California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

Effective Jan. 1, 2012 The bills – A.B. 592 and S.B. 299, signed by California Gov. Jerry Brown will attempt fill coverage and enforcement gaps between the state and federal leave laws. SB 299 and AB 592, as well as SB 222 and AB 210, propose pregnant employees will maintain their insurance benefits while on pregnancy-related leaves. These new laws will have a significant financial impact on employers big and small, but will also give pregnant employees a little piece of mind.

The federal Family Medical Leave Act only required the same level insurance coverage to pregnant employees as they had previous to going out on leave. But it only applied to employees who were employed at a company with 50+ employees and if they had worked there over 1 year or more than 1,250 hours. Often pregnant employees working for companies with less than 50 people were unprotected

The California Family Rights Act (CFRA) allows leave for bonding with an employee’s newborn, newly-adopted or foster child. But again only applies to employee with a company of 50 or more employees. However, pregnancy itself is not a condition covered under CFRA. Pregnancy and related medical complications are covered under the PDL law.

California Pregnancy Disability Leave, (PDL); under the California Fair Employment and Housing Act, employers with 5 or more employees must give up to 4 months of unpaid disability leave to women facing time off work because of pregnancy, childbirth, or a related illness. Prior to Jan. 1, 2012 employers with less than 50 employees have right to discontinue health insurance or other benefits if this is their policy for disability leave.

A.B. 592 and S.B. 299 will change how medical insurance coverage will be maintained during PDL. Not only must the employer with 5 or more employees maintain medical insurance for their employees while out on leave. California Insurance Code mandates that all individual health insurance policies must provide coverage for maternity services for all insured’s covered under the policy. Under existing law, if a health insurer provides maternity coverage, it may not restrict inpatient hospital benefits. The change in law, however, actually mandates that the maternity coverage be provided.

If you are going out on maternity leave and your employer has put restrictions on your time off or has not given you the option of selecting maternity medical coverage it is recommended that you contact a California employment law attorney to fully understand your rights and options. Many labor law attorneys offer free or low cost preliminary consultations and in certain cases may represent you on a contingency fee basis.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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Due to the expanded definition of the term “disability” under the Americans with Disabilities Act Amendments Act of 2008 employers have been receiving an increasing number of requests for reasonable accommodations under the ADA. Most commonly of these requests are leaves of absence or changes to the employees schedule. The Equal Employment Opportunity Commission ("EEOC") and courts recognize that use of accrued paid leave or additional, unpaid time off from work may be a reasonable accommodation under the ADA.

Employers have several ways to accommodate employee requests for time away from work. For example, they can allow the employee to use accrued paid-time-off benefits like paid vacation or sick time. The employee can use the unpaid Family and Medical Leave Act during while also using accrued paid-time-off benefits or receive payments to a disability or workers' compensation benefits plan at the same time. Or the employer can also provide paid or unpaid leave according to company policy. All of these efforts are usually viewed as a form of reasonable accommodation under the ADA.

Often, employers mistakenly believe that their accommodation obligation ends once these efforts have been exhausted. Recently, this mistaken belief has been challenged by the EEOC, and at a very high cost to employers.

In 2009 a retailer settled for $6.2 million after the EEOC challenged the company policy to terminate all employees that had not returned to work after 12 months of being out on disability due to workers compensation claims.

A national communications company also settled for $20million after the EEOC alleged they had violated the ADA by holding the employees accountable for all their absences due to their disabilities. The company would fire the employees for excessive absences even though those absences were directly related to their disability.

Recently a Grocery Store Chain also settled at $3.2million after the EEOC disputed the employer's policy to terminating employees at the end of a fixed medical leave period instead of allowing the employees to return to work with reasonable accommodations.

Lastly, the EEOC Challenged a national airline company regarding it's company policy to not issue reduced work schedules for any of the employees. Instead the company required employees to either take a leave of absence or to take early retirement. The company eventually settled as well.

In short, regardless of what your company policy is you may be entitled to further accommodation of your disability. If you have been terminated or being asked to resign due to your disability you should contact an experienced labor law attorney to examine your case.
 

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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California labor law attorneys have been noticing a trend in terminations during medical leaves of absence. Often times the cause for termination is the employee’s failure to return to work within the time period allowed by the company. Employers usually set a policy that specifies that employment will terminate if an employee fails to come back from a medical leave of absence within a given period of time. Usually, those periods appear to be munificent, sometimes as long as a year. Companies reason that the employee took advantage of the full FMLA benefits and thus the employee lacks statutory job protection. By the time the leave has expired, the employee may have exhausted workers' compensation leave benefits. Employers sometime set the time limit to correspond with the commencement of long-term disability benefits, if they are available. Despite the seemingly long period of time, the employer must still recon with the ADA and its state and local equivalents.

California labor law attorneys and the EEOC has been insistently pursuing companies that implement rigid medical leave policies, despite of the length of the leave or whether medical leaves are treated in the same manner as other non-medical leaves.

