How to Solve the Riddle of Employee Leave Law

The Four-Headed Monster:

John P. Boggs, Esq.Fine, Boggs & Perkins LLP

Managing the BeastWork Injury, Leaves,

Disability and COBRA

Speakers

Moderator Presenter

Brian TorrezAlliance Marketing Manager

303-228-2387

btorrez@kpaonline.com

John P. Boggs, Esq.Fine, Boggs & Perkins LLP

650-712-8908jboggs@employerlawyers.com

If you have questions during the presentation, please submit them using the “Questions” feature

Questions will be answered at the end of the webinar

QUESTIONSQuestions

The Four-Headed Monster

* California Workers’ Compensation Act

* Family and Medical Leave Act (FMLA)& California Family Rights Act (CFRA)

* Americans with Disabilities Act (ADA)& California Fair Employment and Housing Act

(FEHA)

* Consolidated Omnibus Budget Reconciliation Act (COBRA)

California’s Workers’ Compensation Act

Workers’ Compensation emphasizes:1. What employees cannot do by focusing on the

nature and percentage of their disability... 2. . . . so as to provide suitable compensation for

lost earnings...3. . . . resulting from a work-related injury.4. Prevent discrimination

Family and Medical Leave Act FMLA is concerned with:

1. Providing a minimum level of unpaid, job-protected leave to eligible employees;

2. Covering those who suffer from a serious health condition; and

3. Protecting those employees from adverse treatment because of the need for leave.

Americans with Disabilities Act & Fair Employment and Housing Act

The ADA attempts to eliminate workplace disability discrimination by:1. Emphasizing what employee can do as opposed to

focusing on an employee’s limitations; 2. Requiring employers to evaluate an individual's

fitness to perform the essential functions of the job on a case-by-case basis; and

3. Considering any reasonable accommodation in the process.

COBRA

COBRA provides for continuation of fringe benefits to qualified employees and/or their dependents upon a qualifying event, by:

1. Defining which benefit plans are covered;2. Defining a qualifying event; 3. Defining who is entitled to continuation of

coverage;4. Determining how long continuation lasts; and,5. Establishing the notification requirements.

• Whenever an employee is injured on the job, suffers an occupational disease, requires a medical leave of absence or indicates a medical problem preventing him/her from performing normal and customary job duties, you must manage the Four-Headed Monster.

Managing The Beast

Workers’ Compensation

• Any employee who suffers an injury during the course and scope of their employment

• A physical or mental injury which causes disability or need for medical treatment. Can be specific, cumulative, or occupational disease.

• An employer may not make pre-employment inquiries into an applicant's Workers' Compensation history, the existence of a disability, or the nature or severity of a disability, whether on application forms, in job interviews, or in background or reference checks.

Workers’ Compensation

• An employer may not make any medical inquiry or conduct any medical examination before making a conditional offer of employment.

• Firms hired to conduct background checks are agents of the employer. The employer is responsible for the actions of its agents and may not do anything through its agents that it could not itself do directly.

Workers’ Compensation

Family and Medical Leave Act

The Family and Medical Leave Act ("FMLA") entitles eligible employees to job-protected, unpaid leave:

1. for the birth of a child, to care for a newly-born child, or placement of a child with the employee for adoption or foster care;

2. to care for an immediate family member (spouse, child, or employee's parent) with a serious health condition; or

3. because of the employee's serious health condition which makes the employee unable to perform the functions of the employee's job.

Family and Medical Leave Act

1. Are you a Covered Employer?– 50 employees in a 75 mile radius

• Integrated Employer• Joint Employer• Corporate lines don’t control

Three Questions to Ask Under the Family and Medical Leave Act

2. Is the employee a Covered Employee?– 1250 hours worked in the last 12 months– 12 months worked for the Employer

• Consecutive months or stints of employment not required

– Used less than 12 weeks of leave in the last 12 months

Three Questions to Ask Under the Family and Medical Leave Act

3. Is the condition a Covered Condition?– Serious Health Condition or Pregnancy/Child Birth

• For oneself or to care for an immediate family member

• To Bond with a new child (biological, adopted or foster)

Three Questions to Ask Under the Family and Medical Leave Act

Coverage and Eligibility

Q. How is 12 month period for determining whether employee has taken the permitted 12 weeks calculated if no written policy?

A. Calendar vs. Rolling 12-month period—whichever gives employee the most rights.

1250 Hour Eligibility Requirement• Do you count vacation and sick time???

• Period of employment through temp agency???

• Disciplinary suspension????

Serious Health Condition?

An illness, injury, impairment, or physical or mental condition that involves one or more of the following:

1. Hospital care;2. Absence plus treatment3. A permanent/long-term (chronic)

Condition requiring supervision;4. Multiple treatments for non-

Chronic conditions, or;5. Pregnancy

• Employee must specify?• Multitude of unrelated illnesses combined?

– Ear Infections?– Respiratory Infections?– Flu/Food Poisoning?– Internal Bleeding?– Ulcers?

What is a Serious Health Condition?

