PART 1: INTRO TO MEDICAL

LEAVES

Department of Human Resources

Medical Leave Program

City and County of San Francisco

OVERVIEW: KNOW YOUR LEAVES & BENEFITS

• City Employee BenefitsEmployee Handbook, Civil Service Rules, City Charter, MOU

• City Laws & Ordinances Sick Leave, Parental Pay, CIP, FFWO

• State Laws CFRA, PDL, FEHA, Kin Care, Organ Donor

• Federal Laws FMLA, ADA

CCSF ONLY EMPLOYEE BENEFITS

Paid Sick Leave* (SLP)

• 13 days per year (104 hours) – for full time employees• Available to regularly scheduled employees • 6 Month Waiting Period• 130 days (1040 hours) maximum accrual limit• Authorized Use:• Medical appointments• Illness • Bereavement• Employee, dependent child, parent, spouse,

registered domestic partner or military care*Employee Handbook pp. 32-33

CCSF ONLY EMPLOYEE BENEFITS

Unpaid Sick Leave* (SLL)• Available to employees who do not qualify for paid sick leave

• Appointing Officer has discretion to approve or deny

• 3 month increments up to one year

*Civil Service Rule 120, Article IV

CCSF ONLY EMPLOYEE BENEFITS

Family Care Leave* (FML)

•Up to one year of leave for any FMLA/CFRA qualifying reason•Extends leave under the federal Family Medical Leave Act and California Family Right Act (FMLA/CFRA) beyond 12-weeks•Available to permanent employees (after one year of employment) who don’t qualify for FMLA/CFRA

•Appointing Officer has discretion to approve*Employee Handbook p. 35

Local Laws•Paid Parental Leave (PPL)•Catastrophic Illness Program (CIP)

•Sick Leave Ordinance (SLO)•Family Friendly Workplace Ordinance (FFWO)

Paid Parental Leave• S.F. Charter, Appendix A, § A8.365 (PPL/PRP)• Supplements SLP, VAP, FHP, and SDI, PFL, or any pay

available during pregnancy disability or bonding leave• Full wage replacement benefit• Available after• 6 months continuous service, working at least 20

hrs/wk, OR• 1,040 hours worked within 12 months prior to start of

leave.• Employee required to exhaust accrued leave, but• PPL benefit will be offset by any accrued leave the

employee elects not to use, but could have used during the leave

• Up to 16 weeks, while on any FMLA/CFRA or PDL qualifying leave

Catastrophic Illness Program• SF Administrative Code Section 16.9-29A (CIP)• Donated SLP and VAP hours (to individual or pool) to

benefit catastrophically ill employees and (VAP only for) employees caring for catastrophically ill family members

• “Catastrophic illness” means life-threatening illness or injury, as determined by DPH

• Available only to employees who can accrue and use SLP and VAP (after 6 months employment) and who have exhausted all leave balances

• Authorized Use• Catastrophic Illness• Care for catastrophically ill family member

• Employee must apply for short or long-term disability benefits, if available/enrolled

Sick Leave Ordinance• SF Administrative Code Chapter 12W (SLO)• 1 Hour Sick Leave for every 30 work hours (~ 70

hrs/yr)• Available after 90 days • Covers SEIU Misc., Local 21, Local 261 (TEX/AN

Only) and Unrepresented• Authorized Use

• Medical Appointments• Illness• Employee, child, parent, legal guardian, ward

(foster/adoption), sibling, grandchild, grandparent (plus in loco parentis), spouse, domestic partner or designated person

Family Friendly Workplace Ordinance• SF Administrative Code Chapter 12Z (“FFWO”)• Flexible schedule or predictable work

arrangement• Available after 6 months• May deny for a bona fide business reason• Requires timely written response to request• Authorized Use

• Contribute to ongoing care as primary person• Care for child (age 18 ↓), parent (age 65 +) or

person in a family relationship (spouse, domestic partner, sibling, grandchild or grandparent, plus in loco parentis)

True or False • If doctor states that employee needs

sick leave, employer must accept statement without further inquiry?

