California Leaves and Reasonable Accommodation: A Light in the Storm. Presented by: Gaye E. Hertan (Century City) Debbie L. Caplan (Century City)

Transcription

1 California Leaves and Reasonable Accommodation: A Light in the Storm Presented by: Gaye E. Hertan (Century City) Debbie L. Caplan (Century City)

2 OUR PRESENTERS Gaye Hertan Debbie Caplan

3 OVERVIEW FOCUS ON EMPLOYEE MEDICAL LEAVE Basics of Leave Laws and Interplay Between Leave Laws (FMLA/CFRA, PDL, W/C) Focus on 4 Key Areas: Eligibility Managing the Certification Process Managing Intermittent Leave Interactive Process and Accommodation Obligations after other leave is exhausted. New Leave Law for 2011

4 LEAVE LAW BASICS FMLA / CFRA

5 FMLA / CFRA REASONS FOR LEAVE Employee Medical Family Care Birth Placement FMLA ONLY: Qualifying Exigency Injured Servicemember

6 FMLA / CFRA Run Concurrently, EXCEPT: Pregnancy-Related Disability Care for Registered Domestic Partner with Serious Health Condition Qualifying Exigency Injured Servicemember beyond 12 weeks or to care for individual for whom employee is next of kin

7 FMLA/CFRA Serious Health Condition 1. In-Patient Care Overnight stay in a hospital, hospice or residential care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care.

8 FMLA/CFRA Serious Health Condition 2. Incapacity Plus Treatment Period of incapacity of more than 3 consecutive calendar days PLUS Treatment by a health care provider on at least 2 occasions OR Treatment by a HCP on at least 1 occasion that results in a regimen of continuing treatment.

9 *INTERPLAY * Incapacity Plus Treatment FMLA 1. Incapacity must be for more than 3 consecutive full calendar days 2. The treatment by a health care provider must be in person. 3. Must see HCP within 7 days of first incapacity (first or only visit). 4. Must visit the HCP 2 times within 30 days of first incapacity, unless extenuating circumstances exist that prevent a follow-up visit within 30 days. CFRA 1. Incapacity must be for more than 3 consecutive calendar days (does not have to be full days.) 2. No in person requirement 3. No requirement that HCP be seen within 7 days of first incapacity. 4. No requirement that treatment be 2 times within 30 days of first incapacity.

10 FMLA/CFRA Serious Health Condition 3. Pregnancy Any period of incapacity due to pregnancy or for prenatal care. (EE s own pregnancy covered by FMLA only -- CFRA does not cover EE s disability due to pregnancy, childbirth, or related medical condition)

11 FMLA/CFRA Serious Health Condition 4. Chronic Conditions Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. Requires periodic visits for treatment by a health care provider or nurse under direct supervision of a health care provider Continues over an extended period of time May be episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, and migraine headaches)

12 *INTERPLAY * Chronic Conditions FMLA Employee must see HCP at least 2 times per year. CFRA No specification of how many times per year employee must see HCP.

13 FMLA/CFRA Serious Health Condition 5. Permanent/Long Term Conditions Requiring Supervision Any period of incapacity which is permanent or long-term for which treatment may not be effective. Continuing supervision, but not active treatment, by HCP is required. Examples include Alzheimer s, a severe stroke or the terminal stages of a disease.

14 FMLA/CFRA Serious Health Condition 6. Multiple Treatments (Non-Chronic Conditions) Any period of absence to receive multiple treatments by HCP for restorative surgery after an accident or injury, or for a condition that likely would result in a period of incapacity of more than three consecutive calendar days if left untreated. Examples include chemotherapy for cancer, physical therapy for severe arthritis and dialysis for kidney disease.

15 LEAVE LAW BASICS PDL

16 Basic Rights Under PDL Up to 4 months of leave for disability caused by pregnancy, childbirth or a related medical condition. * Remember disability can be before birth (including prenatal appointments and morning sickness), after birth, or due to loss of pregnancy. Reinstatement to the same or comparable position. Duty to provide reasonable accommodation upon advice of HCP. Obligation to transfer pregnant employee upon request to a less hazardous or strenuous position when medically advisable.

