QUESTION & ANSWER APRIL 2016

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1 QUESTION & ANSWER APRIL 2016 CALIFORNIA FAMILY LEAVE LAW WEBINAR QUESTIONS AND ANSWERS Below is some information provided in response to the questions asked as part of the chat feature of our webinar on April 27, 2016, California Family Leave Law: Are CFRA and FMLA Finally Playing in Unison? There were a number of questions from school district personnel regarding compliance with AB 375. Because that law was not covered in the webinar, we will issue a separate Briefing addressing AB 375. Please also note that Keenan is not a law firm and the answers provided below are provided for educational purposes only and are not legal advice. If you have a specific situation or question regarding a specific employee, you are advised to seek counsel from your own attorney or leave management provider. Keenan does not provide those services. The webinar can be downloaded from the On Demand section at 1. Does the Paid Sick Leave law require an employer to allow someone to accrue 6 days in addition to the sick time the employer already offers to its employee? No, not necessarily. The law allows an employer to use its existing paid sick or PTO policy if its terms comply with the law. For more details, please see Keenan s September 2014 Briefing on the subject, CALIFORNIA HEALTHY WORKPLACES HEALTHY FAMILIES ACT OF 2014 FAQ at 2. An employee has a chronic illness and exhausts 100% pay, then goes into 50% pay. Can they still take time off sick under paid FMLA and still use 50% without having to provide doctors notes? It is incumbent upon the employer to designate a leave as FMLA/CFRA qualifying. In the example given, the employer is not required to allow the employee to exhaust sick time, vacation time or disability pay before designating the leave as FMLA/CFRA qualifying unless there is a leave policy or collective bargaining agreement that requires it. 3. Is there a qualifying period for PFL? Eligibility for PFL benefits is not based on a specific number of days or months worked. A person making a claim for PFL must complete and submit a claim form within 49 days of the first day of his or her leave. A claimant must have earned at least $300 from which SDI deductions were withheld during a previous base period. The wages an individual was paid approximately 5 to 18 month before the claim begins are included in the base period Keenan & Associates License No Innovative Solutions. Enduring Principles.

2 4. Paid Family Leave and Pregnancy Disability Leave only available to an employee who pays into SDI? Can an employee apply if for these benefits if he/she previously paid into SDI prior to employment with a school? See the answer to question #3, above. EDD uses a look back period to determine eligibility and benefits that may include participation under a recent previous employer, even if SDI/PFL is not available with the current employer. 5. How do you differentiate CFRA and FMLA if you are running concurrently? We run concurrently but we require employees to use the leave they have accrued. If you are running two types of leave concurrently, you should follow the law that provides the greatest benefit to the employee. In most situations, that will be CFRA. With regard to pay, an employee can use accrued PTO or sick time while he or she is on leave under either FMLA or CFRA. 6. Can you clarify the use of PTO during a CFRA leave? If CFRA leave is for the employee's own serious health condition, the employee may elect, or the employer may require, the employee to use any accrued vacation time or other accumulated paid leave, including any accrued sick leave. Additionally, the employee may elect to use accrued sick leave (or PTO) for any other reason mutually agreed to by the employer. 7. Does Kin Care include significant other? The Kin Care statute allows an employee to take up to half of his or her annual accrual of sick time to care for a family member only. The definition of family member for the Kin Care law includes children, parents, spouses, or registered domestic partners, grandparents, grandchildren, and siblings. It does not include significant others that do not fit into one of those categories. 8. If we have less than 25 employees, does the Family School Partnership Act apply? No. It does not apply to employers with fewer than 25 employees in one location. 9. For the Family-School Partnership Act, do we require some type of proof that they are attending a school event for their child? The statute provides that the employer may require that the employee provide documentation from the school or licensed child care provider as proof that he or she engaged in child-related activities permitted by the law on a specific date and at a particular time. Documentation means whatever written verification of parental participation the school or licensed child care provider deems appropriate and reasonable Keenan & Associates License No Innovative Solutions. Enduring Principles.

