FAMILY AND MEDICAL LEAVE LAWS Presented by Susan Thorne & Melinda Faber December 9, 2019
Employee Leave of Absence: Pop Quiz #1 • Janet, a full time Occupational Therapist, is released from her maternity leave. • She then requests to utilize her full bonding leave entitlement. • Her employer says she can only take a maximum of 4 weeks of bonding because she utilized 8 weeks of FMLA, and is only entitled to a combined 12 weeks. Do you: □ Strongly agree □ Agree □ Disagree □ Strongly Disagree 2
Employee Leave of Absence: Pop Quiz #2 • An eligible male Deaf and Hard of Hearing Interpreter requests child bonding leave, but the district does not have a qualified substitute. • The district must grant the leave. Do you: □ Strongly agree □ Agree □ Disagree □ Strongly Disagree 3
Employee Leave of Absence FMLA/CFRA 4
The Family and Medical Leave Act is a federal law, and the California Family Rights Act is a state law that allows employees to take leave for the following reasons: What is • Employee’s own serious health condition FMLA and • Birth and care of a child; bonding (CFRA) • Placement of a child for adoption or CFRA? foster care • Care of a spouse, child or parent with a serious health condition (29 U.S.C. § 2601, et seq.; Gov. Code, § 12945.2.) 5
FMLA provides for additional leave entitlements including: What • To attend to a qualifying exigency arising from the fact an employee’s covered additional military family member is being deployed to a foreign country on covered active leave does duty. • To care for a family member injured in the FMLA line of duty in active military service (26 weeks in a 12 month period). provide? (29 U.S.C. § 2601, et seq.; Gov. Code, § 12945.2.) 6
Who must • Employers who employ at least 50 employees within 75 miles of that comply worksite. with (29 C.F.R. § 825.110(a); Cal. Code Regs., tit. 2, § 11087(d).) FMLA/CFRA ? 7
• Must be employed for at least 12 months How does an • Worked at least 1250 hours during the 12 month period immediately preceding the employee date leave is to begin qualify for (29 C.F.R. § 825.110(a); Cal. Code Regs., tit. FMLA/CFRA? 2, § 11087(d).) 8
What is a “Serious Health Condition”: An illness, injury, impairment, or physical or mental condition that involves: Serious Health • Inpatient care (e.g., an overnight stay) or • Continuing treatment by a health care Condition? provider 9
Examples • Heart attacks or heart conditions of serious requiring bypass surgery • Most cancers health • Back conditions requiring extensive conditions therapy or surgery • Alzheimer’s Disease include: • Pneumonia 10
• 12 workweeks of unpaid leave in a 12 month period. • Continued employer paid health coverage What does as if the employee was actively working; any portion of employee paid premiums FMLA/CFRA must continue to be paid by the employee. guarantee? • Reinstatement to the same or an equivalent position. (29 U.S.C. § 2601, et seq.; Gov. Code, § 12945.2. 11
When • When leave is foreseeable, an employer should an may require at least 30 days notice (e.g., planned medical treatment or birth of child). employer • Otherwise, notice must be given to the be notified? employer “as soon as practicable.” 12
• Note: Employees need not expressly request family medical leave in order to trigger the employer’s duty to provide written information regarding such leave; employees need only provide a qualifying reason for the requested leave. FMLA/CFRA • Employers may require medical certification of a serious health condition before granting an employee’s request for FMLA/CFRA leave. 13
FMLA and CFRA leaves run concurrently except for: • Pregnancy-related disabilities • Care for registered domestic partner with FMLA/CFRA a serious health condition (CFRA only) • Qualifying exigency • Care for an injured service member beyond 12 weeks 14
Employee Leave Scenario #1 • Sarah is taken off work 6 weeks prior to the birth of her child, who she delivers by cesarean. • Her doctor releases her 10 weeks post birth. She then elects to utilize her full bonding entitlement. • How much leave is her employer obligated to grant her? 15
Questions? 16
Employee Leave of Absence Pregnancy Disability Leave (PDL) California Pregnancy Disability Leave CFRA 17
• PDL, also known as maternity leave, is for a period of up to 4 months (usually 6 to 8 weeks). Pregnancy • Continued health coverage depends on whether the employer maintains coverage during other disability leaves. Disability • Pregnancy disability must be treated the Leave same as all other disabilities. • Guarantees reinstatement to the same or (PDL) comparable position (Gov. Code, § 12945, subd. (b)(2); Ed. Code, §§ 45965 and 45193.) 18
