class 10 - the law of leave, unpaid and paid

Question 1

FMLA

Answer 1

To help employees balance the demands of the workplace with personal and family needs, Congress enacted the Family and Medical Leave Act, or FMLA. (29 U.S.C. §§ 2601 and following.)
- Under the FMLA, if your business has 50 or more employees, you may be required to give an employee up to 12 weeks of unpaid leave for certain family and medical reasons. And the law requires you to return the employee to the same or a similar position when the leave is over, except when it would be prohibitively expensive for you to take back a highly paid employee.

The FMLA also allows certain employees with family members in the military to take leave.
- As part of their 12-week entitlement, employees may take FMLA leave to handle practical concerns relating to a family member’s call to active duty. And, the law grants a 26-week leave entitlement to employees who need time off to care for a family member who is suffering from a serious illness or injury related to their military service. These provisions are covered in “Leave for Military Families,” below.

Question 2

Who is covered under FMLA

Answer 2

FMLA covers your business if it has had 50 or more employees for 20 ir more weeks in the current or preceding year
The count, for FMLA purposes, includes all employees on your payroll whether part time, full time or already on leave

An employee in a covered business is eligible for FMLA leave only if the employee works within a 75-mile radius of 50 or more of your employees and has worked for you:
- for at least 12 months (these months do not have to be consecutive), and
- for at least 1,250 hours during the 12 months before the leave.
If you have remote employees who meet the 12 months and 1,250 hours requirements, they are eligible for FMLA leave if they report to a location where 50 employees are present within a 75-mile radius. In other words, a remote employee’s worksite is not the home for FMLA purposes—it is the location to which they report

Question 3

FMLA Poster Requirements and Remote Employees

Answer 3

If your business is subject to the FMLA, you must display a poster in the workplace titled “employee rights under the family and medical leave act”
- If any of your employees work remotely, FMLA regulations allow you to provide th eposter to them electronically– for example, by posting it on a company intranet site, an external website or a shared network drive
- Simply emailing it to them is not sufficient under the law
- Give your employees instructions on how to access the poster and make sure thye cna view it at all times
- Electronic provision is eprmitted only for remote emplpuees
- You should also inform employees about their rights to FMLA in your employee handbook

Question 4

Defining serious health condition

Answer 4

The FMLA rules for determining who has a serious health condition are complocated

Genreally, however, an injury or illness may qualify as a serious health condition if it involves impatient care
The person who has been hospitalized is considered to have a serious health condition for as long as the individual can’t work, attend school or perform other normal life activities

In addition, an injury or illness may qualify as a serious health condiiton if the parient requires continuing rreatment and can’t perform normal acitivites for more than three consecutive days

A person who needs treatment for preganancy or prenatal care, a chronic health conditon or a long-term or permaneent health conditoon may also have a serius health condition

Question 5

Defining family

Answer 5

An employee is only eligible to take FMLA leave to care for certain family members: the employee’s spouse, parent or child

A spouse is an employee’s husband or wife as ercognize under state law, which may include common-law spouses in teh minority of states that recognize common-law marriage

An employee’s son or daughter can be a biolopgical, adopted or foster child; a stepchild; or legal ward. A child whom the employee cares for or financially supports also sounds

Children must be younger than 18 or if age 18 or older they muyst be incapable of caring for themselves because of a mental or physical disability

Question 6

Birth, adoption or foster care

Answer 6

An eligible employee may take FMLA leave because of the birth of a child or because a child has been placed with the employee for adoption or foster care. Under the FMLA, foster care is defined as 24-hour care for a child away from parents or guardians, based on a court order or an agreement approved by a state agency
The period for taking leave based on birth, adoption or foster care expires after one eyar after the child born or placed
An expectant mother may begin FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work
Likewise, an employee with a prgant wife may be eligible for FMLA leave to care for his pregant spouse before the bay is born

If both spouses work for your company, you can limit the toal number of workweeks taken by both spouses to care for a child to 12 during any 12-month period
- However, if the child’s parents are not married to one another, each parent is entitled to the full allotment of 12 workweeks of leave
- On the other hand, an unmarried employee isn’t eligible for FMLA leave to care for a pregnant partner during pregnancy, because they don’t meet the definition of “family member” under the FMLA

Question 7

Injury or illness

Answer 7

Recognizing the strain placed on the families of military servicepeople, the FMLA provides time off for the family members of a member of the armed forces who suffers a serious injury or illness incurred in the line of active duty. This includes a service member with a preexisting injury or illness that was aggravated in the line of duty. It also extends to veterans who were in the military within the past five years and are being treated for a duty-related injury or illness.

• The covered family member can take up to 26 weeks of leave during a single 12-month period to care for the service member. (The 26-week cap combines all types of FMLA leave.) For this type of leave only, more family members are covered, including siblings and next of kin

Question 8

Qualifying exigency
The FMLA provides that if an employee’s spouse, son, daughter, or parent is called to active duty in the military, the employee can take up to 12 weeks of FMLA leave during a 12-month period for a “qualifying exigency.” Such events include:

Answer 8

Short-notice deployment.
This applies when the service member receives notice of a call-up within seven days of the deployment. The FMLA leave for this purpose is limited to seven calendar days from when the service member receives the notice.