State and Federal Medical Leave Laws

Overview of Medical Leave Laws•Family and Medical Leave Act (FMLA)•California Family Rights Act (CFRA)•Pregnancy Disability Leave (PDL)•Americans with Disabilities Act (ADA)•Fair Employment and Housing Act (FEHA)•Labor Code Provisions

• Workers’ Compensation• Drug/Alcohol Rehabilitation• Bone Marrow Donor• Organ Donor• Kin Care

Family and Medical Leaves

• Federal and California law permit eligible employees to take time off for the employee’s own serious health condition, to care for a family member with a serious health condition, for baby bonding and for certain military-related reasons

• Relevant Laws:• Family Medical Leave Act (FMLA)• California Family Rights Act (CFRA)

Family and Medical Leaves (FMLA & CFRA)

• 12 weeks of job protected leave during a rolling 12-month period (480 hours based on a 40 hr/wk schedule)

• Covers long-term leaves and intermittent leave• Available to employees who are:• Employed 12 months (need not be continuous)• Worked 1,250 hours during 12 –month period prior to

the leave• Work at a site where there are at least 50 employees

within a 75-mile radius• Authorized Use• Illness• Care for others

• BOTH LAWS APPLY IN CALIFORNIA !

Family and Medical Leaves (FMLA & CFRA)• Generally run concurrently• Exceptions• CFRA excludes pregnancy-

related disability as a serious health condition

• CFRA excludes military exigency leaves

• FMLA excludes domestic partners

FMLA & CFRA: Key DifferencesFMLA CFRA

Pregnancy-Related Disability = Serious Health Condition

Covered. Not covered.Pregnancy-related disability is a separate leave of up to 4 months

Registered Domestic Partners

Not covered. Covered.

Qualifying exigency leave for employee’s or family member’s military deployment

Covered. Leave arising out of the active duty or impending call to active duty for foreign deployment of the employee, spouse, child or parent.

Not covered.

Care for ill or injured service member

Covered. “Next of kin” allowed 26 weeks w/in a 12 month period.

Only covered for 12 weeks if “next of kin” is a qualifying family member under CFRA regs.

Pop Quiz

• Jeff asks for 12 weeks of leave to care for his registered domestic partner who is disabled by a high-risk pregnancy. Following the birth, Jeff ask for an additional 12 weeks of leave for bonding.

• How much leave is Jeff entitled to receive?

Jeff’s Entitlements

• 12 weeks of CFRA leave to care for the serious health condition of his registered domestic partner (the employee’s own pregnancy is excluded under CFRA, but Jeff is not pregnant here)

• 12 weeks of FMLA leave for bonding with his new baby (Jeff did not use FMLA to care for his registered domestic partner because it’s not covered)

• Jeff may be entitled to 24 weeks of protected leave with the proper certification

• Note: Married City employees must split FMLA bonding leave. Married City employees and registered domestic partners employed by the City must split CFRA bonding leave

Reasons for FMLA/CFRA Leave• An employee may take leave under FMLA and

CFRA for:• The employee’s own serious health condition• To care for a child, parent or spouse with a

serious health condition (Includes in loco parentis. CFRA Only: Domestic Partners)

• For bonding with a newborn, adopted child or child placed for foster care (within 12 months of the birth or placement)

• To care for an ill or injured military service member (FMLA Only: Military Caregiver Leave)

• Because of a qualifying exigency/reason relating to a close family member’s military service (FMLA Only)

Serious Health Condition• A serious health condition is an illness, injury,

impairment or physical or mental condition that involves:• Inpatient hospital, hospice or residential medical

facility care OR• 3 consecutive days of incapacity and ongoing

medical treatment (multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication) OR

• Occasional incapacity and a regimen of continuing care (at least two appointments with a health care provider yearly)

• FMLA Only: Pregnancy (medical appointments, incapacity, medically required bed rest)

Are you serious?

• Ron takes a leave of absence to help his 73-year old father in Reno. His father became depressed following the death of Ron’s sister. While in Reno Ron assists with household chores, drives his father to psychologist appointments and settles his sister’s estate. Ron’s father works full time and did not miss any time from work due to his depression. After three months Ron returns to work and is demoted.

• Ron claims his FMLA/CFRA rights have been violated. Is his father’s condition qualifying?

Dad’s condition could be serious . . . .

• Before the leave Ron should have received notice of his FMLA/CFRA rights and responsibilities

• Ron should have been asked to provide certification that his father’s health condition meets the FMLA/CFRA criteria

• FMLA/CFRA includes chronic conditions that may cause 3-days or more of incapacity without treatment

• Dad’s health care provider should decide whether Ron “needed to care for" his Dad, which encompasses both physical and psychological care

• Don’t assume or guess FMLA/CFRA eligibility – request certification from a health care provider

Military Caregiver Leave

Military Caregiver Leave

• FMLA entitles eligible employees to take up to 26 weeks of unpaid leave to care for a covered service member with a serious injury or illness

• “Caregiver” includes• Spouse/child/parent of the injured service

member• Next of kin of the injured service member• No age limit on caring for a child who is an injured

or ill service member• An eligible employee is limited to a combined total of

26 workweeks of leave for any FMLA-qualifying reason during a single 12-month period

• Note: Not the same as FMLA - Military Exigency Leave

The call of duty

• Jane’s husband just returned from deployment to Afghanistan with severe PTSD. She requests a 16-week leave of absence to join him at an in-patient readjustment program in Washington, D.C. Jane had already requested 12-weeks of leave for a knee surgery in six month. How much leave is Jane entitled to receive?

