November 9, 2017 3:00 pm
California Chamber of Commerce reveals that handling requests for leave is one of the biggest challenges afflicting many human resource (HR) departments in California. The overlapping relationship between the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) can be confusing to many employers who do not fully understand the similarities and differences between the two. Consequently, these two laws have become the most litigated employment law cases that often attract large liabilities. To avoid this fate, enlighten yourself about FMLA leave and how it relates to CFRA.
Under FMLA, eligible employees have the right to 12 workweeks of job-protected leave because of the birth of a child or placement of a child with the employee for adoption or foster care. Unlike CFRA, the FMLA permits leave for a period of disability due to pregnancy, childbirth, prenatal care, or related medical conditions. . HR Daily Advisor notes that women will, potentially be entitled to more protected time away from work due to the intersection between FMLA, CFRA and the Pregnancy Disability Leave (PDL) law. This is because they are entitled to leave under PDL and FMLA, if for example the employee experiences a pregnancy related disability, in addition to CFRA leave for bonding with a baby.
Furthermore, FMLA provides families of military personnel with the right to additional leave due to a qualifying exigency, such as short-notice deployment, military events, or parental care. These family members may be the spouse, parent or child of the employee and must – according to FMLA – be a member of the regular Armed Forces on active duty status, members of the National Guard or Reserves, and certain retired members of the regular Armed Forces or Reserves. The FMLA also provides military caregiver leave for family members of the Armed Forces and certain veterans.
The major differentiating features of CFRA from FMLA are as follows:
As an employer, you should be aware of the interplay and differences between the FMLA and CFRA so you don’t improperly deny employee’s requests for unpaid leave.
FMLA and CFRA leave periods will run concurrently, except for disability leave for pregnancy, childbirth, or pregnancy-related medical conditions. In that situation, leave under either the FMLA or PDL to deal with a pregnancy-related disability does not run concurrently with CFRA leave. However, you may require leave under the CFRA to run concurrently with vacation, personal leave, and sick leave.
In 2013, the Department of Labor (DOL) expanded the definition of spouse to include employees in same-sex marriages. Known as the Final Rule, the amendment/revision of the definition meant that employees in a same-sex marriage could take leave to care for their spouse.
The Final Rule, effective since March 27, 2015, also allows your employees to take leave for a qualifying exigency because of their same-sex spouse’s military service. The Final Rule also entitles employees to a military caregiver leave to care for their same-sex spouse.
An employee in a legally recognized same-sex marriage can also ask for leave to enable him or her care for the child of their same-sex spouse. The same case is applicable when an employee needs time off to care for a parent of their same-sex spouse.
Not all of your employees will be eligible for leave under FMLA. FindLaw notes that the determination of an employee’s eligibility for FMLA occurs when either the employee requests FMLA leave or when you acquire knowledge that an employee’s absence may be for an FMLA-qualifying reason. Employees are eligible for FMLA leave if they have worked for you for at least 12 months. The employee must also have worked for at least 1,250 hours during the previous 12-month period prior to the commencement of the FMLA leave. Equally important is the need for your company to have 50 plus employees within 75 miles radius of the employee’s workstation. While the 12 months need not be consecutive, generally only the month of employment during the seven years prior to the date leave is to begin must be counted. Employment periods more than seven years earlier must be counted, however, if the break in service occurred because of fulfillment of duties in the military or if the breaks were part of a written agreement such as a collective bargaining agreement.
The sole aim of FMLA is to enable employees maintain a healthy work-life balance. The following circumstances may require you to grant leave to an employee under FMLA:
The minimum amount of working hours (1,250 hours) does not include paid non-working time such as paid sick days, holidays, vacations and any other day that the employee was absent from work with pay. This requirement only applies to the 12-month period within which the employee has been working for you before he/she requests for a FMLA leave.
FindLaw adds that employees who work for businesses in remote locations may be ineligible for FMLA so long as the number of employees within a 75-mile radius is less than 50. In the event your company employs employees who work from home, the FMLA generally considers remote employee’s worksites to be the location to which the employee reports and from which assignments are made. So even if the employee’s worksite is more than 75 miles from the employee’s home or remote office, if the worksite meets the required 50-employee threshold, the employee will be eligible for FMLA if they meet the other two eligibility requirements.