Military events.
This allows the family member to attend official ceremonies, programs, or events related to the service member’s active duty or call-up.

Child care and school activities. This includes arranging alternative child care, caring for children on an immediate, urgent basis, and attending school meetings.

Financial and legal arrangements.
This gives the family member the time to make or update financial or legal plans to address the service member’s absence. For example, this can include making a will or trust, or preparing a power of attorney.

Counseling. The employee can take time off to receive counseling.

Rest and recuperation.
The employee can take FMLA leave to spend time with the service member who is on short-term R&R during a period of deployment. These leaves are limited to 15 days for each instance of R&R.

Postdeployment activities. This includes arrival ceremonies, reintegration briefings, and other official programs within 90 days after the deployment ends. It also includes leave to address issues arising from the service member’s death.

Parental care.
The employee can use qualifying exigency leave to arrange alternate care or provide urgent care for a military member’s parent, to transfer or admit the parent to a care facility, or to attend meetings with staff at the parent’s facility, if the parent is unable to care for himself or herself.

Additional activities.
The employee can take FMLA leave for other events related to the service member’s deployment, but only if the employer and the employee agree to the timing and length of the leave

Question 9

Temporary transfer to another job

Answer 9

If it is disruptive to your business to allow a particular employee to have a flexible or reduced work schedule, check to see whether there’s another job open that will accommodate the employee’s request with less disruption. If so, you can transfer the employee temporarily to the other job.

The alternative job must have equivalent pay and benefits. The duties, however, needn’t be equivalent as long as it isn’t obviously a demotion, which gives the appearance that your company is retaliating against an employee for taking FMLA leave, and could create legal problems

Question 10

Substituting paid leave

Answer 10

You’re not required to pay for FMLA leave, but if you offer paid time off— vacation, personal, family, or sick leave—as a job benefit, the employee can ask (or you can require the employee) to substitute paid leave for unpaid FMLA leave in most situations.

You or the employee may substitute paid time off for unpaid FMLA leave as long as the reason for leave is covered by your paid leave policy and the employee meets the other requirements of your paid leave program.
- For example, if your company allows employees to use their sick leave to care for family members who are ill, they may substitute paid sick leave for FMLA leave used to care for a family member with a serious health condition. However, you don’t have to allow employees to use sick leave for purposes that aren’t covered by your program, such as bonding with a new child.

You may also require employees to follow your usual procedures for paid leave, but you may not deny them unpaid FMLA leave if they don’t follow those procedures. An employee’s failure to follow company policies for paid leave affects only their right to paid leave, not their rights under the FMLA

Question 11

Advance notice of leave

Answer 11

Often, an employee can foresee the need for medical or bonding leave. For example, most employees know approximately when a baby will be born or can schedule a nonemergency surgery well in advance. You can require, in these situations, that an employee notify you at least 30 days before the unpaid leave is to begin

But such advance notice isn’t always possible and the FMLA takes this into account:
- If a child is born prematurely or the adoption placement goes through suddenly, the employee can give you a shorter notice
- This also applies for family emergencies

Where the need for FMLA leave isn’t foreseeable, the employee or a family member can notify you either in person or by phone, fax, or email of the circumstances requiring the leave. If an employee’s leave is based on a serious health condition that requires planned medical treatment, you can require the employee to make a reasonable effort to schedule the treatment so that it won’t unduly disrupt your business.

Question 12

Certification

Answer 12

Theoretically, an employee could abuse the system by falsely claiming that the employee or a family member has a serious health condition. The FMLA recognizes this and allows you to require a certificate from the patient’s health care provider stating:
- the date the serious health condition started
- the length of time the condition is likely to last
- diagnosis of the condition
- treatment prescribed, and
- whether inpatient treatment is required.

Question 13

Employee’s own condition vs family’s

Answer 13

Employee’s own condition
- If the employee seeks leave because of the employee’s own serious health condition, you can require that the certificate state either that the employee can’t perform work of any kind or that the employee can’t perform the essential functions of the job. Give the employee or the doctor a list of the job’s essential functions

Family member’s condition
- if the employee seeks leave to care for a family member, you can require that the certificate state that the patient needs help meeting basic medical, hygiene, nutritional, safety, or transportation needs, or that the employee is needed to provide care. The employee must indicate on the certificate what care the employee will provide and how long that care is likely to be required

Question 14

Second and third options

Answer 14

If, after receiving a certification, you are not fully convinced the request entitles the employee to FMLA leave, you can require the employee to get an opinion from a second health care provider. This can be someone you designate or approve, but it can’t be someone you regularly employ, such as a company doctor. And you, rather than the employee, must pay for the second opinion

Consider whether it’s worth asking for a second opinion
– Just because the FMLA allows you to get a second opinion doesn’t mean it’s a smart thing to do. Often it’s not. Think long and hard before getting adversarial with employees over health determinations. If you make an employee jump through hoops to qualify for an unpaid absence, you’ll probably wind up with a resentful employee who will never again give you full effort and loyalty. And the fallout from being unnecessarily suspicious about one employee can easily infect the entire workplace

