LEAVE LAWS & DISABILITY DISCRIMINATION

1. LEAVE LAWS & DISABILITY DISCRIMINATION Presented by The Department of Fair Employment & Housing, an Agency of the State of California

2. Leave Laws & Disability Laws that May Apply • Leave Laws • Kin Care Sick Leave • Paid Family Leave • Workers’ Comp • FMLA/CFRA • CA Military Spouse leave • USERRA (Uniformed Services Employment & Reemployment Rights Act) • Other Labor Code leaves (jury duty, school activities...) • Disability Leave Laws • ADA (Federal) • FEHA (California) • Pregnancy Discrimination Act (Federal) • Pregnancy Disability Act (California – under FEHA)

3. It’s Complicated • Many leave laws overlap • CFRA incorporates FMLA regulations • But does it incorporate recent changes to these regs? • Employers must adhere to state and Federal laws • Employers must comply with the most employee friendly law

4. Hypo 1 • Wally, an employee of 5 years, was injured at work and the workers comp doctors determined that he is “totally disabled” • One of the essential functions of his job is moving boxes of documents which he can no longer do

5. Hypo 1, continued • Now he wants to return to work. Does his employer have to return him to work after he was out for 10 weeks recovering from his injury?

6. Hypo 2 • In the same year as Wally was out on leave, his 6 year old son, Sam was diagnosed with ADHD • Sam missed several days of school due to behavior problems stemming from ADHD • Sam must see his pediatrician at least 3 more times this year to monitor the ADHD and medications

7. Hypo 2, continued • Can Wally take leave to care for his son if Sam has to miss more school? • What if the 10 weeks leave that Wally took were not for workers comp but were for his own serious health condition?

8. Hypo 3 • Suzie, an employee of 5 years, is pregnant and has severe morning sickness all day. She also has many doctors appointments for prenatal care. • Can she take time off for the above?

9. Hypo 4 • Suzie ended up taking 4 months off during her pregnancy • Now she wants another 3 months to stay home and bond with her baby • Can she do so? • Will her health benefits be affected by the leave she took during pregnancy?

10. Hypo 5 • What if Suzie had only been an employee for 8 months when her severe morning sickness started? • Pregnancy leave? • Bonding leave?

11. California Leave Laws:Kin Care(Labor Code § 233) • If employer offers sick leave, then must allow use for: - Attending to the illness of a child, parent, spouse or domestic partner of the employee ● “Child” includes foster, adopted, step, legal ward, child of domestic partner or child of person in loco parentis; ● “Parent” includes foster, adoptive, step or legal guardian

12. Kin Care Amount of Time Allowed • Employees can use: - One-half of sick leave accrual rate - In a given calendar year ▪ Conditions and Restrictions: - Same as the Employer’s sick leave plan

13. Workers’ Compensation(Labor Code sections 3200 -6145) • Injury or illness occurs while employee is performing services growing out of and incidental to employment and is acting within the scope of employment • Injury is proximately caused by employment

14. Workers’ Compensation Actions and Rules: • Give employee a claim form • Notify the carrier • Non-discrimination for filing a claim • Leaves for work-related disability have no threshold service requirements, no size limits, and may go on almost indefinitely • Reinstatement required unless can prove employee unable to return, or business necessity • Employers must also comply with reasonable accommodation/interactive process requirements of the FEHA

15. FMLA/CFRA Leaves • The Federal Family and Medical Leave Act (FMLA)(29 USC §§ 2601 et seq.; 29 CFR 825 et seq.) • http://www.dol.gov/dol/topic/benefits-leave/fmla.htm • http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/toc.htm • Moore-Brown-Roberti Family Rights Act Also known as The California Family Rights Act (CFRA)(Gov Code §§12945.1 et seq.; Cal. Code Regs., tit. 2, § 7297) http://www.fehc.ca.gov/act/pdf/FEHA_Outline.pdf http://www.fehc.ca.gov/act/pdf/code_regulations.pdf

16. FMLA/CFRA Leaves • CFRA reg 7297.1 says the 1995 FMLA regs are incorporated into CFRA, BUT the FMLA regs were revised in 2009 • 4 Big Differences between FMLA & CFRA • Pregnancy is serious health condition under FMLA but is not a SHC under CFRA (it’s under PDL instead) • Domestic partners are not covered under FMLA • FMLA has “Qualifying Exigency” leave for EE’s or family member’s active military duty • FMLA has leave for care of injured or ill service member • see http://www.fehc.ca.gov/pdf/FMLA-CFRARegsTable-2.pdf

17. Covered Employers • Employers with 50 or more employees within 75 miles of the worksite of the employee requesting leave.

