This post was authored by Michael Youril.
Leaves of absences are one of the most complex and frustrating areas of personnel management that public agency employers face. There are several complex, overlapping, and intersecting laws to apply and navigate. In many situations, it is difficult for the agency to determine its rights and obligations.
Employers must determine if a leave is protected under the Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”), the Paid Sick Leave Law, kin care, the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act (“FEHA”). The workers’ compensation system and the agency’s retirement system can also create additional obligations for the employer. Violating an employee’s rights under any of these various leave and disability laws, among others, may subject the agency to expensive lawsuits and liability. At the same time, employers have a need to determine whether an employee is going to return to work and to address its staffing needs.
A common problem employers face are long-term leaves created through the “serial note.” An employee may turn in a doctor’s note putting them off for a short period of time that can be accommodated by the employer. However, when the leave is coming to an end, the employee turns in another note extending the leave by a similar period. This pattern can go on for months or years and it becomes uncertain when, if ever, the employee will return from leave. Employers face further uncertainty because each leave viewed in isolation appears to be reasonable and finite, but when viewed in its totality creates a hardship and is indefinite.
Employers are often uncertain what rights and obligations they have when an employee is on a leave of absence and are left with many unanswered questions. When can the employer request more information regarding the employee’s leaves or work restrictions? How can the employer request more information with violating leave and disability laws or the employee’s privacy rights? When should leave be provided as a reasonable accommodation and when is it no longer protected under disability and leave laws? When is another interactive process meeting necessary?
Answering these questions and navigating the various laws often requires a long-term strategy and requires an adaptive multi-step approach. Agencies must make a case-by-case assessment while still trying to maintain consistency in the way it manages leaves for all of its employees. Employee leaves are highly fact specific, but a differing treatment of similarly situated employees may leave the agency open to discrimination or retaliation lawsuits.
Public agencies subject to the California Public Employees’ Retirement System (“CalPERS”) and the County Employees Retirement Law of 1937 (“CERL” or “’37 Act”) also must determine when they have an obligation to apply for disability retirement on behalf of an employee. Under these systems, an employer cannot separate a vested employee for disability. Instead, they must apply for disability retirement on the employee’s behalf and must often take preliminary steps to ensure that the agency has satisfied its obligation under disability laws and afforded the employee due process when required.
We are here to Help!
LCW is offering a leave of absence review program to assist agencies in developing a tailored, proactive approach to managing employees who are on long-term leaves of absence. We will provide specific advice and strategies to address each employer’s needs and every employee’s circumstances. These services include reviewing agency-wide leave concerns and policies, reviewing medical documentation for sufficiency and necessary follow-up, reviewing specific leaves of absence, engaging in the interactive process, developing best practices protocols, and navigating the disability retirement process. For more information on LCW’s leave review program, visit www.lcwlegal.com/leaves-management.
We also recently hosted a webinar on this topic – Proactive Leave Management and Addressing Long-Term Leaves of Absence. For more information or to register, visit our website.