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Paid Sick Leave: Newest Wrinkle in Coordinating Leave

By Allen Smith  8/25/2014
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Coordinating leave among leave laws often is called the Bermuda triangle of compliance, which has just become even more complicated with the appearance of paid sick leave ordinances in some cities, including two of the largest in California, where leave already is a six-headed monster that has now grown a seventh head. Paid sick leave ordinances are a growing trend that have been enacted in two states—California and Connecticut—and 12 cities: East Orange, N.J.; Eugene, Ore.; Jersey City, N.J.; New York City; Newark, N.J.; Passaic, N.J.; Paterson, N.J.; Portland, Ore.; San Diego; San Francisco; Seattle; and Washington, D.C.

“Administering sick leave has become more of a challenge as the result of the quilt work of laws, which appear to be similar, but have differing requirements,” William Perkins, an attorney with Seyfarth Shaw in New York City, noted. “The concept of a unified sick leave policy covering an employer’s multiple facilities has basically been eliminated for employers with facilities in these locations. Although many employers provide sick leave in excess of the mandatory requirements, the ordinances/statute establish requirements tilted in favor of employees and in many cases, deny employers of the right to question the use of the leave and exert absentee controls.”

“The categories of coverage may not necessarily match those under FMLA [Family and Medical Leave Act] leaves,” pointed out Christopher Olmsted, an attorney with Ogletree Deakins in San Diego. Under the FMLA, leaves due to the serious health condition of the employee, the employee’s spouse, son, daughter or parent all are covered. San Diego’s sick leave law also provides sick pay for absence related to the care of a grandparent, grandchild or sibling, Olmsted noted. So, certain uses of sick pay would not be protected FMLA leave and would not count against the employee’s FMLA leave entitlement.

Bermuda Triangle

Coordinating leave requirements is hard enough in areas where just the FMLA, Americans with Disabilities Act (ADA) and workers’ compensation laws apply. Intermittent leave in particular is confusing since it has such different requirements under the FMLA and ADA.

“While managers generally appreciate and respect employee’s rights to take FMLA leave on an intermittent basis, I think they are surprised that absences of such short duration can receive FMLA protection,” noted Frank Alvarez, an attorney with Jackson Lewis in White Plains, N.Y. “They also have trouble understanding why hardship is irrelevant to FMLA administration or why employers cannot take more aggressive steps to obtain medical documentation from health care providers to confirm that intermittent leave is not being abused.

“Some managers are confused because they have been told, quite correctly, that employees with disabilities are not qualified unless they can provide regular and predictable attendance. They have difficulty understanding how two federal laws covering the same medical condition and absence could impose such different requirements. Frankly, who could blame them? The lack of integration between FMLA and ADA is indefensible from a purely business or operational perspective,” Alvarez said.

And under FMLA regulations, Olmsted observed, “Where the employee is receiving workers’ compensation benefits during a leave of absence, the employer may not require the employee to use accrued paid leave. However, employers and employees may agree to have paid leave supplement workers’ compensation benefits, such as in the case where workers’ compensation only provides replacement income for two-thirds of an employee’s salary.”

An employee on workers’ compensation may decline the employer’s offer of a light-duty job even if he or she is certified as able to return to a light-duty job, but may lose workers’ compensation payments as a result. The worker still would remain on unpaid FMLA leave until that is exhausted.

California Septagon

In California, the paid sick leave ordinances add another ingredient of compliance to a rich gumbo. They will have to be considered in conjunction with the FMLA, ADA and four state laws: workers’ compensation laws, pregnancy disability leave (PDL), the Fair Employment and Housing Act (FEHA), and the California Family Rights Act (CFRA).

“Even for savvy HR people it can already be extremely difficult” to piece the unpaid leaves together, said Danielle Moore, an attorney with Fisher & Phillips in San Diego, particularly when an employee is pregnant and suffers a pregnancy-related disability before and after giving birth.

If there is a disability before birth, the FMLA and PDL may run together, for example. The CFRA would not start running yet because the CFRA and PDL cannot run together. After birth, however, during bonding time with the baby, the employee's 12-week entitlement under CFRA would start to run.

The situation grows more complicated if an employee then suffers postpartum depression. In that scenario, the PDL would start to run again and the CFRA would stop, only to potentially start again after PDL ceases. Also, even after the CFRA runs out and the FMLA runs out, there may be more leave available under the ADA and FEHA as a reasonable accommodation. “It gets very complicated tracking when leaves start and stop,” Moore remarked.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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