The application process for FMLA leave begins either when an employee notifies you that they need leave due to a condition that falls under FMLA or when you acquire the knowledge that an employee may need leave due to a FMLA-qualifying reason. If the need for leave is foreseeable, employees are required to provide notice 30 days before the leave is to commence. In cases where the need for leave is unforeseeable, employees are required to notify you as soon as practicable.
After receipt of the request/notice, send an eligibility notice to the concerned employees informing them whether they qualify for the leave or not. Absent extenuating circumstances, the eligibility notice must be sent to the employee within five business days. Each time the eligibility notice is provided to the employee, you must also provide the rights and responsibilities notice detailing the specific expectations and obligations of the employee regarding FMLA leave, and explaining the consequences of failure to meet those obligations. If you have enough information to determine that the employee’s request is for an FMLA-qualifying reason, you must provide notice to the employee designating leave as FMLA-qualifying. You can submit this designation notice to the employee at the same time as the rights and responsibilities notice.
If you do not have enough information to determine whether the requested leave is for an FMLA-qualifying reason, then you may request additional information and/or medical certification. The employee must furnish you with this certification within 15 calendar days after your request, unless it is not practicable under the circumstances.
Calculating FMLA leave requires you to designate a 12-month period within which an employee is eligible for the 12 workweeks of leave. You can choose from the following four methods to calculate the FMLA leave eligibility:
The calendar year method and fixed 12-month leave year allows employees to take FMLA leave at any point in the 12-month timespan. The rolling forward method means that an employee is entitled to 12 weeks of leave during the 12-month period beginning on the first date the employee takes FMLA leave. The next 12-month period does not begin until the first time the employee takes FMLA leave after the completion of any previous 12-month period. Under the rolling back method, each time an employee takes leave, the employer must determine the employee’s leave entitlement by calculating the balance of the 12-week allotment that has not been used during the immediately preceding 12 months.
Whichever method you choose, be sure you apply it evenly across the board to all employees. Once you have chosen your preferred calculation method, you can change it later, but you must give all employees at least 60 days’ notice first.
You can deny an employee FMLA leave if he or she fails to provide you with medical certification within 15 calendar days. However, you should keep in mind that if the employee has extenuating circumstances where it’s not practicable to get you the certification within 15 days, you should be flexible to allow reasonable extensions of that time. The certification should indicate these details:
Seek a second opinion if you feel that information in the certification is not valid. You, as the employer, would be required to pay for the cost of a second opinion. If the second opinion differs from the employee’s initial certification, you can require a third opinion of a health care provider chosen by both the employee and employer at your expense. If the second and third opinions do not confirm the employee’s right to FMLA leave, the leave may be denied and any leave taken already may be considered unexcused to the extent consistent with your policies.
Your employee should use the normal call-in or notice procedures consistent with your internal policies or employee handbook to inform you of his/her need for FMLA leave. You need sufficient information to enable you ascertain whether the leave is FMLA-protected or not. However, the employee need not tell you the diagnosis of the illness but just to notify you that the leave is a result of an FMLA-protected condition. Employees are further responsible for informing you of any changes in their conditions, which might affect the leave period.
FMLA does not obligate you to provide employees with any paid leave. However, employees can use their accrued paid leave or you can request them to use it concurrently with their FMLA leave. An employee is also entitled to any bonuses or benefits that were due to him or her before the FMLA leave.
Employees on FMLA leave can still enjoy the health benefits of your company’s employee health plan. Terms of their coverage remains the same and you should ensure that they pay their health premiums as per schedule.
After conclusion of the FMLA leave, an employee has the right to resume his or her job. If this is not currently possible, install him or her in a new position with the same duties, skill level, salary and benefits as his or her previous position. However, you need not reinstate employees in case their FMLA entitlement elapses yet they do not resume work as required. Be cautious when refusing to re-instate an employee as they may be entitled to additional unpaid leave under the ADA for continuing disability after FMLA has been exhausted. You may need to engage in the ADA interactive process to determine whether additional leave is a reasonable accommodation.
Understanding FMLA and how it dovetails with CFRA will spare you penalties that may arise from contravening the provisions of both acts. With this knowledge, you can also boost productivity levels by allowing your employees to attend to their own illnesses as well as those of family members when it matters most without fear of losing their job.
This blog post is intended for informational purposes only and does not constitute legal advice. No attorney-client relationship is created between the author and reader of this blog post, and its content should not be relied upon as legal advice. Readers are urged to consult legal counsel when seeking legal advice.