Negotiating the maze of overlapping leave laws

© 2017 Payne & Fears, LLP. All Rights Reserved. 1
Presented by:
Payne & Fears LLP
L e i l a N a r v i d , M e l i s s a C l a r k e , a n d
J o n a t h a n B l a c k
March 2017
Negotiating the Maze
Of Overlapping Leave Laws

CLE Credit
Payne & Fears LLP is a State Bar of California
approved Minimum Continuing Legal Education
(MCLE) provider. All attendees who are members of
the California State Bar will receive 1.5 hours of
California MCLE credit for attending this webinar.

Disclaimer
The content in this presentation should not be
construed as legal advice. It is solely for an
educational/informative purpose.

How to Ask a Question
 To the right of your screen, you will see a “Questions” window
 Type in your question and hit “Send.”

Federal and California Laws Regulating
Employee Leaves of Absence
 California Laws
 California Family Rights Act (“CFRA”)
 Reasonable accommodation for disabilities under the Fair
Employment and Housing Act (“FEHA”)
 Pregnancy Disability Leave (“PDL”) under FEHA
 Paid Sick Leave: Healthy Workplace Healthy Family Act of
2014, and City-Specific Ordinances
 “Kin Care” under Labor Code Section 233

Federal and California Laws Regulating
Employee Leaves of Absence
 Federal Laws
 Family and Medical Leave Act (“FMLA”)
 Leave as reasonable accommodation under the Americans
with Disabilities Act (“ADA”)

Protected Bases for Leave
 Pregnancy
 Child Care/Bonding (Birth and Non-
Birth Parent)
 Employee’s Own Health Condition
 Employee’s Relative’s Health Condition

Pregnancy: Meet Jane
 Jane is five months pregnant.
 Which leave laws are potentially at play?

Pregnancy: The Laws
 California’s Pregnancy Disability Leave (PDL)
 An employee who is disabled due to pregnancy,
childbirth, or related medical conditions
 FMLA / CFRA ?
 ADA / FEHA

Pregnancy:
Amount of Leave Required
 PDL – up to maximum of 4 months
 CFRA – up to maximum of 12 weeks
 ADA / FEHA – indefinite

Pregnancy:
Pay / Benefits
 Can I force my employee to use accrued PTO, Sick, or
Vacation?
 PDL – Generally, No.
 FMLA / CFRA – It depends.
 Non-Employer Benefits
 SDI
 Paid Family Leave (PFL)

Pregnancy:
Pay / Benefits
 Paid Family Leave (PFL): 6 weeks of paid time off for
birth of child, adoption, or foster placement.
 Benefits paid from taxes on employee’s pay.
 Relationship to PDL / FMLA / CFRA

Non-Birth Parent: Meet Bob
 Bob’s girlfriend Linda just had a healthy baby.
 Which leave laws are at play for Bob?

Non-Birth Parent
 The Laws: FMLA / CFRA only
 Why not PDL or ADA / FEHA?
 Amount of Leave: under FMLA / CFRA, up to 12
weeks
 Unlike with pregnancy, no need to worry about issues
relating to PDL

Non-Birth Parent:
Pay / Benefits
 Vacation Pay / PTO (under FMLA / CFRA)
 Paid Family Leave (PFL): 6 weeks of paid time off for
birth of child, foster placement or adoption of child.
 Benefits paid from taxes on employee’s pay.
 Relationship to FMLA / CFRA

Employee’s Own Condition:
Meet Rod
 Rod suffers from chronic back pain, which has
resulted in symptoms associated with depression.

The Laws
 FMLA / CFRA – what is a “serious medical
condition”?
 ADA / FEHA – who is a “qualified individual with a
disability.”

Amount of Leave Required
 Amount
 FMLA / CFRA – up to maximum of 12 weeks
 ADA / FEHA – variable
 FMLA / CFRA – How do
I determine how much
leave my employee is
entitled to?

Pay / Benefits
 PTO / Sick Time
 Healthy Workplace Healthy Family Act of 2014
 City-Specific Paid Sick Leave Ordinances
 SDI

Care for a Relative:
Meet Dutiful Scott
 Scott’s elderly mother suffers from kidney disease, and Scott
must miss work from time to time to care for her.

Care for a Relative
 The Laws: FMLA / CFRA
 Why not ADA / FEHA?
 Which relatives qualify?
 Amount of Leave Required:
 12 weeks maximum

Care for a Relative: Pay / Benefits
 Healthy Workplace Healthy Family Act of 2014
 City-Specific Paid Sick Leave Ordinances
 “Kin Care”

Termination While on Leave
 FMLA, CFRA, PDL: Generally, job is protected for
duration of leave
 But: Employees have no greater
rights than they would have had
if continuously employed.
 How to manage performance.