3 10. When you state that an employer cannot require an employee to use their PTO while receiving PFL are you meaning we cannot require them to coordinate their PTO with state benefits? Correct. You cannot require an employee to use accrued sick time, vacation or PTO concurrently with any form of disability pay or Paid Family Leave. However, you can mutually agree to do so with the employee. 11. Just to clarify, does CFRA start AFTER the 6 weeks of maternity leave? CFRA does not cover disability due to pregnancy or childbirth. Those are covered by California s Pregnancy Disability Leave law which allows an employee to take up to 4 months of leave if she is disabled due to pregnancy or the birth of a child. With regard to childbirth, CFRA provides 12 weeks of protected leave to bond with a new child within the first year of that child s arrival in the family. That leave does not start until after the disability leave has ended. 12. FMLA and CFRA run concurrently except in leaves related to maternity? Yes. 13. If an employee requests FMLA/CFRA and wants to work from home, can the employer deny that? If an employee is working, then he or she is not on leave. However, it may be that what the employee is actually requesting is intermittent leave and a working from home accommodation for when he or she does work. This may or may not be something the employer can or should provide. The employer in this case would need to inquire further with the employee and consider other laws (like the Americans with Disabilities Act) that may affect the request. 14. Is PFL paid through SDI? What if someone doesn't pay into SDI, would it be unpaid or paid if they have the time? Paid Family Leave is paid through SDI. For employees of employers that don t participate in SDI, there may be employer-provided PTO that the employee elects to take. As stated above, if the leave is due to the employee s own serious health condition, the employer may require the employee to use paid time off concurrently with CFRA. 15. What is the FMLA rule regarding whether holidays are counted towards 12 weeks or not? Under both FMLA and CFRA, when a holiday falls during a week in which an employee is taking the full week of leave, the entire week is counted as FMLA/CFRA leave. However, when a holiday falls during a week when an employee is taking less than the full week of leave, the holiday is not counted as FMLA/CFRA leave, unless the employee was scheduled and expected to work on the holiday and used leave for that day. Additionally, if the employer s business activity has temporarily ceased and employees are generally not expected to report for work for one or more weeks (for instance, over the Christmas/New Year holidays, or for summer vacation) the days the employer s activities have ceased do not count against the employee s FMLA/CFRA leave entitlement Keenan & Associates License No Innovative Solutions. Enduring Principles.

4 16. If an employer permits an employee to use paid sick leave for his/her own medical leave need, is the employer also required to allow the employee to use paid sick leave to care for a family member under either FMLA or CFRA? California s Kin Care law requires all California employers to allow workers to use sick leave to care for a sick family member. Under this law, a worker may use half of the sick time they accrue during a year to care for a sick family member. 17. We are a small school district with fewer than 50 employees. Do these laws apply to us? FMLA and CFRA apply to all public agencies, regardless of size. California s Kin Care law applies to all public and private California employers, regardless of size. FSPA applies to employers with 25 or more employees in one location. The Pregnancy Disability Leave law covers all employers with five or more employees. Employees of public schools typically will not be eligible for either Paid Family Leave or state disability income payments during PDL, because they do not pay into SDI. 18. Does PDL end once doctor certifies mother no longer disabled? Yes. Four (4) months of leave is a maximum. 19. If an employee takes intermittent leave for a child s weekly doctor s visit, does the employer need to allow the employee to leave and bring the child to the doctor in an emergency? Generally, if the need for a leave is unforeseeable, the employee is required to give notice as soon as practicable. 20. PFL isn't a leave of absence, but a way to be paid. It doesn't provide return rights or job protection. IF EE is not CFRA eligible what type of LOA do you put them on? If the employee is not eligible for CFRA, then the employee may be eligible for other types of paid or unpaid leave under either her contract, her collective bargaining agreement, or your written leave policy. 21. Kin Care now includes taking leave for yourself now, correct? You can no longer separate sick leave and family sick leave, correct? Not exactly, the Kin Care law only covers time taken to care for a sick family member. California s sick leave law, enacted in 2015, requires California employers to allow employees to accrue and use a certain number of sick days per year which can be used for the diagnosis, care and prevention of an employee s or family member s health condition. The Kin Care law was updated to conform with the sick leave law, and applies to employers both covered by the sick leave law and not covered by the sick leave law. 22. Is there anything prohibiting an employee using their paid sick leave for a pregnancy at the end of their pregnancy leave rather than at the beginning if employer policy does not dictate when it can be taken? It depends on what kind of paid sick leave you are talking about. As an employer, you can coordinate with an employee the usage of vacation time. However, disability pay (either under SDI or under private 2016 Keenan & Associates License No Innovative Solutions. Enduring Principles.