17 *INTERPLAY * FMLA/CFRA/PDLL 0 12 wks 4 mo. 12 more wks FMLA 12 weeks PDL 4 months During pregnancy-related disability, FMLA and PDL run concurrently, but not CFRA, which excludes employee s pregnancy-related disability from the definition of a serious health condition. CFRA 12 weeks After pregnancy-related disability, employee is entitled to up to 12 additional weeks under CFRA to bond with baby or for any other qualifying reason.

18 LEAVE LAW BASICS WORKERS COMP

19 W/C No specific time limits regarding the amount of time off available. CA Labor Code section 132a imposes certain standards of conduct on employers with respect to the termination and reinstatement of industrially injured workers.

20 *INTERPLAY * W/C & FMLA/CFRA & FEHA/ADA W/C leaves should almost always be designated as FMLA/CFRA leave because the industrial injury usually constitutes a serious health condition. If the employee exhausts FMLA/CFRA leave, but is still unable to return to work, the leave generally must continue beyond the 12 weeks as W/C leave (unless an exception applies). When an employee with a W/C injury is released to return to work, the employer must comply with FEHA s interactive process obligations and attempt to reasonably accommodate any work restrictions/limitations.

21 4 Key Areas to Managing Leaves Eligibility Managing the Certification Process Managing Intermittent Leave Interactive Process and Accommodation obligations after other leave is exhausted

22 ELIGIBILITY FMLA/CFRA 12 months 1250 hours 50 employees within 75 miles PDL ER has 5 or more employees in CA No minimum length of employment/hours worked requirement W/C Unable to work due to workplace injury or illness

23 ELIGIBILITY Employees can become eligible for FMLA/CFRA leave while they are out on leave!

24 MEDICAL CERTIFICATION PROCESS FORMS What form? Can you require a particular form? What if employee refuses or fails to provide?

25 MEDICAL CERTIFICATION PROCESS 2/1/11 Sufficiency of Medical Certification To Whom It Concerns: I treated Joe Smith today due to chronic depression. He is unable to work through 2/7/11. Return to work without restrictions on 2/8/11. Dr. Whoever.

26 MEDICAL CERTIFICATION PROCESS Clarification / Authentication

27 INTERMITTENT / REDUCED SCHEDULE LEAVE FMLA/CFRA Absolute entitlement if medically necessary Transfer if foreseeable based on planned medical treatment to alternative position, with equivalent pay and benefits if it better accommodates the leave schedule Birth/placement under CFRA: minimum 2 week increments except on 2 occasions less than 2 weeks PDL Absolute entitlement if medically advisable FEHA May be required as a reasonable accommodation

28 TIPS FOR MANAGING INTERMITTENT / REDUCED SCHEDULE LEAVES Ensure leave use is consistent with medical certification Require employees to notify employer every time they are using intermittent leave Document what employee says Track usage Require updated medical certification when appropriate

29 ADMINISTRATIVE BUSINESS CLE CODE

30 Leave Beyond FMLA/CFRA/PDL What happens if employees exhaust all available leave under FMLA, CFRA, and/or PDL, but still need additional leave for their own medical issue? YOU CAN FIRE THEM NOW, RIGHT?

31 Leave Beyond FMLA/CFRA/PDL

32 Leave Beyond FMLA/CFRA/PDL Must consider additional leave as a reasonable accommodation and engage in interactive process.

33 What is a Disability? FEDERAL (ADA) Impairment that substantially limits performance of a major life activity. CALIFORNIA (FEHA) Impairment that limits performance of a major life activity.

34 Leave Beyond FMLA/CFRA/PDL Why not terminate and/or fill the position? Undue hardship is a high legal standard to meet.

35 Leave Beyond FMLA/CFRA/PDL HYPOTHETICAL Lou Pole and the Seemingly Never-Ending Leave

36 Lou Pole and the Seemingly Never-Ending Leave Lou Pole has been off work for 12 weeks for back surgery (covered by FMLA/CFRA) and is expected back Monday. Lou tells Sue the HR Rep that his doctor is putting him off for 4 more weeks. Isn t Job Protected Leave Over?

