In a CER webinar titled “FMLA, ADA, and California Workers’ Comp Overlap: Overcoming New Compliance Conflicts,” Jennifer K. Achtert and Todd B. Scherwin outlined some of the differences between the Family and Medical Leave Act (FMLA)/ California Family Rights Act (CFRA) and other leaves. In particular, they compared FMLA/CFRA to the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) and to workers’ compensation laws.
Each of these employment laws has differing goals, but they do overlap, especially when it comes to administering leave requirements. Here are some ways they differ.
FMLA/CFRA vs. ADA/FEHA
Scherwin advised during the webinar: “for the most part . . . disabilities under ADA and FEHA will likely be serious health conditions under FMLA/CFRA, and serious health conditions under FMLA/CFRA will typically be disabilities under ADA and FEHA, but that’s not necessarily always the case.” For example, someone who may be disabled under ADA/FEHA may need reasonable accommodation to do their job, but that doesn’t necessarily mean this condition will necessitate time off. By the same token, many serious health conditions are not disabilities; this is typically related to short-term injuries or other serious health conditions.
Here is a breakdown of the differences in FMLA/CFRA and ADA/FEHA leaves.
- Are available for employee’s own condition and to care for family members with a serious health condition.
- Limited in duration to 12 weeks (or 26 weeks for servicemember leaves).
- Length-of-service requirements apply for eligibility to begin leave.
- The employer has no undue hardship defense to these types of leave requests; the employer must provide the leave even if it is an undue hardship (assuming the employee is eligible and the employer/location fall within the legal requirements to be subject to FMLA).
- These types of leave may, however, be denied if the employer does not meet the requirement of having 50 employees within 75 miles (to fall under the FMLA/CFRA jurisdiction).
- Are available for employee’s own disability only; the employee cannot take ADA/FEHA leave to care for a disabled family member. The employee can of course use FMLA/CFRA leave for this purpose until it is exhausted; the difference is that no additional leave is available for family member care under ADA/FEHA.
- Leave duration is open-ended as a reasonable accommodation; however, it must be finite in duration.
- There are no length-of-service requirements for eligibility.
- The employer can use an undue hardship defense to deny this type of leave or other accommodation requests.
- The employer is subject to these laws with as few as 5 employees.
FMLA/CFRA vs. Workers’ Compensation
Work-related injuries may be covered by workers’ compensation laws and FMLA/CFRA simultaneously. However, employers frequently forget to designate leave as FMLA/CFRA-qualifying. Scherwin noted: “if somebody’s out on a workers’ comp leave . . . designate the leave as FMLA/CFRA qualifying. What that does for you is . . . prevent them from later having that bank of 12 weeks of FMLA/CFRA leave left if you started that FMLA/CFRA – that 12 weeks counting – when they’ve gone out on their workers’ comp injury.”
If you’re unsure, you can always preliminarily designate the leave as FMLA/CFRA-qualifying and provide the employee with FMLA paperwork. Once you receive the paperwork you can determine for sure whether it qualifies.
Employees on workers’ comp leave and concurrent FMLA/CFRA leave lose their FMLA/CFRA protection after 12 weeks. That means a couple of things for the employer and employee. Firstly, if the employee later needs FMLA/CFRA leave for another reason, they won’t have any left. Secondly, if they are still out after the 12 week period, generally you will be able to suspend benefits like health insurance, and instead refer them to COBRA coverage, saving you these expenses.
Employers also need to remember that at the end of an FMLA/CFRA leave, ADA/FEHA may still apply, and may require additional unpaid leave as accommodation. Additionally, termination may result in a claim of workers’ compensation discrimination under Labor Code 132a in California.
To register for a future webinar, visit CER webinars.
Jennifer Achtert is Of Counsel in the San Francisco office of Fisher & Phillips LLP. (www.laborlawyers.com). Her practice involves employment-related litigation, including defending employers against claims of discrimination, retaliation, wrongful termination, and numerous other torts.
Todd Scherwin is a partner in the Irvine office of Fisher & Phillips LLP. His practice involves representing employers in various aspects of labor and employment law, including employment discrimination, harassment, state and federal wage-hour matters, employment handbook preparation, trade-secret protection and day to day employment matters.