5 disability insurance) can only apply to times when an employee was disabled. And paid family leave can only be used in the childbirth context for bonding. But an employee can take his or her 12 weeks of bonding time any time within the first 12 months after a new child enters the family so, conceivably, that could be the last 12 weeks of a new mother s leave time if you and she wish to do it that way. 23. Is there currently a 7 day waiting period for SDI? If so, will it change in January 2018 similar to PFL? There is also a 7-day waiting period for SDI. AB 908 will abolish the waiting period for PFL only as of January 1, Can you please go over any changes made to the qualifying requirements for FMLA/CFRA for an employee with less than 1 year employment service? Generally, an employee must have worked for the employer for 12 months, and have worked at least 1,250 hours in the last year to qualify for FMLA/CFRA leave. The new regulations state that an employee may qualify for CLRA while on a leave. For example, an employee has worked 50 weeks for the same employer and is two weeks from her 12-month anniversary when she goes out on leave for her own serious health condition. She takes the first two weeks as sick leave. As of the third week, however, she will have been employed for 12 months, so she will at that point be eligible for FMLA/CFRA, and her leave can start on the date she qualifies. However, she still must have met the 1,250 hours requirement before she went on the leave. 25. How are school employees, who only work for 10 months of the year, eligible for FMLA/CFRA? If you hired the employee at least 12 months ago and they have worked the 1,250 hours in the last 12 months, then they meet the qualifications for time in service for FMLA and CFRA. 26. Are there any standard boilerplate forms to request "serious health conditions" a health care provider when their original reply is short and ambiguous? No. If a certification is incomplete or insufficient, the law requires the employer to specify in writing the information that is lacking and give the employee 7 calendar days to provide additional information. 27. When did the family-school partnership act become effective? January 1, What is considered a "serious health condition?" Under both the FMLA and CFRA, a serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves either inpatient care (in a hospital, hospice, or residential medical care facility) or continuing treatment by a health care provider Keenan & Associates License No Innovative Solutions. Enduring Principles.

6 29. Would leave to handle the legal aspects of an emergency guardianship for a grandchild be a family leave or would kin care be used for this? It might be a family leave under the FMLA, if the reason for the emergency guardianship is because the military deployment of one or both of the child s parents. The Kin Care law generally only applies to allow an employee to take sick time to care for a sick family member, not to attend to legal needs. Whether and what kind of paid or unpaid leave an employee can take in such a situation will also depend on his or her collective bargaining agreement and/or your written leave policy. 30. What would we send out to employees within five days? Once the employer has enough information to determine whether the leave is for an FMLA-qualifying reason, the employer must provide a designation notice informing the employee whether the leave will be counted as FMLA leave within 5 business days. 31. If an employee calls off for kin care, must the employee state they are out for kin care at the time they call off or can they come back later and say it was kin care? An employer should follow a uniform policy when it comes to notices for sick leave. An employer s absence policy cannot impose greater consequences on sick leave used for kin care than on sick leave generally. 32. For the certification of healthcare provider, can we use the FMLA form by the DOL when employees are going on PDL or do we need to use the FEHA form? You may use the DOL FMLA form when an employee is going on PDL. 33. The definition of family now includes additional family members under the new Paid Sick Leave law, will you please confirm that this has not changed the definition of family under CFRA? That is correct. The definition of family member under CFRA/FMLA and paid sick leave/kin care is as follows: CFRA/FMLA Spouse Registered domestic partner (CFRA only) Child (incl. adopted, foster, or in loco parentis) Parent (incl. adopted, foster, or in loco parentis) Paid Sick Leave law/kin Care Law Spouse Registered domestic partner Child (incl. adopted, foster, or in loco parentis) Parent (incl. adopted, foster, or in loco parentis) Sibling Grandparent Grandchild 2016 Keenan & Associates License No Innovative Solutions. Enduring Principles.

7 34. What is the FMLA rule regarding the calculation of hours when employee has a variable workweek? You are supposed to use the employee s normal workweek. If the employee s schedule varies to such an extent that employer can t determine a normal workweek, use the weekly average of hours scheduled over the prior 12 months. 35. Do PDL, FMLA and CFRA run concurrently or separately? PDL and FMLA run concurrently. FMLA and CFRA can run concurrently. PDL and CFRA cannot run concurrently. 36. What happens if an employee s physician does not submit the required updates WH380E either at the fault of the employee or physician? Under FMLA regulations, an employee must provide recertification within the time requested by the employer (which must allow at least 15 calendar days after the request) or as soon as practicable under the particular facts and circumstances. If an employee fails to provide a recertification within a reasonable time under the particular facts and circumstances, then the employer may deny continuation of the FMLA leave protections until the employee produces a sufficient recertification. If the employee never produces the recertification, the leave is not FMLA leave. 37. If the disability continues for pregnancy related reasons beyond 4 months, can the employer run the disability against CFRA? Yes. If PDL is exhausted and the employee s physician determines that the employee s disability requires additional time off before the child is born, an employer may (but is not required to) allow the employee to use CFRA leave during her disability. Any remaining CFRA time may still be taken as bonding leave when she is no longer disabled. Moreover, once an employee has exhausted her pregnancy disability leave, she still might be entitled to reasonable disability accommodations, including additional time off, under FEHA. 38. Does CFRA start at time of birth? CFRA starts when the employee is no longer disabled due to pregnancy or childbirth. That is typically 6 weeks after an uneventful birth, or 8 weeks after a cesarean. 39. Are teachers entitled to use CFRA even if they do not work 1250 hours in a 12-month period (based on a 6-hour work day)? Under FMLA regulations, an employer must be able to clearly demonstrate that full-time teachers of an elementary or secondary school system, or institution of higher education, or other educational establishment or institution (who often work outside the classroom or at their homes) did not work 1,250 hours during the previous 12 months in order to claim that the teachers are not eligible for FMLA leave. These rules do not apply to CFRA, however. A full-time teacher working a 7.5 hour day for 182 days will have 1,320 hours of service in a calendar year, but some part-time teachers and other staff will find it more 2016 Keenan & Associates License No Innovative Solutions. Enduring Principles.

