Navigating the complex interactions between the FMLA and CFRA

Can You Navigate the complex interactions between the FMLA and CFRA?

When navigating the complex interactions between the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), it is critical for California employers to be aware of the key differences between the laws.

Many employers wrongly assume that because the basic principles of FMLA and CFRA are similar, the two leaves are essentially the same and can be administered as such. It is true that both leaves provide up to 12 weeks of unpaid protected leave for an employee’s own serious medical condition or to care for a family member with a serious medical condition. Eligibility requirements for both FMLA and CFRA are similar and include: must be employed for 1 year and must have worked at least 1,250 hours in the past year.

The significant differences between the laws that employers should be aware of include:

1. CFRA has much higher standards regarding employer requests to medical providers. Employers may not unilaterally contact the employee’s healthcare provider, except to authenticate a medical certification:

1. Medical certification forms cannot seek identification of symptoms or diagnosis from the health care provider.
2. When an employee is on CFRA leave to care for a qualifying family member, employers are not permitted to ask for a second opinion for the family member’s medical condition.
3. Employers can only ask for a second opinion for an employee’s own serious medical condition if the employer has a good faith, objective reason to do so.
4. Employers may only ask for recertification of the employee’s medical condition if the original certification expires (and “lifetime” certifications do not expire).

2. FMLA is much more lenient regarding requests to medical providers:

1. The employer may request a diagnosis and may require a second opinion if there is doubt as to the validity of the medical.
2. Employers may contact the healthcare provider for clarification on a medical certification.
3. Recertification of the employee’s medical condition may be sought at least every six months.

3. Pregnancy is not considered a serious health condition under CFRA:

1. California employees are entitled to Pregnancy Disability Leave (“PDL”) for up to 4 months and additional CFRA leave for “baby bonding” for up to 12 weeks.
2. A California employee may take up to 7 months leave (between PDL and CFRA) for a pregnancy-related disability and subsequent baby bonding.

4. Employees are only entitled to 12 weeks of FMLA leave, which covers both pregnancy disability and “baby bonding.” FMLA and PDL run concurrently.

5. Employees who take CFRA leave to care for a qualifying family member cannot be required to use accrued sick leave but the employee may request to use sick leave if they wish.

1. California’s new Mandatory Paid Sick Leave Law allows an employee to decide when paid sick leave is used and restricts the employer’s ability to require an employee on CFRA leave to use paid sick leave.
2. The best practice is to permit an employee to use paid sick leave if requested, but not require paid sick leave to be used during CFRA leave.

6. If the employee requires CFRA leave for his or her own serious health condition, the employer may require the employee to use accrued sick leave.

7. Under FMLA, regardless of the reason for leave, an employer may require employees to use accrued paid sick leave during unpaid FMLA leave.

Employer’s should review their current procedures regarding administering FMLA and CFRA leaves to ensure they are compliant with the subtleties of each law.

Need help reviewing your leave procedures? Call eqHR today!

Lauren Sims is the author and a principal HR Consultant with eqHR Solutions.

Whenever you require HR advice or help navigating the ever-changing landscape of California and Federal Employment Laws and Regulations, call our consultants for a no obligation consultation.

eqHR Solutions is a leading human resources consulting firm providing tactical and strategic human resources support, plus ADP payroll product training, for all size businesses in Southern California and the San Francisco / Bay area.

What is the Key to Terminating an Employee

When Terminating an Employee: Consistency is Key

Whether it’s a termination, constructive discharge, layoff, or forced resignation, ending an employment relationship can be tricky and you should navigate carefully and make sure you are properly prepared.

Knowing when to terminate an employee is just as important as knowing how to terminate an employee. Even though most employment relationships are “at-will,” meaning you can terminate the employee at any time, what you say and do during the employment relationship can expressively impact how you handle employees before terminating them.

It’s important to remember that any discipline including termination must be applied consistently among all employees.

