California Public Agency Labor and Employment Blog - Useful Information for Navigating Legal Challenges

This guest post was authored by Steven Tang

FMLA-covered entities will soon have to update their FMLA materials. The U.S. Department of Labor (DOL) recently expanded and revised FMLA regulations with the changes going into effect March 8, 2013.

The new regulations expand leave rights for family military leave and clarify rules for the application of FMLA leave to airline personnel and flight crews. The DOL created a convenient side-by-side comparison chart of the previous and newly expanded regulations to explain the differences.

The DOL has also provided an updated FMLA Poster, which covered entities must post by March 8, 2013.  And we at LCW know the first thing you think about when you hear about new regulations… new paperwork!  Not to worry –  New certification, notification, and designation forms for military family employees are also available.

You may find all of the above linked information and other resources here: http://www.dol.gov/whd/fmla/2013rule/

The blog FMLA Insights recently commented on how to calculate FMLA leave during a week when a holiday occurs or when the employer is closed for a period time.  Since we also get questions about this issue during the holiday season, we wanted to pass along some rules on this topic.

HOLIDAYS

Even if a holiday occurs within a work week during which FMLA leave is taken, the week is still counted as one week of FMLA leave and counts towards the employee’s 12 week maximum eligibility.  The fact that a holiday occurs within a week taken as FMLA leave has no effect.  For example, Christmas falls on a Sunday this year but will be observed on Monday, December 26th.  If an employee happens to be on FMLA leave during the entire week Christmas is observed, that full week should be counted as one full week of FMLA leave.

However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA leave entitlement unless the employee would otherwise be scheduled and expected to work on the holiday.  For example, if an employee does not work Monday because of Christmas, but works Tuesday and Wednesday, and then takes FMLA leave on Thursday and Friday, the employer can only count the two days taken off in the work week as FMLA leave.  The employer may not count the holiday.

OFFICE CLOSURES AND SCHOOL BREAKS

Many offices close between Christmas and New Year’s Day.  In addition, many school districts, colleges and universities take extended winter and summer breaks.  If an employer closes for a week or more and employees are not expected to report to work, then the days the employer’s activities have ceased operation do not count against the employee’s FMLA allotment.  

SPECIAL RULES FOR SCHOOL EMPLOYEES

For employees who work in education, the holidays coincide with the end of the first school semester.  FMLA has special rules that apply to “instructional employees” of public and private elementary and secondary schools who wish to take FMLA leave around this time.  There rules are designed to limit disruption to the educational process.  The FMLA defines “instructional employees” are those whose primary function is to teach and instruct students. 

If an employee begins FMLA leave for their own serious health condition more than five weeks before the end of the semester, the school may require the employee to remain on leave until the end of the term if the leave lasts at least three weeks and the employee would otherwise return to work during the three week period before the end of the semester. 

For an employee who takes FMLA leave for any qualifying reason other than the employee’s own serious health condition, the school may require the employee to remain on leave until the end of the semester if the employee begins leave less than five weeks before the end of the term.  The leave period must also be longer than two weeks and the employee would otherwise return to work during the two week period before the end of the semester.  However, if the employee begins FMLA leave less than three weeks before the end of the semester, then the school may require the employee to remain on leave until the end of the term if the leave lasts more than five work days. 

Finally, if the school requires the employee to remain on leave until the end of the semester, only the period of leave until the employee is ready and able to return to work shall be charged against the employee’s FMLA leave entitlement.  For example, assume today is exactly three weeks (or 15 work days) before the end of the semester and a teacher submits a request to take seven days of FMLA leave to care for an ill parent.  Although the school has the discretion to require the employee to remain out on leave until the end of the semester, the school may only count seven days as FMLA leave.

The federal Family and Medical Leave Act of 1993 (FMLA) and the California Family Rights Act of 1993 (CFRA) provide leave and maintenance of health benefits to eligible employees in three situations.  First, leave is permitted for the serious health condition of an employee or a listed family member.  Second, leave is permitted for prenatal care, bonding with a newborn, and birth or placement for adoption or foster care of a child.  Third, under the FMLA, leave is permitted to attend to a “qualifying exigency” or to care for a covered servicemember with a serious injury or illness.  Employees who are eligible may exercise up to 12 workweeks of protected, unpaid leave in a 12-month period of time. 