18. Eligible Employees The employee must have worked for at least 12 months (52 weeks); and at least 1,250 hours (actual time worked) in the 12-month period prior to the date the leave begins. (Gov. Code, § 12945.2, subd. (a); Cal. Code Regs., tit. 2, § 7297.0, subd. (e)(1).)

19. What benefit is provided? A leave of up to a total of 12 workweeks in any 12-month period for family and medical leave, with a guarantee of employment in the same or a comparable position upon the termination of the leave. (Gov. Code §12945.2, subd. (a).)

20. Types of Leave • Leave for any of the following: • Family Leave • The birth of a child of the employee or the placement of a child with the employee through adoption or foster care; and • Medical Leave • The “serious health condition” of the employee, or the employee’s child, parent, spouse, or registered domestic partner (CA) • (Gov. Code §12945.2, subd. (c)(3).)

21. Computation of the 12 workweek benefit period “12 workweeks” means the equivalent of 12 of the employee’s normally scheduled workweeks.

22. Intermittent leave Intermittent leave or a reduced work schedule must be permitted by the employer if appropriate. Only the amount of leave actually taken is counted toward the 12 week entitlement.

23. Example Employee needs to be absent from work 2 hours per week for physical therapy. Only those two hours per week can be charged against the employee’s leave entitlement.

24. Definition of Serious Health Condition • An illness, injury, impairment, or physical or mental condition that requires either inpatient care* or continuing treatment or supervision by a health care provider on an outpatient basis. *Inpatient care must involve an overnight stay in a hospital, hospice or residential health care facility

25. Continuing Treatment • A period of incapacity lasting more than three (3) consecutive calendar days, and any subsequent treatment or incapacity due to the same condition; • Incapacity or treatment for incapacity due to a chronic serious health condition; • Permanent or long term incapacity due to an untreatable condition; • and

26. absences for a condition that requires multiple treatments plus any subsequent period of recovery. • (Gov. Code, § 12945.2, subd. (a)(8); • 29 CFR §825.115 )

27. Chronic Serious Health Condition • A chronic serious health condition is one which: - Continues over an extended period of time; and - May cause periodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc. . . )

28. Long Term Incapacity • Defined as a period of incapacity which is permanent or long-term due to a condition which treatment may not be effective • The employee or family member is under the continuing supervision of, but not necessarily being actively treated by, a health care provider due to a serious long-term or chronic condition or disability which cannot be cured;

29. Long Term Incapacity • Continuing treatment by a health care provider for a chronic or longer term condition that is incurable or so serious that if not treated would likely result in a period of incapacity of more than three calendar days.

30. For an employee to take CFRA leave for his or her own serious health condition he/she must be unable to perform the essential functions* of his or her position. • For an employee to take CFRA leave for the serious health condition of her child, spouse or parent, his or her participation must be needed in providing care for that relative. * Defined the same way as when discussing a need for reasonable accommodation.

31. Employee Rights • Leave for up to twelve (12) workweeks in any twelve (12) month period • Maintenance of health care benefits • Retention of employee status • Reinstatement to same or comparable position at conclusion of leave

32. Employee Rights The employee may elect or an employer may require that the employee utilize accrued vacation, sick leave (for the employee’s own serious health condition), or other accrued paid or unpaid time concurrently with a family and medical leave. (Gov. Code, § 12945.2, subd. (e).)

33. Employee Rights The employer shall maintain and pay for coverage under a “group health plan” at the level and under the conditions coverage would have been provided absent the leave. (Gov. Code, § 12945.2, subd. (f).)