8 difficult to meet the 1,250 hours requirement. In 2014, the California Teachers Association (CTA) sponsored legislation that would revise the CFRA rules to allow school employees to qualify for CFRA with at least 60% of the hours of service of a full-time school employee. That bill was held in Appropriations and did not go on to passage. That said, you must still look to your leave policy and CBA to see if your employees qualify for leave at your institution under any particular set of circumstances. 40. In reference to FSPA, what hours would count, i.e. during school hours or work hours. child has high school graduation at 5 pm and employee wants to leave at 3 to make it on time, would that fall under FSPA. Yes. It can be an after-school event. 41. For the Family School Partnership Act. Is the 40 hours per child? No. It is 40 hours per employee. 42. Does FMLA and CFRA apply to sub employees too? Yes, if they otherwise qualify. 43. Could you additionally address the comment made about employers needing to grant intermittent leave even if there is no medical treatment needed? Could you give examples? This most often comes up in the context of chronic diseases. An employee may have a chronic disease like Crohn s or Multiple Sclerosis. That employee is being treated for the condition by a doctor. The employee may need to take time off from work due to a flare in symptoms that does not necessitate a visit to the doctor. 44. If an employee submits an intermittent leave certification but has no end date to it, when can we ask for a new certification? Under FMLA, you can ask for new certification no more than once every 30 days for the employee s own health condition. However, under CFRA, the employer may only ask for recertification of the employee s medical condition if the original certification expires, and lifetime certifications do not expire. Unfortunately for California employers, the CFRA rules will cover those leaves taken simultaneously under FMLA/CFRA. 45. If the employee has been off work for illness more than 5 days which is considered a leave at our company, should we still try and get the leave paperwork or just count it against sick time? That is your choice as an employer. However, whatever you choose, you must apply the rules uniformly with regard to all employees. This is one of the reasons that it is advisable to have a written leave policy Keenan & Associates License No Innovative Solutions. Enduring Principles.

9 46. When an employee is out on FMLA/CFRA/PDL/PFL do we have to make them use their PTO with SDI? Or can they have that option to use their PTO to pay for benefits only? If the employee is on any form of disability payment (including SDI and PFL) then it is not unpaid leave and the employer cannot make her use her accrued sick time, vacation or PTO. However, if the employee chooses to do so, you can allow them to have employer-provided leave run concurrently. And again, with regard to benefit payments, you may mutually agree to any arrangement with the employee. 47. All that paid time for school activities, etc. would be deducted employee s allowances like PN or Vacation time correct? Under FSPA, yes if that time is available. If the employee has no time on the books, he or she is still entitled by law to take up to 40 hours of unpaid time per year. 48. If health insurance is cancelled, does the employer have to re-enroll the employee upon return to work even if the employee hasn't turned in new enrollment forms? Also, if the employee returns in the middle of the month, do they have to be re-enrolled mid-month even if our policy is to wait until the first of the following month? Yes. They must be restored to coverage upon return to work. You should follow up with your insurance carrier to see how they effectuate that coverage mid-month. 49. Regarding the restoring benefits for employees when they return. Could we have them wait until our open enrollment if we cancel their benefits during the leave for non payment? No. 50. A hypothetical new employee is hired, starts work, and 2 weeks later has a baby. Can she take maternity leave? Here s what she is entitled to by law: Pregnancy Disability Leave Up to 4 months of leave for the time that she is disabled by pregnancy, birth or conditions related to pregnancy and birth. If she is eligible under the state disability system or an alternative disability plan, then she will be entitled to partial wage replacement during that time. Whatever the applicable CBA/employee handbook/leave policy entitles her to, if it is more generous than the law allows. Should you have any further questions, please contact your Keenan Account Manager. Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients business activities Keenan & Associates License No Innovative Solutions. Enduring Principles.