An eligible employee who exercises CFRA or FMLA leave must generally be guaranteed a return to their position at the end of the leave.  Further, employees return with a guarantee that they will not suffer any adverse employment actions, including but not limited to failure to be reinstated to a comparable position held before the leave commenced.

On August 16, 2011, in Rogers v. County of Los Angeles, the California Court of Appeal held that employees are not entitled to reinstatement to their jobs if they return to work after expiration of the 12-week leave period protected under CFRA.

In Rogers, the plaintiff had worked for the L.A. County for many years as a personnel officer in the executive office.  The executive office was responsible for providing administrative and other support services to the County Board of Supervisors and its various commissions.  On April 3, 2006, Rogers began a medical leave for “work-related stress,” which she claimed resulted from some unidentified “attack on [her] integrity.”  She claimed this “stress” manifested in her “crying at work, not being able to sleep or eat, and causing her blood pressure to become ‘out of whack.’”  Although CFRA only provides for 12 workweeks of protected leave in a 12-month period of time, Rogers remained off work for a total of 19 weeks.

In May 2006, while Rogers was out on CFRA leave, the County appointed a new director of the executive office.  The new director implemented changes to the organization of the department to make it run more efficiently.  As part of the new director’s efforts to reorganize the department, she decided to bring in a new personnel officer to replace Rogers because she “felt that somebody outside the organization would come in and would be independent, objective, maybe perhaps could provide some fresh eyes into the organization.”  

Upon returning to work following her leave, a high-level human resources position was specially created for Rogers in a different department with no loss of pay or benefits.  Despite this, Rogers refused to accept the new position, claiming that it was a “demotion” and a “slap in the face,” and that she was “devastated,” “embarrassed,” “humiliated,” “hurt,” and “disappointed” by the proposed offer. 

Rogers sued, alleging that the County interfered with her CFRA reinstatement rights; and that the County retaliated against her for exercising her leave rights under the CFRA.  The County ostensibly conceded that the new job involved “very different” duties and was not “comparable” to plaintiff’s previous position.  However, the evidence established that the decision had nothing to do with plaintiff exercising CFRA leave rights.  After the jury trial, Rogers prevailed and was awarded $356,000 in damages. 

The Court of Appeal reversed, holding that it was not possible for the County to have interfered with Rogers’ reinstatement rights because an employee only has that right when she returns to work on or before the expiration of the 12-week maximum protected leave period.  Rogers did not return to work for 19 weeks.  Accordingly, the Court held, the County had no obligation to reinstate Rogers at all or to assign her to a comparable position.  In addition, the Court held there was no evidence Rogers was offered a new position as a form of retaliation for exercising her rights to CFRA leave.  The evidence at trial established that the County had a legitimate and non-retaliatory reason for its decision to transfer Rogers to a newly created position.  Specifically, the new director’s decision was based solely on her plan to reorganize the executive office.  As such, the County did not take any actions that ran afoul of its obligations under the CFRA.

Rogers is instructive for those agencies faced with employees who seek to stay out on leave past the protected 12-week period of time under CFRA leave.  Although we recommend that such matters generally be evaluated on a case by case basis, the Rogers case is yet another tool for employers to rely on in addressing issues relating to employees who seek to take leave time that falls outside of the protected 12-week period of leave allowed for under CFRA.  Although this decision interpreted California law, the CFRA, we suspect federal courts would construe FMLA in a like manner.

We get questions…

An employer called with this inquiry: “one of our employees has been on leave under The Family & Medical Leave Act (FMLA) for a serious health condition and the 12 weeks have expired.  The employee has not come back to work and the most recent medical note states that the employee will not be able to return for another two months.  Can we fire this employee?”