If you wind up with conflicting opinions, you cna require a third opinion from another health care provider who is approved by both you and opnion. The third option si binding on bothof you

You may not request second or third opinions for either type of military family leave

Question 15

Recertification

Answer 15

You can ask an employee to give you a recertification of a medical condition to support an ongoing leave request. You can require recertifications every six months, or every 30 days, for short-term conditions. You can request recertification more often if any of the following is true:
- The employee requests an extension of leave.
- Circumstances have changed significantly (for example, the duration or nature of the illness becomes different from what was anticipated).
- You receive information casting doubt on the continuing validity of the certification

Question 16

Health benefits

Answer 16

If you have a group health plan for employees, you must maintain coverage for employees who are on FMLA leave. You must keep the coverage at the same level the employees would have if they worked continuously.

In some cases, however, you can require an employee to repay the premiums you paid for this continuing coverage. Generally, you can demand reimburse- ment if the employee doesn’t come back to work after the leave period expires. But you can’t demand reimbursement if the employee doesn’t return to work in either of the following situations:
- The employee or a family member has suffered continuation, recurrence, or onset of a serious health condition (the kind of thing that would have justified taking the unpaid leave in the first place).
- There are other circumstances beyond the control of the employee. Examples of this include: An employee’s spouse is unexpectedly transferred to a job location more than 75 miles from the employee’s worksite, a person other than an immediate family member has a serious health condition and the employee is needed to provide care, or the employee is laid off while on leave

Question 17

Job protection

Answer 17

When an eligible employee returns from taking a leave, your company must restore the employee to the job that the employee held when the leave began or to a similar job—one with equivalent pay, benefits, and other terms of employment. However, an employee has no greater right to reinstatement or other benefits than if the employee had been continuously employed during the FMLA leave period

Question 18

Exemption for highly paid employees

Answer 18

Recognizing that it’s difficult for many businesses to carry on in the absence of the customary executives and decision makers, the FMLA lets you decline to take back some highly paid employees after their leave. The exemption applies only if both of the following are true:
- The employee is among the highest paid 10% of the salaried people you employ within 75 miles of the place where the employee works.
- Taking back the employee will cause what the statute calls “substantial and grievous economic injury” to your business.

Question 19

Americans with Disabilities Act

Answer 19

The FMLA entitles an employee to 12 weeks of leave for a serious health condition, with health benefits maintained during this period. At the end of the FMLA leave, you must reinstate the employee to the same or an equivalent position.

Here are two other variations:
- The ADA may require you to offer an employee a job with a reasonable accommodation, such as the option to work remotely. If the FMLA entitles an employee to unpaid leave, you can’t avoid granting the leave by requiring the employee to take an accommodation instead.
- If you require certification that an employee is fit to return to work as permitted by the FMLA under a uniform policy imposed by your business, you must also comply with the ADA requirement that the certification be related to the job

Question 20

California Family and Medical Leave

Answer 20

Employers with five or more employees must provide up to 12 weeks of leave each year to care for child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, domestic partner, or designated person with serious health condition; for employee’s own serious illness; to bond with new child; or for qualifying exigency related to active military duty of employee or spouse, domestic partner, child, or parent. Employees are eligible if they have worked for the employer for more than 12 months and have worked 1,250 hours in the previous year (or meet special eligibility requirements for certain employees of air carriers). Employers with at least five

Question 21

CA Pregnancy Disability Leave

Answer 21

Employers with five or more employees must provide up to four months of pregnancy disability leave to employees who are unable to work due to pregnancy or childbirth. This time is in addition to 12 weeks of bonding leave under state family leave law.

Question 22

Paid Sick Leave

Answer 22

All employers must provide employees with one hour of sick leave for every 30 hours worked. Employers may cap sick leave at 24 hours per year. Employees are eligible if they have worked at least 30 days for the employer. Employees may use sick leave for their own illnesses, to care for an ill family member or designated person, or to deal with the effects of domestic violence

Question 23

Paid Family Leave

Answer 23

Employees may receive up to eight weeks of paid family leave benefits from the state disability insurance program when taking leave to bond with a new child; to care for a seriously ill family member; or for qualifying exigencies related to covered active military duty or the employee or the employee’s spouse, domestic partner, child, or parent.