Jane can get up to 26 weeks of FMLA leave protections within a 12-month period

• Jane may be entitled to 16 weeks of FMLA military caregiver leave protections with proper certification

• CFRA may run concurrent with FMLA military caregiver leave protections if husband’s PTSD qualifies as a serious health condition

• Jane may be entitled to 10 weeks of FMLA leave protections for her own serious health condition to cover her knee surgery – with proper certification

• Jane runs out of leave protections after 26 weeks, but there are options for extending her leave, such as Family Care Leave

Pregnancy Disability Leave (PDL)

Pregnancy Disability Leave (PDL) Overview

• For birth mothers only• Employee is unable to work due to

pregnancy-related disability, or• Employee is unable to perform one

or more essential job functions, or• Employee is unable to perform the

job without undue risk to herself or others until completion of the pregnancy

PDL Eligibility

• California’s PDL law applies to all pregnant employees

• No length of service requirement (contrast to City PPL with 6-month service requirement and 20 hr/wk)

• Employer may require medical certification of disability if required for other types of leave

PDL Length of Leave

• Up to four months of leave per pregnancy• Four months = the number of days/hours an

employee would normally work within four months (693 hours for a 40 hr/wk employee)

• May be taken as continuous leave, or intermittently, or as a reduced work schedule

• After the four months, an employee may qualify for additional leave under• ADA/FEHA if reasonable accommodation

is needed for disability• CFRA for baby bonding up to 12 weeks

PDL vs. FMLA/CFRA

PDL FMLA CFRA

Pregnancy Disability Covered?

YES. 4 months (runs concurrent with FMLA leave)

YES. 12 weeks. NO

Pregnancy Leave Covered?

Only for periods of disability (Includes prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, or any related medical condition.)

Only for periods of disability. (Any period of incapacity due to pregnancy, or for prenatal care.)

NO

Baby Bonding Leave Covered?

NO YES. 12 weeks (unless exhausted during PDL)

YES. 12 weeks

PDL vs. FMLA/CFRA Interplay (Normal Pregnancy)

4.5 Months

Birth

End PD

L

End FM

LA

End C

FRA Discretionary Leave

PDL & FMLA/CFRA Interplay (Difficult Pregnancy)

7 Months

Birt

hEnd FM

LA

End C

FRA

End PD

L

Your Time is Up

• Ana was hired to a permanent civil service position. She learned that she was pregnant shortly after her hire date, and she was diagnosed with a high-risk pregnancy. Ana was granted 19 weeks of leave and then she was released from her probationary appointment because she was medically unable to return to work. She had exhausted her PDL entitlement, and was still unable to return to work at the time of her release. Were Ana’s leave rights violated?

Can Ana have a little more time?• Always consider extending leave as a

reasonable accommodation for an employee’s qualifying disability

• Ana’s pregnancy-related disability entitles her to reasonable workplace accommodations

• Ana may have been able to return to work following a reasonable extension of her leave, but there was no interactive process to discuss granting her an accommodation

• Leave extensions must be reasonable

Americans with Disabilities Act (ADA) and Fair Employment and Housing Act (FEHA) Leave

Americans with Disabilities Act (ADA) and Fair Employment and Housing Act (FEHA) Leave

• Under the ADA and FEHA, permitting use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessary due to an employee's disability

• The leave must be likely to be effective in allowing the employee to return to work at the end of the leave, with or without further accommodation

• Indefinite leaves are not a reasonable accommodation

• If holding the job open is an undue hardship, then must look for vacant, equivalent positions for which the employee qualifies before considering separation

Americans with Disabilities Act (ADA) and Fair Employment and Housing Act (FEHA) Accommodations• When an employee can continue to work with a

reasonable accommodation the employee cannot be forced to take a leave of absence

• Similarly, an employer is not required to approve leave when an alternative accommodation would be just as effective at returning the employee to work or keeping the employee at work