If all we had to worry about was FMLA then the answer may be yes.  However the answer is quite likely no for one or more reasons unrelated to FMLA.  First, if the serious health condition was at all work-related or work-aggravated then a termination may constitute discrimination for having had a worker’s compensation covered injury or illness.  Generally, however, terminating the employee automatically after expiration of FMLA leave might create a violation of the Americans with Disabilities Act (ADA). 

Issues of ADA and leaves of absence as reasonable accommodation were discussed at a meeting of the U.S. Equal Employment Opportunity Commission (EEOC) this June 8 in Washington D.C.  It is well known that under ADA, as well as under state laws like California’s Fair Employment and Housing Act (FEHA), an employer must provide a reasonable accommodation to a disabled employee if the accommodation will allow the employee to perform the essential functions of the job.  As the EEOC discussed earlier this month, that accommodation may frequently be additional leave of absence.  As the Chair of the EEOC stated,

“a period of leave - whether for medical treatment, recovery, or training to use adaptive equipment - is often the reasonable accommodation that permits a person with a disability to remain gainfully employed.”

Thus, the law may require an additional leave of absence beyond the 12 weeks permitted by FMLA if the employee’s condition constitutes a disability, a term which is defined in California so broadly that it covers almost any health condition that interferes with the performance of the job.  It has also been made clear that the leave of absence need only be “reasonable,” it need not be indefinite.  However, the burden would be on the employer to establish a business necessity why it could not provide the more lengthy leave of absence.

We advise our clients that it is unwise to have an inflexible leave policy that calls for automatic termination once the maximum amount of leave expires.  Every case must be treated on an individualized basis and the “interactive dialogue process” called for in the FEHA should be utilized to involve a discussion directly with the employee about these issues.  Further, the opinion of the employee’s physician must be taken into account. Employers should never “play doctor.”  Further, when deciding whether an employee is medically able to return to work, employers should never have a requirement that the employee must be able to return to work without restriction.  Both ADA and FEHA require reasonable accommodation to an employee’s restrictions if possible, unless this creates an undue hardship for the employer. This may require job restructuring, reassignment of duties or other measures as long as the employee still can perform the essential functions of the job. Establishing undue hardship is very difficult. Cost alone does not make a hardship “undue.”

Finally, and perhaps most importantly, the individuals at your agency or company assigned to engage in this analysis and make these decisions should be adequately trained in ADA concepts and procedures.  We have encountered a number of agencies who leave these decisions to worker’s compensation administrators who, while highly trained in that field, are lacking in ADA/FEHA knowledge. 

An industry has developed of attorneys keen to file lawsuits against employers alleging violation of ADA and FEHA alleging disability discrimination.  Your job is to be proactive to prevent situations from developing which could expose your agency or company to litigation and potential liability.

Every once in awhile we run across an unexpected twist in the law.  This happened recently when a client called asking how much “baby bonding leave” the agency must provide where two of its employees, who were not married to each other, had just become parents.

As you know, under both the federal law, FMLA, and its California equivalent, CFRA, an employee who meets certain conditions is entitled to take off up to 12 weeks in a year for various reasons, one of which is because of the birth of a child.  Both parents are entitled to the leave, not just the mother.

There are special provisions for situations where both parents work for the same employer.  Under California law, the employer of both parents can limit the amount of leave taken by both parents to 12 weeks total.  Thus, under California law the parents are not entitled to 12 week each.  The statute does not require that the parents be married to one another.  California law also prohibits discrimination on the basis of marital status.

Federal law is more specific.  The 12 week limitation where both parents are employed by the same concern only applies where the parents are husband and wife!  Thus, under FMLA, an employer can limit baby bonding leave to 12 weeks total for the parents if they are married to one another.

What happens under federal law if the parents are unmarried?  Apparently each parent is entitled to his and her own 12 weeks of leave time.

Thus, under federal law, unmarried parents are entitled to more leave time to take care of a new baby than are married parents where both parents work for the same employer.

Did Congress intend this result?  Highly doubtful!  Nonetheless, this is the result of the legislation.  Who knew?