Question 24

Pregnancy Pamphlet

Answer 24

Leave requirements
An employee disabled by pregnancy, childbirth, or a related medical condition is entitled to up to four months of disability leave per pregnancy. If the employer provides more than four months of leave for other types of temporary disabilities, the same leave must be made available to employees who are disabled due to pregnancy, childbirth, or a related medical condition.
Leave can be taken before or after birth during any period of time the employee is physically unable to work because of pregnancy or a pregnancy-related condition. All leave taken in connection with a specific pregnancy counts toward computing the four-month period.
Pregnancy leave is available when an employee is actually disabled. This includes time off needed for prenatal or postnatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, loss or end of pregnancy, or any other related medical condition.
If an employee is disabled as the result of a condition related to pregnancy, childbirth, or associated medical conditions and requests reasonable accommodation upon the advice of the employee’s health-care provider, an employer must provide reasonable accommodation.
As an accommodation, and with advice of a physician, an employee can request transfer to a less strenuous or hazardous position or duties because of the employee’s pregnancy.
Employees are entitled to take pregnancy disability leave in addition to any leave entitlement they might have under CFRA or NPLA. For example, an employee could take up to four months pregnancy disability leave for any period of disability, and also take up to 12 weeks CFRA or NPLA leave to bond with the baby; to bond with an adopted child; or to care for a parent, spouse, or child with a serious health condition. CFRA leave may also be taken for the employee’s own serious health condition. For more information, see DFEH’s brochure entitled “California Family Rights Act.”
If possible, an employee must provide their employer with at least 30 days advance notice of the date for which the pregnancy disability leave or accommodation is sought and the estimated duration of the leave or accommodation.
If 30 days advance notice is not possible due to a change in circumstances or a medical emergency, notice must be given as soon as practicable. The leave may be modified as an employee’s changing medical condition dictates. If the reinstatement date differs from the original agreement, or if no agreement was made, an employer must reinstate the employee within two business days of being given notice that the employee intends to return. When two business days are not feasible, reinstatement must be made as soon as possible to expedite the employee’s return.

Question 25

Paid Sick Leave FAQ

Answer 25

How much paid sick leave am I entitled to take and be paid for?
In general terms, starting on January 1, 2024, the law requires employers to provide and allow employees to use at least 40 hours or five days of paid sick leave per year. Before January 1, 2024, an employer could limit an employee’s use to 24 hours or three days during a year.

How employers provide this leave depends on what kind of plan your employer chooses to offer in order to comply with the paid sick leave law.
What does 40 hours or five days mean?
Starting on January 1, 2024, an employer must allow an employee to use at least five days or 40 hours, whichever is more (refer to DLSE Opinion Letter 2015.08.07).
Therefore, for example, if an employee works 10‑hour days, the employee will be entitled to use at a minimum 50 hours of paid sick leave.
Alternatively, if an employee works only 6 hours a day and takes five days of paid sick leave, for a total of 30 hours, the employee will still have 10 hours remaining.
These examples assume the employee has earned or received upfront their full amount of leave.

Does paid sick leave apply to all employees who work in California?
All employees who work at least 30 days for the same employer within a year in California, including part-time, per diem, in-home supportive services (IHSS) providers, and temporary employees, are covered by this law with some narrow exceptions.

If I am not exempt from paid sick leave, when do I qualify for paid sick leave?
To qualify for sick leave, an employee must:
Work for the same employer for at least 30 days within a year in California, and
Satisfy a 90-day employment period before taking any sick leave.

What is an accrual policy?
An accrual policy is one where employees earn sick leave over time, with the accrued time carrying over in each year of employment. In general terms (and subject to some exceptions), employees under an accrual plan must earn at least one hour of paid sick leave for each 30 hours of work (the 1:30 schedule).

Question 26

What do employees owe returning service members besides honor and thanks

Answer 26

What beside honor and thanks do private employers owe employees who leave their jobs to fulfill a military commitment and then return?

The federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) generally requires that servicemembers called away to military service be promptly reemployed by their employers upon honorable discharge if the servicemembers apply for reinstatement. (ERS of any size)

A critical difference between USERRA reinstatement rights and the right to reinstatement under other leave laws is that a returning service member “is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that [he] would have attained if the person had remained continuously employed.

This provision means that “the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service,” i.e., reemploying the service member “in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites that he or she would have attained if not for the period of service.”

This is called “the escalator principle” because the service member’s career is deemed to have progressed as it would have even during his or her absence. The Supreme Court has interpreted this principle to mean that a returning service member cannot receive a job upon his return that is inferior to the one he held when he left.

Question 27

3 things to know about California’s expanded leave laws

Answer 27

• Under the California Family Rights Act (CFRA), employers with five or more employees must give their eligible employees up to 12 weeks of unpaid, job-protected time off annually to care for the employee’s own serious illness or that of their children, parents, parents-in-law, grandparents, grandchildren, siblings, spouses, and registered domestic partners. Under the state’s paid sick leave law, employers must provide eligible employees with at least 24 hours or three days of paid sick leave to care for themselves or the same family members
• Effective Jan. 1, employers also will have to allow their employees to use unpaid family leave or paid sick leave to care for a “designated person” beyond those on the existing list. Here’s what you need to know:
  1) Designated person may not be just anyone
  The new law defines “designated person” as an individual related by blood not on the existing list, such as a cousin or uncle, or someone “whose association with the employee is the equivalent of a family relationship.”
  In authoring the measure, Bay Area Assembly member Buffy Wicks observed “the overwhelming majority of households today depart from the ‘nuclear family’ model of a married couple and their biological children — instead they increasingly include close loved ones who aren’t biologically or legally related.”
  Under CFRA if an employer were to question the status of the relationship of the person for whom the employee was taking the leave, this could be seen as interfering or discouraging the employee from taking the leaving, exposing the employer to litigation.”
  2) Employers may limit employees to leave to care for one “designated person” per 12-month period
  The new law allows the employee to wait until they request leave to designate the person for whom they will be providing care. The employer, in turn, may limit the employee to one designated person per 12-month period under each law.
  An eligible employee presumably may designate one person for whom to provide care when requesting unpaid family leave and a different person for whom to provide care when requesting paid sick leave
  Leave taken for the new category of “designated person” may only be taken, intermittently or all at once, for the person the employee designates for the first leave within every 12-month period
  3) Leave must be taken “to care for” the designated person’s serious health condition
  The law defines “serious health condition” as a condition requiring either inpatient treatment at a health care facility or continuing outpatient treatment or supervision by a health care provider.
  An employer may require an employee requesting unpaid family leave or paid sick leave to care for someone else (whether a relative on the existing list or, effective Jan. 1, a “designated person”) to provide certification from the health care provider of the individual requiring care that includes, among other things, a statement that the individual’s serious health condition “warrants the participation of” the employee while the individual is being treated or under medical supervision
  Under California regulations, the care warranting the employee’s participation may include psychological comfort. And it does not matter if the employee is not the only one available to provide such care or if the employee is sharing care duties with others

