Essential leave laws every CA employer should know! Weintraub Tobin attorneys Meagan Bainbridge and Ryan Abernethy break down the key points and provide practical advice on managing these leaves in the latest installment of California Employment News.
Watch this episode on the Weintraub YouTube channel here.
Show Notes:
Meagan:
Hello, everyone. Thank you for joining us for this installment of the California Employment News, an informative video and podcast resource offered by the Labor and Employment Group at Weintraub Tobin. My name is Meagan Bainbridge, and I’m a shareholder in the Firm’s Labor and Employment Group. Today, I’m joined by my partner, Ryan Abernethy, to recap for you a recent seminar we presented on which provided a comprehensive review of leave laws all California employers should be aware of. Ryan, why don’t you start us off with a review of the big two, the Federal Family Medical Leave Act and California’s Family Rights Act?
Ryan:
Thanks, Megan. The Federal Family Medical Leave Act or the FMLA, and the California equivalent, which is the California Family Medical Rights Act or the CFRA, they provide eligible employees with up to 12 weeks of unpaid, job-protective leave to care for their own serious health condition or a family member with a serious health condition or to bond with a new child. The FMLA only applies to employers with 50 or more employees within a 75-mile radius, but the CFRA applies to all California employers who have as few as five or more employees. The 12 weeks of unpaid leave is available for employees to take every 12-month period as set by the employer. But the 12 weeks of leave don’t have to be taken all at one time. Employees can take FMLA or CFRA leave on an intermittent or reduced schedule basis. But thankfully for employers, CFRA and FMLA leave, they run concurrently with only a few exceptions. The FMLA and CFRA provide eligible employees with leave coverage to care for most immediate family members, including even adult children, under certain circumstances. And the CFRA only provides coverage for parents-in-law and registered domestic partners. In addition to family members, the CFRA also provides leave for every eligible employee to care for a designated person and whose connection with the employee is the equivalent of a family member. This could be people such as a close friend or a roommate. Again, employees can seek coverage to care for these individuals as well. The FMLA and CFRA also provide enhanced job protections of up to 26 weeks of leave for demands associated with family members, military deployments, or military injuries. So, Megan, can you tell us a bit about the pregnancy disability leave?
Meagan:
Yeah, of course. So, pregnancy disability leave is the third category of protected extended leave. It provides job-protected unpaid leave for up to four months if a person is disabled due to pregnancy, childbirth, or a related medical condition. This leave is available to employers with employees of five or more, and it runs concurrently with FMLA but not with the CFRA. What that means is employees may be eligible for up to seven months of protected leave, four months for the period in which they are disabled due to pregnancy, and an additional three months of baby bonding leave. In addition, there are numerous other states that provide employees’ leave beyond the traditional leave laws we regularly think of. Previously this year, Beth and Shauna presented episodes on the recent updates to the California Paid Sick Leave Statute, a new protected leave of absence for reproductive loss. There are also leaves that allow employees to attend the funeral of a loved one, vote in an election, serve on a jury, obtain domestic violence protection, take part in a trial as a victim of crime, participate in a child’s school activities, attend an adult literacy program, participate in rehab, donate organ or bone marrow. There are also leaves specifically for employees in the military and/or their spouses. Many of these leaves are dependent on how many employees an employer has, so it’s important for employers to understand which leave laws might apply to them. Finally, employers should also be aware that further leave beyond that which is required under the FMLA, CFRA, PDL, or any of those other statutes may be required under the Americans with Disabilities Act. Ryan and I will be back in a few weeks to discuss reasonable accommodations. Until then, Ryan, do you have any advice for employers as they provide protected leaves to their employees?
Ryan:
Certainly, yeah. Thanks, Megan. While employers are required to provide all these types of medical-related leaves, they don’t have to just take their employee’s word for it that such leave is warranted. Employers may require medical certification, provided that it’s sent within 15 days of any request for FMLA or CFRA leave. The California Civil Rights Department has a standard form that’s available on their website for medical certification, and that includes all the relevant information, such as whether a serious health condition exists that prevents the employee from performing the essential functions of their job, as well as the expected return date of the employee. The form also contains the required disclaimers and limitations that prevent the employee’s healthcare provider from sending the employer too much information about the employee’s health condition. Too often, clients do call us and tell us about an employee who has been absent from work for an extended period of time, and they don’t know what to do, or they want to terminate the employee, for instance, who is on leave. We ask the client how they designated the absence; we all too often get the response, “Well, we just accepted the doctor’s notes,” or “We just put them on a personal leave based on what they told us.” It’s wise for employers to evaluate the reason for the employee’s absence and whether it falls into any particular leave or accommodation statutes at the very start of the leave and then to designate that leave and absence accordingly. Lastly, I’ll say that all the statutory leave and accommodation laws have anti-retaliation provisions. Most of the leave statutes also have a right of reinstatement provision. Employers must always make employment decisions while someone’s on medical relief based on legitimate non-retaliatory reasons. If an employer fails to reinstate or terminate an employee during a medical leave or upon completion of a medical leave, an inference will exist that the employer terminated that employee because they engaged in protected activity.
Meagan:
That’s right. That does it for today. Thank you for joining us. Ryan and I will be back soon to delve into reasonable accommodations, so stay tuned for that episode. You can continue to find California Employment News on our blog at www.thelelawblog.com or wherever you listen to your favorite podcast. We’ll see you next time.
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