For example, if you suspend employee A for misconduct but terminate employee B for engaging in the same misconduct, you may find yourself in a difficult position.

Inconsistent termination practices are difficult to justify and an employee may try to argue that he or she received more severe discipline due to a protected characteristic such as race or gender. In a lawsuit, employee B can easily suggest that his dismissal must have been for some illegal reason rather than for his misconduct. While you can attempt to offer an explanation for the inconsistent treatment, it will be difficult to prove, especially if you do not have proper documentation.

In addition to maintaining consistent termination practices, you should ensure that you keep a written record of all discipline. Even if the employee only receives a verbal warning, there should be some note in their personnel file.

Written records make it easier to show a jury or judge how you advised employees that their conduct was unacceptable and gave them another chance. It’s difficult to later argue that you based your termination on the employee’s conduct when there’s no record that you ever disciplined the employee for the issue.

You should look at every termination decision you make from all angles and determine whether it could be misconstrued to support an employee’s claim.

Lauren Sims is the author and a principal HR Consultant with eqHR Solutions.

Whenever you require HR advice or help navigating the ever-changing landscape of California and Federal Employment Laws and Regulations, call for a no obligation consultation.

eqHR Solutions is a leading human resources consulting firm providing tactical and strategic human resources support, plus ADP payroll product training, for all size businesses in Southern California and the San Francisco / Bay area.

Reminder - Have you posted the revised Pregnancy Disability Leave Notice?

California's New Pregnancy Disability Leave Notice

If you have at least 5 employees, be aware that amendments to California’s Fair Employment and Housing Act (FEHA) regulations have been approved and took effect on April 1, 2016. Employers will be required to post a new Pregnancy Disability Leave (PDL) notice.

The amendments to regulations include changes to the PDL poster, “Your Rights and Obligations as a Pregnant Employee”, as well as clarifications of the pregnancy disability leave requirements.

California’s pregnancy disability leave laws apply to any employer with five or more full-time or part-time employees and to all California public sector employers.

Covered employers are required to post a specific notice to employees explaining their rights and obligations regarding pregnancy, childbirth or related medical conditions.  The notice includes information about:

• An employee’s right to request reasonable accommodation, transfer or pregnancy disability leave.
• An employee’s obligations to provide adequate advance notice.
• The employer’s requirement, if any, that the employee provide medical certification of the need for pregnancy disability leave, reasonable accommodation or transfer.

The revised notice was required for covered California employers beginning April 1, 2016.

Other items covered in the amendment include:

• Further definition of who is considered an “employee”
• For the purposes of determining whether an employer meets the minimum 5 employees requirement, employees do not have to be working in CA to count toward the 5 employee number
• Also when determining whether an employer meets the minimum 5 employees requirement, employees on leave of absence, CFRA leave, disciplinary or other leave are counted
• “Eligible female employee” includes a transgender employee who is disabled by pregnancy
• Employees are eligible for up to four months of leave per pregnancy, not per year
• Employers shall post and keep posted the appropriate notice on its premises, in conspicuous places where employees are employed. The notice shall explain the Act's provisions and provide information about how to contact the Department of Fair Employment and Housing to file a complaint and learn more about rights and obligations under the Act
• The poster and the text must be large enough to be easily read and contain fully legible text.
• Electronic posting is sufficient to meet this posting requirement as long as it is posted electronically in a conspicuous place or places where employees would tend to view it in the workplace

For more information, visit the Department of Fair Employment and Housing website at http://www.dfeh.ca.gov/res/docs/FEHC/FinalText.pdf

Lauren Sims is the author and a principal HR Consultant with eqHR Solutions.

Whenever you require HR advice or help navigating the ever-changing landscape of California and Federal Employment Laws and Regulations, call for a no obligation consultation.

eqHR Solutions is a leading human resources consulting firm providing tactical and strategic human resources support, plus ADP payroll product training, for all size businesses in Southern California and the San Francisco / Bay area.