Question 28

California mandates bereavement leave

Answer 28

Starting Jan. 1, California employers with five or more employees will have to offer all employees with at least 30 days on the job at least five days of unpaid, job- protected leave to grieve the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.
This new category of leave is “separate and distinct from,” that is, in addition to, the 12 weeks of unpaid, job-protected leave employers must offer employees to care for themselves or family members (and, effective Jan. 1, one additional designated person) under the California Family Rights Act (CFRA)
Employees need not take their bereavement leave under the new law on consecutive days
The new law does not require that this additional leave time be paid, “except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee” for this purpose.
Upon the employer’s request, an employee must provide documentation of the death of the family member within 30 days of the first day of the leave. That documentation “includes, but is not limited to, a death certificate, a published obituary, a written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.”
An employer with 5-19 employees may require an employee who claims their right to bereavement leave was violated, and who then immediately seeks a right to sue letter from the Civil Rights Department authorizing the employee to file suit against the employer, to engage in mediation before filing the lawsuit. The employee also may request mediation. The department must initiate the mediation within 60 days of receiving a request. A mediator will try to facilitate an agreement between the parties to resolve the dispute without litigation.

Question 29

(SKIT): The Case of Blue Jeans Blues

Answer 29

Context: It is November 26, 2002 at the worldwide headquarters of clothing manufacturer Levi Strauss & Co. in San Francisco. Barbara Neisendorf, Vice President, Worldwide Training and Development, is in the middle of a meeting with her direct supervisor Fred Paulenich in his office

Legal Question: 1) Was she fired in violation of CFRA 2) Is Barbara eligible for the bonus?

First thought: 1) No 2) No

Final thought: 1) No 2) No

Outcome: Court threw out her case and found that Levi did not violate her rights because she could not perform well and was not entitled to her bonus. Non-discriminatory reason for termination. Employment decision based on performance.

Discussion:
3 meetings with fred about her performance
Fred was concerned about her effectiveness and leadership skills/approach
When she returned to work she wanted a job redesign
First, I wanted a job redesign that would limit me to 40-hour workweeks so that I could complete my treatment. Second, I wanted a reporting relationship with someone other than you for at least three months. Both of these recommendations came from my psychiatrist.
Company wanted her to sign off her performance review so she agrees that there were performance deficiency and she will work on them, but she said no
Fred said she was out for 2 weeks longer than the max amount for CFRA? FMLA? and at the end of 12 weeks she wasn’t able to return with/without accommodations
No to bonus
Underperformed
Wants less hours
February?
Hasn’t been an active employee for 14 weeks
Violation?
More than 12 weeks
They didn’t consider her disabled but were willing to accommodate by giving her more weeks
Wanted to work with her but she was not willing to acknowledge her performance
She had to accept her performance review but refused still
Page 26 leave laws