• Can overlap with FMLA/CFRA leave• May extend leave beyond 12-week

FMLA/CFRA limits as a reasonable accommodation

Workers’ Compensation Laws

Workers’ Compensation Leave• California Workers’ Compensation Act provides an

exclusive system of compensation for employees injured on the job

• A leave of absence may be required when an injured employee is unable to work due to the injury/illness or related conditions. The leave may be terminated due to:• Business necessity• Permanent and Stationary (P&S)/Maximum Medical

Improvement (MMI) Determination• An employee who has a work-related injury/illness may

also be covered by:• FMLA/CFRA leave requirements, where the work-

related injury/illness is a serious health condition• ADA/FEHA reasonable accommodation requirements

where the work-related illness/injury is a qualifying disability

We thought you weren’t coming back . . . .• Tanya is a Water Treatment Operator who severely

injured her neck while moving equipment. She required multiple surgeries to remove herniated discs, fuse vertebrae and to insert a metal plate in her neck.

• She received workers’ compensation benefits. A QME doctor determined that due to her injuries, Tanya would not be able to return to work at the water treatment plant. The Department wrote Tanya a letter explaining that she would be medically separated unless she disagreed with the determination that she is unable to perform the essential functions of her job or another City job, with or without reasonable accommodations. Tanya did not respond and was medically separated. Have her rights been violated?

Speak up Tanya

• The Department sent Tanya letters inviting her to engage in discussions about return to work

• Tanya’s failure to respond is evidence that she was not interested in return to work

• If an employee unreasonably refuses to communicate, the employer may, under the right circumstances, take unilateral action

Practice Tips• Invite employees on long-term leave to

engage in the reasonable accommodation process to discuss return to work

• Send letters via certified and regular mail, and via email if possible

• Document conversations about return to work with employees on leave

• Give employees notice that long-term leave may lead to medical separation under the ADA and FEHA

• Employees are responsible for providing updated contact information for PeopleSoft records

Alcohol/Drug Rehabilitation

Alcohol and Drug Rehabilitation Leave

• California Labor Code §§ 1025-1028 require employers to grant employee requests for time off to participate in alcohol or drug rehabilitation programs

• Must reasonably accommodate alcohol/drug rehabilitation, unless an “undue hardship” exist

• Must allow use of accrued sick leave (City policy requires employees to use leave accruals)

• Must protect employee’s privacy• Length of leave must be consistent with

rehabilitation program• Request verification of program term

Bone Marrow Donor

Organ Donor

Donor Leaves

• California Labor Code §§ 1508-1513 require employers to grant time off for bone marrow or organ donation• Time off does not run concurrently with

FMLA/CFRA or other leave entitlements

• Five paid days for bone marrow donors• 30 paid days for organ donors• Leave may be long-term or intermittent• Employer must maintain group health

insurance

Kin Care

Kin Care Leave

• California Labor Code § 233 allows employees to use sick leave to care for family members

• Must allow employees to use half of their annual sick leave to care for sick “kin”• Does not require a serious health

condition• “Kin” = child, parent, spouse, domestic

partner (in loco parentis too)• Kin care absences are protected and do

not count as violating attendance policies

    Concurrent Leaves

SP Sick Pay

Sick w/out Pay

Family Care Leave

Sick Leave Ordinance

Catastrophic Illness Program

FMLA

CFRA

Pregnancy Disability

Military Caregiver Leave

ADA

FEHA

Workers’ Compensation

Alcohol/Drug Rehab

Bone Marrow Donor

Organ Donor

Kin Care Leave

Sick Pay √   √ √   √ √ √ √ √ √   √  √ √ √

Sick w/out Pay   √ √     √ √ √ √ √ √   √   √

Family Care Leave √ √ √ √       √   √ √   √      

Sick Leave Ordinance √   √ √   √ √ √ √ √ √   √ √ √ √

Catastrophic Illness Program   √   √ √ √   √ √ √          

FMLA √ √   √ √ √ √ √  √ √ √ √ √  √

CFRA √ √   √ √ √ √   √ √ √ √ √     √

Pregnancy Disability √ √  √ √   √   √   √ √          

Military Caregiver Leave √ √   √ √ √ √   √             √

ADA √ √ √ √ √ √ √ √   √ √ √ √      

FEHA √ √ √ √ √ √ √ √   √ √ √ √    

Workers’ Compensation           √ √     √ √ √        

Alcohol/Drug Rehab √ √ √ √   √ √     √ √   √      

Bone Marrow Donor √     √               √    √

Organ Donor √ √   √                   √  √

Kin Care Leave √ √ √   √ √   √      √  √ √

Leaves That May Run Concurrent (Always Look for Exceptions to Concurrent Use)