• Leave runs concurrently with FMLA (3 California months/12 weeks), but not CFRA • Total FMLA/PDL = up to 4 months Pregnancy • Employees are entitled to use sick leave for pregnancy-related disabilities Disability Leave: (Gov. Code, § 12945, subd. (b)(2); Ed. Code, §§ 45965 and 45193.) 19
CFRA – Leave for the birth, adoption, or foster care placement of a child: • CFRA provides an additional 12 weeks of CFRA: leave for purposes of bonding: • Runs consecutively with FMLA after PDL • (See exceptions on slide 14) (Gov. Code, § 12945.2.) 20
Employee Leave of Absence FMLA Leave Tracking 21
• SDCOE utilizes the eFMLA program to track FMLA leave and generate FMLA correspondences. FMLA • eFMLA document capabilities include: cover letter, eligibility notices, return to Leave work/fitness for duty, designation notice and health condition forms. Tracking: • Tracking capabilities: running count of weeks utilized coupled with individual event tracking. 22
Employee Leave of Absence Leave Compensation 23
• Please consult legal counsel on applicable Ed Code provisions and CA labor law. • Some provisions may not be applicable to Charter Schools e.g. (The California Charter Schools Act) Charter Education Other Regulations Code School Section 45965 29 U.S.C. § 2601 Section 45193 Gov. Code, § 12945.2 Specifics: Section 44983 29 C.F.R. § 825.110(a) Section 45196 Cal. Code Regs., tit. 2, § 11087(d) Section 44984 Gov. Code, § 12945, subd. (b)(2) Section 45192 24 Slides represent SDCOE practices. Please consult legal for your specific conditions.
Full Paid • Employees are entitled to use their full paid sick leave. Sick Leave: • Employees may begin using this leave immediately. 25 Slides represent SDCOE practices. Please consult legal for your specific conditions.
• Employees may also use differential leave (at least 50% pay), of which they are provided 100 days (up to 5 months) per school year. • Certificated employees may use the balance of their differential in a Reduced subsequent school year (after the exhaustion of their new bank of full paid sick leave) if the school year ends before Pay: the 5 month period. • Classified employees are entitled to receive a new 100 day entitlement for use (after the exhaustion of their new bank of full paid sick leave) in the new school year. Certificated: Ed. Code Section 44983 Classified: Ed. Code Section 45196 26 Slides represent SDCOE practices. Please consult legal for your specific conditions.
Employee Leave of Absence: Pop Quiz #3 • Paul is injured at work and files a workers’ compensation claim. • The doctor takes him off work for 4 weeks to recover. • The claim is ultimately accepted by the carrier. • His employer requires him to use his sick leave during his recovery. Do you: □ Strongly agree □ Agree □ Disagree □ Strongly Disagree 27
• Employees receive 60 days of industrial accident leave per accepted claim. • This leave does not accumulate and Industrial begins on the first day of absence. • When an industrial accident or illness Accident leave overlaps into the next fiscal year, the employee shall be entitled to only the and Illness amount of unused 60-day leave entitlement due him/her for the same Leave: illness or injury. This applies to both certificated and classified employees. Certificated: Ed. Code Section 44984 Classified: Ed. Code Section 45192 28 Slides represent SDCOE practices. Please consult legal for your specific conditions.
What is PFL and which employees qualify? • The California Paid Family Leave (PFL) Paid program allows qualifying employees to be paid a portion of their salary while on another leave, such as FMLA or CFRA, Family which would result in a loss of pay. Qualifying employees must pay into State Leave Disability Insurance (SDI). School district and County Office employees do not (PFL): qualify for PFL because they do not pay into SDI. • Please consult your legal team to determine if your employees qualify for PFL. 29 Slides represent SDCOE practices. Please consult legal for your specific conditions.
Employee Leave Scenario #2 • Joel has been off work for 4 weeks due to a work injury. • The claim has been accepted by the carrier, and his physician has cleared him to return to work. However, his clearance includes restrictions that cannot be accommodated. • How should his eligible leave be applied? 30
Questions? 31
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