Question 30

HANDOUT 1 - California Family Rights Act/ Federal Family Medical Leave Act

Answer 30

Who is covered? Employers with 5 employees. Includes uncompensated employees, part-time employees, and employees on leave. To be eligible, employees must have worked 1250 hours in the last 12-month period.
What is covered? Birth of employee’s child, placement of child in adoption or foster care with the employee, employee’s own serious health condition or serious health condition of a child, parent, spouse, registered domestic partner of employee, grandparent, grandchild, or sibling, and a “designated person” as an individual related by blood not on the exsisting list, such as a cousin or uncle, or someone “whose association with the employee is the equivalent of a family relationship.” The law allows the employee to wait until they request leave to designate the person for whom they will be providing care. The employer, in turn, may limit the employee to one designated person per 12-month period under each of the unpaid and paid sick leave laws.
How much time may employees take? Up to 12 weeks in a 12- month period. Employer may designate: (a) a calendar year; (b) fixed 12-month period such as fiscal year or employee’s anniversary date; (c) 12-month period measured forward from date of employee’s first family leave; (d) “rolling” period, measured backwards from the date an employee uses any family medical leave. Employer must designate in advance which of the 12 months options it has selected or courts will choose the 12 month period most favorable to the employee.
Does an employee have the right to take intermittent leave? Yes, if the employee is taking the leave for his or her own serious health condition or that of a family member. According to the text at p. 156, at least under the FMLA, the employer is not required to provide intermittent leave to an employee who wishes to bond with a child and may require the employee to take the leave all at once. The employer may, however, provide that as an option.
Notification Requirement? Employee must give 30 days notice of need for leave or give notice as soon as possible. Employer must respond to leave request no later than 10 days after leave request is made. Employer must post notice of right to leave. Employer must notify employee within two business days, absent unusual circumstances, that employer is treating leave as CFRA leave.
May use of vacation/ sick leave be required? An employer may require use of unused vacation leave, but not sick leave if leave is for the care of another. If the leave is for the employee’s own illness, the employer may require the use of unused sick leave.
May an employer require medical certification? An employer may require certification from the employee’s health care provider, but the certification need not disclose for which the leave is being used. If the leave is for the employee’s own health condition, all that the employee’s health care provider must submit is: (a) the date the serious health condition began; (b) the probable duration of the condition; and (c) a statement that the employee is unable to work or unable to perform one or more of the essential tasks of his or her job. If the leave is for the care of another person identified in CFRA, the certification need contain only: (a) the date of the serious health condition; (b) its probable duration; (c) estimated length of time the employee will be needed to care for the other person; (d) a statement that the serious health condition warrants the employee’s participation in the care, including providing psychological support for the other person. Employer may get a second opinion at employer expense if the employer doubts the validity of information in the first certification of the employee’s condition, but not of the condition of a family member if that is the reason for the leave. If the information in the second certification differs from that in the first certification, employer may obtain, at its expense, the opinion of third medical provider, whose opinion is binding on both employer and employee.
What are the differences between CFRA and the federal Family Medical Leave Act (“FMLA”)? Where the CFRA and the FMLA differ, the provision that provides greater employee rights prevails. (29 U.S.C. § 2651(b).) The major difference is that federal law treats pregnancy disability (note: not pregnancy not resulting in disability) as a qualifying disability under FMLA whereas under California law, there is a separate pregnancy disability leave law that provides for up to 4 months of unpaid leave in addition to the 12 weeks of CFRA leave for employees at companies with 5 or more employees. (You have the state-issued pamphlet on pregnancy disability leave is attached as Exhibit 3 to the Appendix.) Under the California pregnancy disability law, the employer cannot require the employee to use paid time off as part of her leave. Also, under federal law, the medical certification provided to the employer may contain “the appropriate medical facts within the knowledge of the health provider regarding the [serious health] condition.” As we have seen, CFRA does not require the employee to disclose the underlying condition. That means California employers may not use the leave certification form provided by the U.S. Department of Labor. CFRA, unlike FMLA, also provides leave for the care of a domestic partner. Finally, the remedies available to the employee for violation of the CFRA are substantially broader than the remedies available to employees for violation of the FMLA.
Are there any exemptions from the requirement that an employer reinstate an employee returning from leave to the same or a comparable position? Yes. Under both the FMLA and the CFRA, an employer may refuse to reinstate certain highly-paid employees. For this exemption to apply: (a) the employee must be salaried and among the highest paid top 10% of employees employed within 75 miles of the worksite where the employee is employed; (b) the refusal to reinstate the employee is necessary to prevent substantial and grevous economic injury to the employer’s business. That means injury that is more than an inconvience but less than a threat to the exsistance of the company; and (c) the employer must notify the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary.

Please access and review this CFRA/FMLA comparison chart from the Department of Fair Employment & Housing:

https://www.dfeh.ca.gov/employment/family-care-medical-leave-guide/

Question 31

HANDOUT 2 - Kin Care

Answer 31

Kin Care:
What does it do?
Found at California Labor Code section 233, kin care allows employees to use up to half of their accrued sick leave to care for a sick family member, including child, parent, spouse, or registered domestic partne

Who is covered?
all California employers that provide sick leave are covered by the law, which is enforced by the California Division of Labor Standards Enforcement.

What effect does it have on time available under CFRA?
It does not extend the time for leave available under CFRA.

What if an employer designates all leave as paid time off rather than distinguishing between sick leave and vacation leave?
All of the time in a “paid time off” bank, through which an employer does not distinguish between sick leave and vacation leave, is treated as sick leave for purposes of this law.

What is the bottom line effect of this law?
The effect of this law is to allow, but not require, an employee caring for the illness of a relative to receive sick pay, which ordinarily would be available only for his or her own illness.

Question 32

HANDOUT 3 - Paid Sick leave Law

Answer 32

PAID SICK LEAVE LAW

Basic rights under paid sick leave law: The California Paid Sick Leave Law entitles employees of employers of any size to 5 days or 40 hours of paid sick leave in any calendar year. The employee may take the leave in increments of as small as 2 hours on any given day. An employer generally must allow the employee to carry over unused sick days from one year to the next, though the employer may limit its employees to taking 5 days or 40 hours of sick leave in any calendar year and may cap the accrued leave in the employee’s bank to 10 days or 48 hours.