California labor law attorneys and the EEOC have taken the position that the ADA requires companies to offer a reasonable accommodation to employees with disabilities and reasonable accommodation must be determined on a case-by-case basis. Because the courts have recognized that granting a leave of absence could be a reasonable accommodation, the company must engage in the interactive process, including taking into account requests for an extension of the leave or returning to work with an accommodation. The employer may then evaluate whether the requested accommodation imposes an undue hardship. The EEOC contends that inflexible leave policies ignore the obligation to make reasonable accommodations on a case-by-case basis.

Instead of sustaining a rigid medical leave policy, employers should consider:

• Institute a flexible or target end dates for medical leave.
• Inform employees within a reasonable period of time prior to the end date of the leave period that the leave is going to expire.
• Appraise whether the employee's request for accommodation is reasonable and whether it can be granted without an undue burden.
• Questioning if the employee needs additional time off and, if so, how long. The employer may want the employee to provide a statement from a physician supporting the need for additional leave and the amount of additional time off required.

If you have been terminated while out on medical leave or for failure to return according to company policy and you feel it was unreasonable given your circumstances please contact an experience California labor law attorney to examine your case.

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If you are a working family member of a military service member or a member of an airline flight crew, proposed regulations to the Family and Medical Leave Act (FMLA) may provide you with several additional employment benefits. The FMLA was originally designed to help employees take leave from work for family and medical reasons without risk of losing their job or health benefits. The Act applies to public agencies, public and private elementary schools, and companies with 50 or more employees. An employee that has worked for any of the aforementioned employers for at least 12 months or at least 1,250 hours over the course of 12 months is entitled to up to to 12 weeks of unpaid leave per year.  In 2009, President Barack Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act. These acts extended FMLA benefits to both military service members and airline flight crews who had previously been disqualified. Now it is expected that the Department of Labor (DOL) will propose amendments to these Acts to further expand their coverage. 

The National Defense Authorization Act provides that certain family members of soldiers on active duty may be allowed to take extended leave from their jobs for reasons including, but not limited to, preparing for deployment, making child care and financial arrangements, attending pre-employment and post-employment activities, and caring for an injured active duty service member or previously injured veteran. On May 28, 2010, the House of Representatives approved a bill that would amend the Act to allow the spouse, children and parents of a deployed service member to take at least two weeks of unpaid leave, even if they are not covered under the FMLA. 

The Airline Flight Crew Technical Corrections Act extends FMLA benefits to pilots, flight attendants, and other flight crew workers. Normally, most flight crew members would not qualify for FMLA benefits because they are paid for only “in-flight” time and not for the hours they are on duty between flights or on layovers. The Act provides that flight employees quality for FLMA if they are paid 60 percent of the airline’s monthly work schedule or for at least 504 hours. 

New regulations to both of the aforementioned Acts are expected to take place before November. There may also be revisions to other aspects of the Act previously enacted by the Bush administration. Although the exact changes have not been specified, the DOL has indicated that it will conduct a study next year to evaluate how families are using the FMLA. 

When applying for FMLA, be sure that you use the most current DOL-issued forms. If you take the proper steps and believe your employer has improperly denied you leave, do not hesitate to contact a knowledgable California labor law attorney for a thorough evaluation of your case.

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When a close family member is ill, you most likely want to be able to care for that individual without worrying about the effect on your job. There are two primary protections in California for employees that need time off to care for an ill family member: (1) paid family leave insurance and (2) “kin care” leave.

1. Paid family leave (PFL) is administered by the California Employment Development Department and provides up to six weeks of benefits to employees who must take time off to care for a “seriously ill” child, spouse, parent, or domestic partner. 

2. In general, employers are not required to provide paid sick leave, but if they do, they are required to comply with California’s kin care law found in California Labor Code, Section 233.  “Sick leave” is defined as “accrued increments of compensated leave” for use related to an employee’s medical condition. Section 233 allows employees to take half of their sick leave that would accrue in a calendar year to care for an ill child, parent, spouse, domestic partner, or child of a domestic partner.McCarther v. Pacific Telesis Group,  the California Supreme Court restricted the scope of available kin care leave. Specifically, the Court considered the issue of whether Section 233 applies where an employer’s sick leave policy provides for an uncapped number of compensated days off, but does not provide for accrual of any specific sick leave. In a unanimous decision, the Court held that Section 233 “does not apply to any and all forms of compensated time off for illness.” It reasoned that because the statute defines “sick leave” as "accrued increments of compensated leave," it only applies to "to employers that provide a measurable, banked amount of sick leave." The Court further found that Section 233 does not apply to policies where it would be impossible “to ascertain, with precision, an employee’s kin care leave entitlement.” The statute bases kin care leave entitlement to sick leave accrued during a six month period. With an unlimited leave policy, it would be impossible to determine the amount of time an employee could use for kin care; therefore, Section 233 cannot apply to these types of policies. The overall impact of the McCarther decision on California workers remains to be seen, but it is clear that the Court is increasingly scrutinizing provisions of the California Labor Code.

