

For What Reasons is Leave Permitted? • FMLA Only – Serious Health Conditions Related to Pregnancy – Military-Related Leaves § Qualifying Exigency Leave § Military Caregiver Leave • CFRA Only – Leave to Care for Registered Domestic Partners 6

For What Reasons is Leave Permitted? • PDL – Pregnancy-related disability, i. e. , because of pregnancy, woman cannot perform one or more of the essential functions of her job or cannot perform any of these functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons 7

How Much Leave Time? • FMLA/CFRA – 12 Workweeks of Leave in a 12 -Month Period • FMLA Only – 26 Workweeks for Military Caregiver Leave • PDL – Up to 4 Months (17 1/3 weeks) per Pregnancy 8

Types of Leave • FMLA/CFRA – Continuous Block of Time – Reduced Leave Schedule § Part-Time – Intermittent Leave § Portion of Workweek 9

Responding to Leave Requests • FMLA – Eligibility notice – Rights and responsibilities notice – Designation notice § Provide within 5 business days • CFRA – Respond within 5 business days 10

Medical Certifications • Employer Can Require Medical Certification to Verify Serious Health Condition • Timing – When employee requests leave or within 5 business days – Employee must provide certification within 15 calendar days • Intermittent Leave/Reduced Leave Schedule – Certification must address medical necessity 11

Medical Certifications • Employer Contact w/Health Care Provider – FMLA § HR professional, leave administrator, management official or health care provider may contact employee’s health care provider to clarify or authenticate medical certification. – CFRA § Employer may not contact health care provider for any reason other than to authenticate a medical certification. 12

Medical Certifications • Second and Third Opinions – Employer may require 2 nd opinion at employer’s expense if it has “good faith, objective reason to doubt the validity of the certification. ” – If 1 st and 2 nd opinions differ, employer and employee should jointly designate a third health care provider. – Third opinion is final and binding. 13

Medical Certifications • Certification for Parent, Child, Spouse, or Registered Domestic Partner – Must be Accepted if Properly Filled Out – No Second or Third Opinions – If for family member, must state that participation of the employee is warranted 14

Recertification • FMLA – Generally permitted every 30 days – In all cases, employer may require every 6 months • CFRA – Upon expiration of the estimated time in certification – Employee asks for additional leave 15

All Leaves Are Unpaid • What About Using Accrued Time Off? – FMLA/CFRA § Employees May Elect/Employers May Require Employees to Use Paid Accrued Leave § May Not Require Employee to Use Sick Time for Ill Family Member – PDL § Employer May Require Employee to Use Accrued Sick Leave During Otherwise Unpaid Portion of Leave § Employee May Request to Use Sick Leave, Vacation Leave, Paid Time Off and Any Other Leave Credits 16

Maintenance of Health Benefits • FMLA/CFRA – Maintain Same Level of Health Benefits § Includes Vision, Dental, etc. § Flex Credits • PDL – Maintain Coverage Under Group Health Plan 17

True, False, or Maybe An employee is entitled to 12 weeks of leave under the FMLA and another 12 weeks of leave under the CFRA. MAYBE 18

FMLA, CFRA, and PDL Special Interaction Between FMLA, CFRA, and PDL 19 Pre-birth Disability Post-birth Disability Health Care FMLA and/or PDL FMLA and/or CFRA Job Protected FMLA and/or PDL FMLA and/or CFRA 4 Weeks 6 Weeks 2 Weeks 10 Weeks “Bonding”

FMLA, CFRA, and PDL Special Interaction Between FMLA, CFRA, and PDL Pre-birth Disability “Bonding” FMLA and/or PDL PDL CFRA Job FMLA Protected and/or PDL FMLA and/or PDL CFRA 4 Weeks 12 Weeks Health Care 8 Weeks 20 Post-birth Disability

Reinstatement After Leave • FMLA/CFRA – Right to Same, Equivalent, or Comparable Position – Fitness-for-Duty Certification – Employee’s Obligation to Report on His/Her Condition – No Reinstatement if Position Eliminated Through Layoff • PDL – Right to Same or Comparable Position 21

Expiration of Leave What if employee exhausts all FMLA, CFRA, and/or PDL leave and requests more time? 22

Questions? Leighton Davis Henderson Attorney | Los Angeles 310. 981. 2034 | lhenderson@lcwlegal. com www. lcwlegal. com/Leighton-Henderson 23