Pay and Benefits During Leave• FMLA and CFRA are unpaid, but City policy

requires employees to use accrued SLP while on unpaid FMLA/CFRA leave

• Employees may elect to use SLP, VAP, CTP, FHP or other accrued leave while on an FMLA/CFRA qualifying medical leave of absence

• Employees may apply for State Disability Insurance (SDI), Paid Family Leave (PFL) or Social Security Disability while on medical leaves

• Some MOUs require use of accrued SLP to supplement SDI

• Employer must continue group health insurance during FMLA/CFRA and PDL

 Bene fit

 Paid by

 Eligibility

 Length

 Covers

Workers’Compensation (WC)  Employer  Immediately  Two years  Work Related Illness

or InjuryCA Labor Code 4850 (Public Safety Only)

Employer Immediately One year Work Related I l lness or In jury

State Disability Insurance (SDI)

 Employee

8th calendar day of disability

 One year

Non-Work Related; Birth

Long Term Disability (LTD)

Employer (except MEA)

180 or 90day elimination period

 Two years

Work or Non- Work Related

Catastrophic Illness Program (CIP)

Employer (donation by other Employees)

 Immediately

Indefinite (or until eligible for LTD)

Catastrophic Illness of Employee

Family Medical Leave Act (FMLA) / California Family Rights Act (CFRA)

 N/A

One year and 1250+ hoursin last 12 months

 12 weeks

Illness of Employee or Family; Birth

 Family Care Leave

 N/A

 One year

One year(discretionary)

Illness of Employee or Family; Birth

 Paid Parental Leave (PPL)

Employer (if all other paid leave exhausted)

 1040+ hours

12 weeks bonding(16 weeks if disability)

 Disability or Birth

 Pregnancy Disability Leave (PDL)

  N/A

  Immediately

4 months (not concurrent with CFRA)

Disability related to Pregnancy/Child Birth

Paid Family Leave (PFL) Employee

8th calendar day of family member’s disability

 6 weeks

 Birth

Temporary Disability Benefits & Leaves

STATE DISABILITY INSURANCE: ELIGIBILITY REQUIREMENTS

1) Unable to work for 8 consecutive days

•That means employees cannot be paid right away.

2) Employed

3) Lost wages

•Employees must have lost wages, or are earning less, because of the disability.

4) $300 SDI deductions from paycheck withheld in previous pay period

5) Under the care of a licensed doctor/accredited religious practitioner for the first 8 days

•If employees miss this timeline, the EDD can adjust the employee’s claim date so that it does fit this requirement.

6) Medical certification of disability

•A licensed midwife, nurse-midwife, or nurse practitioner may complete the medical certification for disabilities related to normal pregnancy or childbirth.

7) Complete/mail form within 49 days of disability

HELPFUL LINKS/SOURCESFMLA

• Full text: http://www.dol.gov/whd/fmla/fmlaAmended.htm#SEC_105_PROHIBITED_ACTS • Implementing regulations: 29 CFR 825• http://www.ecfr.gov/cgi-bin/retrieveECFR?

gp=1&SID=428c7b52c36ff13c3fe694b83a63895d&ty=HTML&h=L&n=29y3.1.1.3.54&r=PART#29:3.1.1.3.54.7.489.2

• FMLA Advisor: http://webapps.dol.gov/elaws/whd/fmla/overview.aspxPDL

• Full-text: California Government Code 12945 • Implementing regulation: California Code of Regulations, Title 2, Div. 4, Chapter 1, Subchapter 6a. Starting with

section 7291.2 (search “California Code of Regulations 7291.2”) CFRA

• Full-text: California Government code 12945.2 • Implementing regulations: California Code of Regulations, Title 2, Div. 4.1, Chapter 5, Subchapter 2, Article 11,

Starting at Section 11087 FEHA

• Full-text: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=12001-13000&file=12940-12951 • Implementing regulation: California Code of Regulations, Title 2, Div. 4, Chapter 1, Subchapter 9, starting at

section 7293.5 ADA

• Full-text: Ada.gov • Implementing regulations: 29 CFR 1630• http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=29%3A4.1.4.1.20#29:4.1.4.1.20.0.26.17.7

• JAN Network

DHR Medical Leave Program Contact

•Janie White•Program Manager•(415) 551-8903•Janie.White@sfgov.org

QUESTIONS