Eligibility for paid sick leave: All employees of any employer of any size who work at least 30 or more days in any given year in California and work for the employer at least 90 days are entitled to the paid leave. The law applies to employees who reside and normally work in other states, but who do at least 30 days of work in California. The right to paid sick leave kicks in on the 90th day of an employee’s employment to allow for a probationary period of sorts before the right to paid sick leave kicks in. The employer also may give the employee the lump sum right to take the paid sick days upon the employee’s first day of employment, in which case the employer need not allow the employee to carry over unused sick leave from one year to the next.

Use of paid sick leave to care for others: The use of paid sick leave under the law is not limited to an employee’s own illness. The right extends to leave to care for the same group of individuals covered by CFRA, including a designated person as defined by CFRA.

Forfeiture of unused sick leave at time of termination: An employee is not entitled to be paid for the value of unused sick leave when the employee leaves his or her job. California law requires employers to compensate departing employees for the value of accrued, but unused, vacation time or PTO. The employee may use such time for any purpose and the value of such time is considered a form of deferred compensation to the employee. Sick leave, however, is different. Sick leave is provided for the specific purpose of allowing the employee time to get well or, in the case of the care of an ailing relative, to help someone else get well. If an employee is fortunate enough not to need such leave, there is no need for the employer to pay the departing employee for his or her good fortune in having been healthy.

Retaliation prohibited: Under the new law, an employer may not fire an employee for using paid sick leave. The new law specifically prohibits an employer from taking anyadverse action against an employee who exercises his or her rights to take leave under the new law.

Minimum or Maximum?: The new law sets a minimum amount of paid sick days an employer must provide. An employer may exceed the stated minimum as long as the employer’s policy includes other protections of the law, such as extending the right to take sick to leave for a family member and the right to carry over sick leave unless the sick leave is given in a lump sum at the beginning of the year.

Significance of the law: Most people are familiar with the federal and state family leave laws, which for over 20 years have required employers to provide job-protected leave to their employees to care for themselves or loved ones. But that kind of leave is unpaid. California became only the second state to require employers to provide its employees with paid sick leave. Connecticut was the first state in the nation to enact such a law. The new law affects millions of California workers and is broader in scope than the Connecticut law. It is not clear if this will become a national trend. It is interesting to note that California’s unpaid family leave law was enacted two years before the federal government enacted the Family Medical Leave Act.

Question 33

HANDOUT 4: BEREAVEMENT LEAVE

Answer 33

California employers with 5 or more employees must allow employees with at least 30days on the job at least 5 days of unpaid, job-protected leave to grieve the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.

Bereavement leave is in addition to the 12 weeks of unpaid, job-protected leave employers must offer employees to care for themselves and others under CFRA.

Employees need not take their bereavement leave on consecutive days.

The new law does not require that this additional leave time be paid, “except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee” for this purpose.

Upon the employer’s request, an employee must provide documentation of the death of the family member within 30 days of the first day of the leave, such as a obituary or death certificate.

Question 34

HANDOUT 5: CALIFORNIA CHAMBER OF COMMERCE TIPS ON HANDLING REQUESTS FOR LEAVE

Answer 34

The California Chamber of Commerce has provided the following advice for managers considering an employee’s request for leave to care for his seriously ill mother:

Step 1: What does the law say? Are you a large enough employer to fall under the applicable leave law? Has the employee worked for you long enough to qualify for leave? Grant the leave if the employee meets the legal requirements. If the law does not require you to grant the leave, go to step 2 and ask yourself:

Step 2: What does your employee handbook say? Do your company’s leave policies go beyond what the law requires? Does the requesting employee qualify for leave under those more generous company leave policies? If the company’s written policies do not require you to grant to the leave, go to step 3 and ask yourself:

Step 3: What is your company’s past practice? If you’ve granted such leaves before, how, if at all, is this request different? Could the employee claim discrimination if his leave request is denied? The key is to treat similar employees similarly unless there is a valid business reason for treating them differently.

The Chamber concludes: “If nothing in the law, your policies or your past practices indicates that you must grant the request, then you are free to grant or deny it at your company’s discretion. Keep in mind, however, that this decision will set a precedent for future requests.”

Question 35

(SKIT): The Case of When Johnny Comes Flying Home

Answer 35

Context: It is December 8, 2003 at 6:30 p.m. On stage are two tables, representing dinner tables at two different homes. One table is in the home of Michael Serricchio, a financial advisor at Wachovia. The other table is in the home of Nancy Gibbons, the employee leaves and benefits manager at Wachovia Securities. Both are just arriving home from work. The parallel conversations that Michael and Nancy have with their spouses, Connie Serricchio and Norman Gibbons, take place at the same time, but there is, of course, no interaction between the two couples. Connie and Norman are on stage awaiting the arrival of their spouses

Legal Question: Whether (ER name) USERRA law was violated in how it handled Michael’s return?

First thought: Yes

Final thought: Yes

Outcome: Yes (violation). Damages paid and to be reinstated with a normal package. 1.6 million paid to him. They appealed and lost.

