FMLA, CFRA, PDL, WC and ADA:Deciphering the Alphabet Soup of Leave Requirements

Lisa E. Aguiar

FMLA, CFRA, PDL, WC and ADA:Deciphering the Alphabet Soup of Leave Requirements

Lisa E. Aguiar

Mandatory Leaves/Time OffMandatory Leaves/Time Off

Medical/family care School Voting Military Jury/witness Crime/domestic violence/sexual assault “Kin care” Emergency duty

Mandatory Leaves/Time OffMandatory Leaves/Time Off

Medical and Family Care► Family and Medical Leave Act (FMLA):

• 50+ employees► California Family Rights Act (CFRA):

• 50+ employees► Pregnancy Disability Leave (PDL):

• 5+ employees► Workers Compensation (WC):

• All employees► Paid Family Leave (PFL):

• All employees

Mandatory Leaves/Time OffMandatory Leaves/Time Off

School► Employees entitled to 40 hours per

year to participate in school activities:•25+ employees•Can limit leave to no more than 8 hours

per month•May require use of accrued vacation,

personal leave or PTO

Mandatory Leaves/Time OffMandatory Leaves/Time Off

Voting► Must grant up to 2 hours off to

vote:•All employees

► No requirement to pay employees

Mandatory Leaves/Time OffMandatory Leaves/Time Off

Jury/Witness► Must grant leave to employee who

is summoned to jury duty: all employees

► Payment of wages•Non-exempt: no requirement to pay•Exempt: no deductions (but may be

offset with jury pay)

Mandatory Leaves/Time OffMandatory Leaves/Time Off

Sick leave for “Kin care”► If employers offer sick leave must

allow employees to use half their annual accrual to care for a sick child, parent, spouse, etc.: all employees

► Interplay with FMLA/CFRA

Mandatory Leaves/Time OffMandatory Leaves/Time Off

Emergency Duty► Must grant temporary leave of

absence to employees engaged in voluntary fire or law enforcement training: All employees

► Length of leave: up to 14 days per year

Workers’ Compensation Leave Must be Provided When:

Workers’ Compensation Leave Must be Provided When:

Employee is employed by employer at time of injury

Employee was acting within course and scope of employment when injured

Employee’s injury is caused by the employment, either with or without negligence

Caution: Workers’ Compensation may cover injuries at home

Reinstatement of Injured Employee

Reinstatement of Injured Employee

Does FMLA/CFRA apply? Reinstate to same or similar

position Engage in discussions re:

necessity for accommodation

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

California Family Rights Act (CFRA)

Applies to employers with 50 or more employees

Requires employer to allow qualified employees to take 12 weeks of leave in a 12 month period for the:

► Birth/adoption of a child► Employee’s own serious health condition► To care for certain family members who

have a serious health condition

Benefits and Other Requirements

Benefits and Other Requirements

Must continue to provide medical benefits

May require use of vacation or PTO (must have policy)

► Except if receiving other benefits (SDI, PFL, etc.)

May require use of sick leave if for the employee’s own serious health condition

Must reinstate to same or comparable position

► (Exception for key employee)

Pregnancy Disability Leave (PDL)

Pregnancy Disability Leave (PDL)

Applies to employers with 5 or more employees

Requires employers to grant up to 4 months leave for a disability related to pregnancy

Interplay between FMLA, CFRA and PDL

Benefits and Other Requirements

Benefits and Other Requirements

Not required to continue medical/dental benefits (unless continued for other temporary disability leaves)

May require use of sick leave (must have policy)

May not require use of vacation or accrued PTO (employee may use at her option)

Must reinstate to same position

Paid Family Leave (PFL)Paid Family Leave (PFL)

Family temporary disability insurance program that provides employees up to 6 weeks of partially paid leave per year to:► Bond with a newborn or adopted

child, or► Care for a seriously ill family

member

Key Components of PFLKey Components of PFL

No minimum hours/days worked requirement

Employers may require use of two weeks of vacation

One week waiting period

Americans with Disability Act (ADA)

Fair Employment and Housing Act (FEHA)

Americans with Disability Act (ADA)

Fair Employment and Housing Act (FEHA)

Requires business with 5 (FEHA) and 15 (ADA) or more employees to reasonably accommodate disabled individuals in hiring, firing, benefits and other terms, conditions and privileges of employment

ADA/FEHAADA/FEHA

Protects a qualified individual with a disability: An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires

What is a Disability?What is a Disability?

Has a physical or mental impairment that limits a major life activity

Has a record of such impairment Is regarded as having an

impairment

What is an “Essential Function” of a Job?

What is an “Essential Function” of a Job?

The fundamental job duties of the position

The reason the job exists is to perform that function

Employer always determines the essential functions of a job

Reasonable Accommodation

Reasonable Accommodation

Any modification or adjustment in a job, an employment practice, or the work environment that allows an individual with a disability to enjoy an equal employment opportunity

Examples of Reasonable Accommodation

Examples of Reasonable Accommodation

Job restructuring Part-Time or modified work

schedules Reassignment to a vacant position Acquiring or modifying equipment

or devices Leave

FMLA, CFRA, PDL, WC and ADA:

Deciphering the Alphabet Soup of Leave Requirements

FMLA, CFRA, PDL, WC and ADA:

Deciphering the Alphabet Soup of Leave Requirements

Lisa E. Aguiar, Esq.Ropers Majeski Kohn & Bentley50 West San Fernando Street

Suite 1400San Jose, CA  95113

(408) 918-4555laguiar@rmkb.com