Family Leave• For the birth of a child, to care for a newly-born

child, or placement of a child with the employee for adoption or foster care.

• To care for an immediate family member (spouse, child, or employee's parent) with a serious health condition.

What is a child?

• Under 18 years of age OR over 18 years of age and incapable of self-care

• Because of a mental or physical disability

• Biological, adopted, foster child, stepchild, legal ward, child of domestic partner, in loco parentis

FMLA vs. CFRA

Under FMLA, pregnancy is a serious health condition

Under CFRA, pregnancy is not a serious health condition.

PREGNANCY

Result is that a pregnant employee gets:– Up to 4 months of pregnancy leave due to

pregnancy or pregnancy-related disability– Up to 12 weeks of leave under FMLA as

pregnancy is a serious health condition– Up to 12 weeks of leave after the baby is born

for “bonding” purposes.

YES, that’s up to a total of 7 months of leave.

What is a spouse?

• Domestic partner?

• Legally separated?

• Putative spouse?

FMLA Military Leave

• SPECIAL RULES APPLY TO MILITARY LEAVE• LONGER

• DIFFERENT QUALIFICATIONS

When can you use the key employee exception?

Pretty much never.KEY EMPLOYEE EXCEPTION

• Top 10% of all wage earners• Must give leave anyway• Do not have to reinstate if would cause substantial and

grievance economic injury to reinstate– not to grant the leave.

What if the Employee Won’t Return the Health Care Provider Certification?

• Reasonable period of time of not less than 15 days - what’s that?

• What action can you take against the employee?– Deny the leave retroactively?

• What happens to the leave?– It becomes absence without approved leave.

Initial Compliance: Responding to a Leave Request or Absence

– Confirming Eligibility for and Availability of FMLA/CFRA Leave.

– Evaluating Qualification for FMLA/CFRA Leave.

– Designating FMLA /CFRA Leave.

• Failure to Designate? Could mean trouble.

FMLA Compliance Checklist

FMLA Compliance Checklist

During FMLA/CFRA Leave

• Cannot request re-certification during initial stint of leave.

When FMLA/CFRA Leave Ends

• Require a release to return to work– if applies to all types of leave– not just FMLA leave.

Family and Medical Leave Act Policy

• Employee Eligibility• Conditions Triggering Leave• Duration of Leave• Use of Accrued Paid Leave• Maintenance of Health Benefits• Job Restoration• Notice and Medical Certification• Failure to Return After FMLA/CFRA Leave• Limited Nature of This Policy

Leave Request Form

• Reason for Leave

• Type of Leave Requested

• Intermittent Leave/Reduced Work Schedule

• When will you return to work?

• Certification

FMLA Notice and Designation Form

• Eligibility

• Designation of Leave

• Employee Requirements

• Key Employee Exception

Retroactive Designation of Leave

• Can you ever retroactively designate the leave?

• Under what conditions?

Certification of Health Care Provider Form

• Employee/Patient Condition

• Health Care Provider Information

• Additional Employee Information

American with Disabilities Act

• A qualified individual with a disability who, with or without reasonable accommodation, can perform the essential elements of the employee’s job

• A physical or mental impairment that substantially limits one or more of the employee’s major life activities. A record of such an impairment. Or being regarded as having such an impairment.

Definitions Overlap and Conflict

ADA –Disability is not always FMLA serious health condition.

FMLA – A serious health condition is not always ADA disability.

Employees on Workers’ Comp Disability may not be covered by ADA or FMLA.

Temporary impairments are not covered by the ADA.

FMLA and Workers’ Comp Conflicts

• Employees injured on the job under the Worker’s Compensation provisions may still be eligible for FMLA leave.

• Employees on Workers’ Comp must be put on FMLA leave -- just as if they were on a non-work related injury medical leave

• Employees on FMLA leave are entitled to have their health insurance covered for the first 12 weeks of Workers’ Comp, then they should be put on COBRA if your Health Plan is governed by ERISA.

• An available light duty position must be considered as a form of reasonable accommodation under the ADA.

• Workers' Compensation gives employers the option of providing light duty, but it is not required. The system encourages employers to provide light duty by financially penalizing those who do not.

• Yet FMLA prohibits employers from requiring employees to return to light duty positions during their 12-week protected period.

FMLA and Workers’ Comp Conflicts

The ADA and Workers' Compensation systems treat the concept of "disability" differently.

• This conflict can lead to ADA claims.• Do not assume that an individual who is permanently

disabled under the system is not entitled to additional protection under the ADA.

• On the other hand, the disability may preclude them from performing the job's essential functions — even with reasonable accommodation — so as to render them unqualified.

Workers’ Compensation Claims Provide a Fertile Ground for ADA Charges

Reminders

• FMLA and Workers’ Comp may run concurrently

• Avoid tacking leaves

• Make sure the employee has received written notice re: FMLA designation

• Rely on medical opinions

• Make sure FMLA poster is displayed

FREE CONSULTING TIME!!!

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bross@kpaonline.com

866-356-1735

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