If you believe your employer has wrongfully denied you kin care leave or taken adverse action against you for taking kin care leave, you can file a complaint with The California Division of Labor Standard Enforcement. It is also advisable to contact an experienced California labor law attorney for an explanation of your rights and an unbiased analysis of your situation.

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California labor laws and California leave laws are designed to protect employees from unlawful discharge, discrimination and harassment. When an employee gets sick or hurt, it is common for them to sometimes feel that their job may be at stake. This is the reason why employees are covered under federal and California labor laws called the Family Medical Leave Act (FMLA)  and the analogous California Family Rights Act (CFRA), respectively.

Who is eligible?
FMLA/CFRA unfortunately does not cover all employees, only those that:

• Worked at least one year for their employer,
• Worked at least 1,250 hours in the past year, and
• Whose employer has at least 50 employees working within 75 miles of the employee’s worksite

Pursuant to a U.S. Department of Labor June 2007 report , according to the report, the eligibility requirements for FMLA/CFRA indicate that only 76.1 million workers out of 141.7 million total U.S. employees, or 53%, are eligible for FMLA protection (the other 47% have to rely on their employer’s leave policies).

How much medical leave is allowed pursuant to FMLA/CFRA?
Pursuant to FMLA/CFRA rules, workers are entitled to take a maximum of 12 weeks of unpaid medical leave in order to care for a newly born child, a newly adopted child, a serious illness affecting a family member or an illness of their own (pursuant to FMLA, but not CFRA, this does include incapacity due to pregnancy, having a child or a related medical conditions). Employees may be entitled to an extension of leave in addition to the 12 week allowable leave, if the employee has a mental or physical disability that requires the leave to be extended in order to accommodate the disability (subject to the employee making the employer aware of the disability and work restrictions). It is unlawful under federal and California labor laws for employers to treat employees differently or retaliate directly or indirectly for taking medical leave. An employee who takes medical leave also has a right of reinstatement to their same position unless they are a “key employee”.

Is an Employee Entitled to Pay While Taking Leave?
Employees taking leave under FMLA/CFRA (and PDLL)  are not entitled to be paid for this leave.
An employer, however, may voluntarily agree to pay you for all or a portion of uncovered medical leave, or apply your unused sick leave/vacation time.

Medical Leave and California Labor Law Attorneys
Due to the financial strain on many employers, some are seeking ways to downsize staff. It is critical that before taking leave an employee consults with a California labor law lawyer.

If you have questions about medical leave, knowledge is power. It is important to talk to a California labor law attorney to be certain you know your rights.

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Have you ever had a family emergency and had difficulty getting time off work? Well, new legislation could expand the circumstances under which you are entitled to leave from work. February 19, 2010 is the deadline for state legislators to introduce new bills for the year. Because of the state’s dire economic state, the Senate President pro tem Darrell Steinberg  has limited the number of bills that each Senator may introduce. Nonetheless, there are several bills that will be proposed in favor of California workers.

Assembly member Swanson  plans to propose AB 1666 and AB 1667,  which would expand leave under the California Family Rights Act. AB 1666 pertains to sick leave for employees. Under existing law, employees who have had worked for at least one year are entitled to take up to 12 workweeks for family care and medical leave. “Family care and medical leave” is defined as leave for the birth of a child or a serious health condition of the employee or the employee’s child, parent, or spouse. This bill would expand the definition to include any illness that has been declared a national or state pandemic.  AB 1667 would further expand the circumstances for leave to include the serious health condition of a sibling.

The other piece of important legislation is the bereavement leave bill to be sponsored by the California Employment Lawyers Association.  Back in 2007, the California legislature had considered SB 549,  which would have allowed employees to take bereavement leave upon the death of a family member, but the bill was vetoed by the governor. Current California law does not provide leave for employees to grieve, make funeral arrangements, or attend funeral services. Employees who leave work for these reasons are subject to termination without legal recourse. This bill would grant employees up to 4 days of unpaid time off upon the death of a family member without reprisal or discharge. 

If you need to take leave from work, whether it is due to illness, the birth of a baby, or the death of a family member, there are some ways to make the transition easier for both you and your employer.

Strategy:

1. Ask yourself if a leave of absence is absolutely necessary. You may want to consider options such as taking vacation time, sick days, or reducing your hours. 

2. If you are leaving for an extended period of time, take time to consider your budget including everyday expenses and medical bills, if any.

3. Check to see if you qualify for workers compensation, employment insurance, disability benefits, or any other benefits, and make your claim as soon as possible.

4. Notify your boss of your situation and try to make arrangements with your co-workers to cover your duties while you are gone.

5. When you can return, be sure to consider your duties and ability. You may want to ask your employer for reduced hours or more flexible hours.
 

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