When it comes to explaining California’s complicated leave rules, a picture can be worth a thousand words.
That’s why Joyce Irby, the human resources director for a high-tech firm in the Silicon Valley, keeps a whiteboard hanging in her office and a stash of multicolored markers on hand. The go-to person for pregnant employees and others wondering how much leave they get, if it’s paid and whether they’ll be replaced if they stay away too long, Irby typically begins answering such questions by drawing a series of multicolored timelines.
“Usually, employees understand things better when they see the various leaves mapped out,” she said.
In California many different rules govern leave under many types of circumstances. The state’s leave policies, which are more generous than those of other states, have made it possible for countless employees to recover from their own serious illness or care for a sick family member without putting their job on the line. The downside is that keeping track of so many leave laws—whom they cover, when they apply, how long they last and whether they carry job protections—is confusing for everyone.
Understanding how the leave laws work is critical for both compliance and staffing. Below are common compliance pitfalls and strategies for avoiding them.
Was It Something I Said?
Employers have a legal right to ask about the basics of a medical leave request, said employment attorney Devora Lindeman of Greenwald Doherty. But probing too deeply, especially when employees are merely asking about their rights, can fuel a disability discrimination claim under the Americans with Disabilities Act (ADA) or California’s Fair Employment and Housing Act (FEHA).
“Employers can ask for enough information to determine that the employee has a medical condition for which they’re going to need leave,” Lindeman said.
Any decisions about the amount of time off an employee needs should be made by his or her doctor, not the boss, she said. And HR should warn line managers to keep opinions about an employee’s need for leave to themselves.
In the all-too-common event that an employee who is simply inquiring about leave reveals more about her health than necessary, managers should avoid asking about a prognosis and resist the urge to compare the employee’s condition with anyone else’s. That means not mentioning that your Aunt Mildred suffered from the same malady—and was up and walking in a week. Even innocent comments, including those intended to minimize an employee’s anxiety, are vulnerable to misinterpretation. Don’t rule out the possibility that the employee may view your innocent and well-meaning remark about Aunt Mildred as a veiled suggestion about how much leave is appropriate—and that it may fuel a leave-interference claim.
Is It Catching?
Less common, but far from rare, is the employee who comes to work sick because he doesn’t have leave or doesn’t want to use it. In such instances, employers have some leeway to send a worker home. But attorney Mark Schickman of Freeland Cooper & Foreman LLP in San Francisco urged employers to proceed with caution.
“Saying ‘Don’t come in while you are contagious’ is perfectly reasonable,” Schickman said.
Employers, however, must steer clear of actions that suggest they are unwilling to accommodate a sick employee, since that could put them at odds with the ADA or FEHA.
According to guidance the U.S. Equal Employment Opportunity Commission (EEOC) issued in 2009, in the midst of the H1N1 virus (swine flu) outbreak, employers are prohibited under federal anti-discrimination laws from making so-called disability-related inquiries and from requiring employees to undergo medical examinations except under extremely rare circumstances.
An inquiry is “disability-related” if it is likely to elicit information about a disability, according to the EEOC. For example, asking an individual if his immune system is compromised is a disability-related inquiry because a weak or compromised immune system can be closely associated with conditions such as cancer and HIV/AIDS. (Both of these illnesses qualify as disabilities.) But asking someone about symptoms of a cold or the seasonal flu is not likely to elicit information about a disability and thus would not be discriminatory.
Similarly, requiring an employee who shows symptoms of a cold or other minor illness to take leave probably would not violate disability laws, since such symptoms aren’t related to a disability.
Keeping Track of Legal Requirements
Figuring out a California worker’s exact leave entitlement is no easy task, given the many laws that can come into play. The California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA) often run concurrently, and mostly cover the same employees. But there are some significant exceptions.
California has a separate disability leave statute, the Pregnancy Disability Leave Law (PDLL). In the case of an employee who is absent due to a pregnancy-related disability, the PDLL, not the CFRA, applies. The PDLL provides up to four months of unpaid disability leave for pregnancy or childbirth.
PDLL leave can run simultaneously with FMLA leave but not with leave taken under the CFRA. Once the period of pregnancy disability ends, the employee (if eligible) is entitled to take 12 weeks of CFRA leave, to bond with the child.
Another key difference: The CFRA allows an employee to take time off to care for a same-sex domestic partner, but the FMLA doesn’t.
This means that even after a worker exhausts all her CFRA leave caring for her domestic partner, she still has all her FMLA leave to tap into during that same period if she gets sick and needs time off or needs time to care for a family member covered under the FMLA.
“This is one of those rare instances where the benefit extended to an employee with a domestic partner is better than the benefit for a traditional couple,” said Sarah Warbelow, director of state initiatives at the Human Rights Campaign, an advocacy group for the lesbian, gay, bisexual and transgender community, in Washington, D.C.
Bear in mind that leave rules, like other HR laws, are constantly evolving. Legislative proposals to expand the CFRA to cover employees caring for siblings, parents-in-law, grandparents and adult children crop up periodically and will likely be considered this year. If such a measure passed, employers would have to honor those requests, as well.
Including examples in your employee handbook and in management training that explain how various types of leave will apply under common scenarios may help prevent employee misunderstandings and help managers respond to leave requests appropriately.
Employers who wish to limit the amount of time an employee is out on protected leave may do so legally by running FMLA leave concurrently with other types of leave, including paid sick and vacation leave.
Many employers are uncomfortable starting the FMLA clock; they think it’s their employees’ responsibility to invoke those rights. But Schickman maintained that starting FMLA coverage as early as possible is a no-brainer.
“Otherwise, these employers find themselves giving employees even more leave because they didn’t trigger the FMLA early enough,” he said. “Why not send an employee the [FMLA] forms? If an employee doesn’t send them back and the leave is FMLA-eligible, an employer can invoke the law anyway.”
To avoid misunderstandings, employers should have clear policies that explain which types of leave run simultaneously under which circumstances.
Leave as an Accommodation
Employees who have exhausted their leave under the FMLA and California’s leave statutes may still have a right to time off under FEHA, which requires an employer to accommodate a worker with a disability. This accommodation may include providing additional unpaid leave unless that would constitute an “undue burden” on the employer.
For example, if an employer’s policy provides for two weeks of paid sick leave, but a disabled worker seeks a third week of leave based on his disability, the employer would likely have to accommodate that worker and provide an extra week of unpaid leave. After all, it would be difficult to prove that an extra week of time off constitutes an undue burden.
An employee experiencing a difficult pregnancy may also be entitled to more leave as an accommodation under FEHA, even after she has exhausted her four months of state-sanctioned pregnancy disability leave.
All employers should have a plan for managing workload when an unusually high number of workers go out on leave or when an employee needs to be out for more than a few weeks. If you don’t have such a plan, start developing one by establishing relationships with staffing firms and tapping other sources of temporary help. Also consider cross-training employees so they can fill in for one another in a pinch.
Rita Zeidner is a former HR Magazine writer.