34. Employee Rights • The employer shall recover the premium paid only if both of the following occur: • The employee fails to return from leave; and • The employee’s failure to return is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave & other circumstances beyond the control of the employee. • (Gov. Code, § 12945.2, subds. (f)(A),(B).)

35. Employee Rights • The employee retains his/her status as an employee during CFRA leave and that leave does not constitute a break in serve, including for purposes of: • Longevity • Seniority under a collective bargaining agreement • Employee benefit plans • (Gov. Code, § 12945.2, subd. (g).)

36. Employee Rights • The employee returns from CFRA leave with no less seniority than when the leave began for purposes of: • Layoff • Recall • Promotion • Job assignment • Seniority-related benefits, e.g. vacation • (Gov. Code, § 12945.2, subd. (g).)

37. Employee Rights- Reinstatement Employer must provide a guarantee of reinstatement to the same or comparable position (unless the employee is a “key employee” and reinstatement would result in substantial and grievous economic injury) in writing if the employee so requests. (Gov. Code, § 12945.2, subd. (a); Cal. Code Regs., tit. 2, § 7297.2, subds. (a), (c).)

38. Exception Reinstatement may be denied if the employee would not have been employed at the time reinstatement is requested (e.g., position eliminated perhaps due to reduction in work force; the employee would have been selected for layoff; the employee takes leave fraudulently). (Cal. Code Regs., tit. 2, § 7297.2, subd. (c)(1).)

39. Employee Responsibility • Provide employer at least verbal notice sufficient to make the employer aware of the need for leave, including, if known, the timing and duration of the leave without disclosing employee’s specific medical condition, diagnosis, or treatment • Employee need not expressly assert his/her rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement.

40. Employee Responsibility Provide certification, as requested by his/her employer Employers have a right to demand a health-care provider’s certification that an employee or an employee’s child, parent, or spouse has a “serious health condition” (Gov. Code, § 12945.2, subds. (j)(1) and (k)(1); Cal. Code Regs., tit. 2, § 7297.4 , subd. (b).)

41. Certification for Employee’s Own Serious Health Condition For employee’s ownserious health condition: (1) the date the serious health condition commenced (if known); (2) the probable duration of the condition; and (3) a statement that the employee is unable to work or to perform one or more of the essential functions of the job, due to the serious health condition. (Gov. Code, § 12945.2, subd. (k)(1); Cal. Code Regs., tit. 2, § 7297.0, subd. (a)(2).)

42. Next We Look To Discrimination Disability Laws • Is there a disability protected by the Federal American’s with Disabilities Act (ADA) or the Fair Employment and Housing Act (FEHA) which must be accommodated?

43. Applicable Disability Discrimination Laws • Federal American’s with Disabilities Act (ADA) (42 USC § 12101 et seq.) • California Fair Employment and Housing Act (FEHA) (Gov. Code § 12900 et seq.) - Both prohibit discrimination against qualified individuals with a disability

44. The Fair Employment and Housing Act(Gov. Code § 12900 et seq.) Prohibits discrimination in employment on the bases of: • Physical disability • Mental disability • Medical condition

45. § 12926.1, subd. (a) • California provides protections independent from those in the federal Americans with Disabilities Act • California has always provided broader protections than the federal statutory scheme.

46. § 12926.1, subd. (b) California prohibits discrimination: • Against job applicants & employees • On the basis of actual or perceived disability

47. § 12926.1, subd. (c) Under California law, the following are disabilities: • Clinical depression • Bipolar disorder • Multiple sclerosis • Heart disease • HIV/AIDS • Hepatitis • Epilepsy or seizure disorder • Diabetes

48. § 12926.1, subd. (c) • California law: Disability limits a major life activity. • Federal law: Disability substantially limits a major life activity. “Limits” = makes the achievement of a life activity difficult.

49. § 12926.1, subd. (c) “Working" is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments.

50. “Medical Condition” defined§ 12926, subd. (h) A health impairment related to a diagnosis of cancer (or a record or history of cancer) ~ or ~ A genetic characteristic known to statistically increase the risk of development of a disease or disorder, but which is not presently associated with any symptoms of the disease or disorder