Reinstatement Rights
 FMLA / CFRA
 To same or equivalent position
 Defenses / Exceptions
 PDL
 To same or comparable “available job”
 Defenses / Exceptions
 Equivalent or Comparable Position
 Insurance
 Seniority

FMLA, CFRA, and PDL :
Leave Overlap Hypotheticals
 Hypothetical No. 1
 Jane calls her supervisor in the morning, leaves a message that
she is “very sick” and needs at least a week off from work
 What should the supervisor do?
 How much time can Jane take off?
 Same as No. 1. After being provided with FMLA paperwork,
Jane’s doctor writes only that “Jane is sick from being four months
pregnant”
 What should human resources do?
 How much time can Jane take off?

FMLA, CFRA, and PDL :
Leave Overlap Hypotheticals
 Same as No. 1. Jane’s husband Jack also works for the
Company. Jack tells human resources that he and Jane want to
take the maximum time off for the birth of the baby.
 How much time can Jane and Jack each take off?
 Bill is scheduled to be terminated for performance and attendance
problems. On the day of the termination meeting, Bill presents a
note that says that he has a “colon disorder.”
 Should Bill be terminated?
 What should human resources do?

Disability and Child Care:
Leave Overlap Examples
 Employee takes one month of leave for her own
disability (not pregnancy-related) and six months later
asks for two months of child care leave.
 Employee is disabled by pregnancy, then requests
maximum leave to care for new baby. What is her
maximum leave?
 Employee is not disabled by pregnancy, and requests
maximum leave for pregnancy and childcare. How
much leave can she take?

Intermittent/Reduced Schedule Leave
 Intermittent Leave
 Reduced Schedule Leave
 Application:
 FMLA / CFRA
 PDL
 ADA / FEHA

Transfers
 FMLA / CFRA
 Generally, no duty
 Intermittent/Reduced schedule?
 PDL
 Generally, no right for employer to unilaterally transfer.
 Employer may have duty to transfer in certain
circumstances.
 ADA / FEHA
 May be a reasonable accommodation.

Use of Accrued Paid Time Off
 Healthy Workplaces, Healthy Families Act of 2014 (Labor
Code § 245, et seq.)
 Most California employers must provide eligible employees with
paid sick leave.
 Use
 Accrual
 Cap
 Certification
 Kin Care (Labor Code § 233)
 All California employers who offer sick leave must allow
employees to use at least half of their paid sick leave to care for
family member.

Continuing Medical Coverage
 FMLA /CFRA
 Required on same basis as active employees.
 Cap
 Responsibility for premium
 PDL
 Treatment with other temporary disability leaves granted by
employer.
 ADA / FEHA
 Not required as reasonable accommodation.

Medical Certifications
 FMLA / CFRA
 Employer may require for serious health condition.
 PDL
 Employer may require, but with limitations.
 ADA / FEHA
 Employer may require only
if insufficient information

Medical-Related Inquiries
 Under what circumstances can the employer ask
about the disability or serious health condition of an
employee?
 Under what circumstances should the employer not
make inquiries?

Medical-Related Inquiries
 What questions can an employer ask of the employee?
 What should an employer not ask?

“Fitness for Duty” or “Return to Work”
Certification
 FMLA / CFRA / PDL
 Employer may require.
 Uniform practice or policy
 Contents
 Notice to employee
 Second opinions?

Going Above and Beyond
 FMLA / CFRA / PDL, as well as
the various pay / benefit laws,
are minimum requirements.

Leave Laws: The Chart
Duration Pay / Benefits
Pregnancy PDL (FMLA): 4 Months
CFRA: 12 weeks
ADA / FEHA: ???
PDL: PTO / Sick / SDI
CFRA: PTO / Sick / PFL / City
Ordinance
ADA / FEHA: PTO / Sick / SDI /
City Ordinance
Baby Care /
Bonding
FMLA or CFRA: 12 weeks PTO / Sick / Kin Care / PDL /
City Ordinance
Employee’s Own
Health Condition
FMLA / CFRA: 12 weeks
ADA / FEHA ???
PTO / Sick / SDI / City
Ordinance
Caregiving for
Employee’s Relative
FMLA / CFRA: 12 weeks PTO / Sick / Kin Care / PDL /
City Ordinance

Questions?
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any questions you might have.
 If we do not have sufficient time to answer your
questions during today’s webinar, we will send you a
response via e-mail.

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Thank you.

© 2017 Payne & Fears, LLP. All Rights Reserved. 40© 2017 Payne & Fears, LLP. All Rights Reserved. 40
IRVINE LOS ANGELES SAN FRANCISCOLAS VEGAS SALT LAKE CITY SILICON VALLEYPHOENIX
Leila Narvid - ln@paynefears.com
Melissa Clarke - mec@paynefears.com
Jonathan Black - jwb@paynefears.com

Negotiating the maze of overlapping leave laws

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