37 Interactive Process Log Employee Name: Lou Pole Date Comments/Notes Follow Up Date? Completed By

38 Lou Pole and the Seemingly Never-Ending Leave Lou does not call and Sue has not received his doctor s note. What should Sue do?

39 Lou Pole and the Seemingly Never-Ending Leave What if Lou s doctor said Lou actually needs 6 more months of leave? OK to terminate now?

40 Lou Pole and the Seemingly Never-Ending Leave What if Lou requests another 4 week leave extension the day before he is due back to work? OK to terminate now?

41 Lou Pole and the Seemingly Never-Ending Leave What if pattern develops with 4-week extensions requested month after month? OK to terminate now?

42 Lou Pole and the Seemingly Never-Ending Leave After 6 months of leave extensions, Lou submits his fitness for duty note with the following work restrictions: No prolonged sitting Needs to stand up and stretch once per hour Needs to attend weekly physical therapy appointments. What should Sue do?

43 Lou Pole and the Seemingly Never-Ending Leave WHAT ARE ESSENTIAL JOB FUNCTIONS? The fundamental job duties of the position (as opposed to marginal functions) A job duty may be fundamental/essential if: - It is the reason the position exists - Only a limited # of employees can perform it - It is highly specialized - Employee is hired to perform that task based on expertise / experience /ability.

44 Lou Pole and the Seemingly Never-Ending Leave EVIDENCE OF WHETHER A JOB FUNCTION IS ESSENTIAL: - Employer s judgment - Written job descriptions - Amount of time on the job spent performing the function - Consequences of not requiring incumbent to perform the functions - Work experience of prior incumbents - Current work experience of incumbents in similar jobs

45 Lou Pole and the Seemingly Never-Ending Leave After 6 months of leave extensions, Lou submits his fitness for duty note with the following work restrictions: No prolonged sitting Needs to stand up and stretch once per hour Needs to attend weekly physical therapy appointments. What should Sue do?

46 Lou Pole and the Seemingly Never-Ending Leave EXAMPLES OF REASONABLE ACCOMMODATION: - Making existing facilities readily accessible - Job restructuring (as to non-essential duties) - Part-time or modified work schedules - Special equipment or devices - Adjust examinations, training materials, policies, schedules - Provide qualified readers or interpreters

47 Lou Pole and the Seemingly Never-Ending Leave EXAMPLES OF WHAT IS NOT A REASONABLE ACCOMMODATION: - Personal use items (eyeglasses, hearing aids not designed for the job, etc.) - Employee s personal preference when employer has offered effective accommodation (but remember to consider their preference) - Eliminating essential job functions - Displacing another employee to transfer disabled employee

48 Lou Pole and the Seemingly Never-Ending Leave KEY POINTS FOR INTERACTIVE PROCESS Be Prepared (job descriptions, protocols) Document, document, document!!! Consider all possible accommodations, but give special consideration to employee preference. Try, try again! Don t overreach

49 Other California Leaves / Accommodation Domestic Violence Sexual Assault Drug or Alcohol Rehab Family Military Leave Jury Duty Witness Duty Kin Care Lactation Accommodation Literacy Assistance Military Leave School Activities Leave Suspended Child Victims Violent / Serious Crime Volunteer Firefighter Training Voluntary Firefighter & Emergency Rescue Voting Leave Civil Air Patrol Leave (1/1/2010) PAID Organ and Bone Marrow Donor Leave (1/1/2011)

50 PAID Organ and Bone Marrow Donor Leave Covered Employer: Employers with 15 or more employees Eligibility: Employed for at least 90 days. Amount / Purpose of Leave: Bone Marrow Donation: 5 days in any one-year period. Organ Donation: 30 days in any one-year period. Employer may require use of paid sick or vacation time as follows: Bone Marrow: 5 days Organ Donation: 2 weeks

51 California Leaves and Reasonable Accommodation: A Light in the Storm Presented by: Gaye E. Hertan (Century City) Debbie L. Caplan (Century City)