Discussion:
2000 a month and opportunity to cold call
Unsatisfying to him because he was making more prior
Rejected offer because
Smudge on his brokers license
YES
Violated because had issues with license they caused
He is not receiving what he’s needed despite his seniority
ER could have given his client to other workers instead of spreading them out
Giving him more money, give him back clients and gave him time to adjust
Shouldn’t have dispersed his clients
He’s starting over (escalator)
They were reckless with his clients - he had less people (none) to come back to and they could have prevented this
Returned with no seniority
Went from 80K to 2K a month
NO
Not violated because
Escalator principle is on quiz

Question 36

HANDOUT 5: USSERA

Answer 36

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

• Applies to employers of any size and applies for up to 5 years of cumulative military service.
• Generally, an employer may not require a servicemember to use earned vacation to perform military service, but the servicemember has the right to use such earned vacation time.
• After a period of service of 31-180 days, the person must submit a written or verbal application for reemployment with the employer not later than 14 days after the completion of the period of service unless such a time frame is impossible or unreasonable through no fault of the employee. In that case, the employee must submit the application ASAP.
• After a period of service of 181 days or more, the person must submit an application for reemployment not later than 90 days after the completion of the period of service. These deadlines can be extended for up to two years for periods of hospitalization or convalescence for service-related injuries.
• Under this law, a returning servicemember who has been honorably discharged is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that he or she would have attained if the person had remained contiously employed.
• According to the regulations issued under that law, that means that the employee is entitled to reemployment in the job position that he or she would have attained with reasonablecertainty if not for the absence due to uniformed service,” i.e., reemploying the service member in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites that he or she would have attained if not for the period of service. That may result in a position that is higher or lower than the one the servicemember held before going on military leave. This is called the escalator principle.
• If the person is not qualified to perform the position it is reasonably certain he would have attained had he been continuously employed, he is entitled to be employed in the position he held before leaving for military duty or a position of like seniority status, , or pay.
• A person who is reemployed may not be discharged except for cause: (1) within one year if the pre-reemployment period of such military service is more than 180 days; or (2) within 180 days if the period of pre-reemployment military service is between 31-180 days.
• The law prohibits discrimination or retaliation against a person who seeks to enforce the rights of themselves or another person under USERRA, or who testifies or assists in an investigation under USERRA.
• A court may award backpay and reinstatement under USERRA. A Court may also award liquidated damages under USERRA by doubling the award of back pay if it is found that the employer violated this law willfully. A violation of this law is willfull if the employer either knew or showed wreckless disregard for the matter of whether its conduct was prohibited by the statute.
• An indivdual as well as a company or other employer may be held liable for violations of USERRA and held perosnally responsible for back pay and subject to a court order stopping the offending indivdual (supervisors, HR depts, sexual harassment) from implementing a discriminatory policy, even if the actions actions arose from his or her duties.

Question 37

HANDOUT 6: OTHER MILITARY LEAVE LAWS

Answer 37

Other Military Leave Laws
Under 2008 amendments to the federal Family Medical Leave Act, employers must allow employees to take up to 26 weeks of leave to care for a spouse, son, daughter, parent, or nearest blood relative who is a wounded member of the armed services.

The spouse of a member of the military who is on leave from deployement must be given 10 days unpaid leave of absence from his or her employer if the employer employs 25 or more people. The law requires the employee to give the employer notice of intent to take advantage of the leave within two business days of receiving official notice that his or her spouse will be deployed. The legislature found the law had to go into effect immediately to assure that families affected by service in Iraq or Afghanistan could spend time together. (Military and Veterans Code §395.10.)

Other Leave Laws

Organ and Bone Marrow Donor Leave
Employers with 15 or more employees must give their employees up to 30 days of paid leave in any calendar year for the purposes of making an organ donation and up to 5 days of paid leave for the purposes of making a bone marrow donation. The donation need not be for a family member; it may for anyone. In addition, the right to this leave is in addition to the unpaid leave time to which a person is entitled under the family leave law. In other words, a person who takes the 30 days paid leave provided for organ donations under this section is also entitled to the 12 weeks of job-protected unpaid leave under the family leave law.

Voting
If a voter does not have sufficient time outside of working hours to vote at a state-wide election, an employee must be given up to 2 hours of paid leave at either the beginning or the end of the regular work shift, whichever allows the most free time for voting and least time off from the regular working shift, unless otherwise mutually agreed. (Cal. Elections Code §14000, et seq.)

B. Jury Duty and Other Court Duty
Under California Labor section 230:
a) An employer may not discharge or in any manner discriminate against an employee for taking time off to serve as a juror if the employee, prior to taking the time off, gives reaosnable notice to the employer that he or she is required to serve.

(b) An employer may not discharge or in any manner discriminate or retaliate against an employee, including, but not limited to, an employee who is a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.

(c) An employer may not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, a restraining order or other injunctive relief, to help ensure the health, safety, or welfare of the victim
or his or her child.

(d) (1) As a condition of taking time off the employee shall give the employer reasonable advance notice of the employee’s intention to take time off, unless
the advance notice is not feasible.

C. Time Off for School Activities

An employer with 25 or more employees at the same location must allow a parent or custodial guardian to take up to 40 hours per year, not to exceed 8 hours in any calendar month, to participate in the activities of the school if the employee, prior to taking the time off, gives reasonable notice to the employer of the planned absence