Yesterday, Jim Brown of Sedgwick, LLP, ran down 5 tips to help you properly coordinate workers’ comp leaves. Today, the rest of the top 10—plus a California leaves resource that’s been fully updated for 2012.
6. Medical privacy rights, medical certification rules
Because of privacy rights and statutory obligations, these rules create many pitfalls and vary significantly depending on the type of leave.
Both the FMLA and CFRA allow you to request certification from an employee taking leave because of his own serious health condition. However, the CFRA, unlike the FMLA, doesn’t allow you to seek the diagnosis of the serious health condition. Under the ADA or FEHA, you may request medical information when the employee has requested a reasonable accommodation and as part of the interactive process.
When you have a workers’ comp carrier, the carrier will be kept informed of all medical developments, and the information won’t be provided to you. Self-insured employers must comply with detailed laws protecting the privacy of such medical information. There is an exception, however, when medical information identifies work restrictions.
Both federal and state law requires you to maintain the confidentiality of records and documents concerning medical information, including medical certifications. That means keeping files separate from the personnel file and restricting access to any medical information.
7. Benefits often must be continued during each leave type
The extent to which an employee is entitled to a continuation of benefits during leave differs depending on the type of leave. For example, you must maintain coverage under any group health plan for employees on FMLA and/or CFRA leave. By contrast, neither the FEHA nor the ADA requires you to provide any particular benefits to employees on a “reasonable accommodation” medical leave as long as you don’t discriminate in the provision of benefits.
Although the Workers’ Compensation Act doesn’t expressly provide for the continuation of healthcare benefits during an industrial leave, employees sometimes claim that the termination of benefits during leave is discriminatory.
How To Comply with California and Federal Leave Laws—newly updated for 2012!
The Workers’ Compensation Appeals Board has expressly held that you can discontinue benefits in keeping with the terms of an Employee Retirement Income Security Act (ERISA)-based health plan as long as you don’t discriminate between employees with industrial and nonindustrial injuries. Although the extent to which non-ERISA plans can be discontinued isn’t as clear, it’s likely that this would be lawful as long as you don’t discriminate between employees with industrial and nonindustrial injuries.
8. Fitness-for-duty, similar medical exam certifications
With limited exceptions, you usually can require some form of fitness-for-duty certification before an employee returns to work. The FMLA and CFRA generally allow you to request that employees present fitness-for-duty certifications before they return to work, provided that such a policy is uniformly enforced. The ADA and FEHA allow you to request fitness-for-duty certifications if you can establish a business necessity for the certification.
9. Right to return to work, extent of reinstatement obligations
An employee’s right to reinstatement depends on the type of leave taken. Under the FMLA and CFRA, with limited exceptions, an employee returning from leave must be reinstated to the same or an equivalent position.
Under the ADA and FEHA, you must generally reinstate an employee to the same position or an equivalent one unless an “undue hardship” would result. Under each statute, there is likely an obligation to use temporary employees or share the workload with existing employees. Any situation in which a replacement employee is preferred over reinstating the injured employee must be reviewed very carefully.
You may terminate an employee on workers’ comp leave only if you reasonably believe the worker is permanently disabled from performing the job or will be disabled for such a long time that termination is necessary in light of demonstrated business realities.
10. Paid leave, paid leave benefits obligations
Both the FMLA and CFRA provide for unpaid leave. You generally can require the substitution of certain types of paid leave, such as sick leave and vacation, while an employee is on an unpaid leave status, and employees can generally use paid leave for otherwise unpaid leave consistent with the terms of your various paid leave policies.
An employee can substitute paid sick leave for otherwise unpaid FMLA leave consistent with the terms of your sick leave policy. You must permit employees to substitute paid sick leave for their own unpaid medical leave under the FMLA and CFRA, and you can require employees to use sick leave for their own medical leave under those laws.
Confused about an important leave-related issue? Don’t be.
In addition, you can require (and must allow) employees to use paid vacation or paid time off during otherwise unpaid FMLA and CFRA leave.
Employees who otherwise qualify for workers’ comp or other paid disability leave can be required to take the leave concurrently with FMLA and CFRA leave. However, since employees receiving paid temporary disability or workers’ comp benefits aren’t considered to be in unpaid status, you can’t require use of paid leave for any period in which such leave runs concurrently with FMLA and CFRA leave.
On the other hand, FMLA regulations permit you to let employees use paid leave to supplement temporary disability benefits or workers’ comp payments to the extent allowed by state law.
Neither the ADA nor the FEHA requires you to grant paid leave as an accommodation, as long as you don’t discriminate in the provision of paid leave benefits.
As with the ADA or FEHA, the Workers’ Compensation Act doesn’t require you to pay wages to employees on workers’ comp leave as long as you don’t discriminate in the provision of paid leave benefits. Instead, employees on workers’ comp leave are entitled to temporary disability insurance benefits and may be entitled to permanent disability benefits. An employee’s use of previously accrued but unpaid benefits such as vacation and sick leave shouldn’t generally affect his ability to receive workers’ comp benefits.
Leave Mistakes: Better Prevented Than Remedied
The best way out of a sticky leave-related dispute is to avoid getting embroiled in it in the first place. And to do that, you need current, complete info on the web of state and federal leave laws that apply to you in California—as well as clear explanations of how they interact with one another.
That’s why we’re thrilled to offer you our comprehensive, newly updated HR Management & Compliance Report: How To Comply with California and Federal Leave Laws.
It covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional.
This information-packed 122-page guide, written by an experienced California employment lawyer, features in-depth coverage of all the topics you need to know about in an easy-to-read, quick-reference style:
- Overview of California and federal leave laws
- Pregnancy and parental leaves
- Required notices
- Employee notifications of illness, injury, or disability
- Responding to leave requests
- Computing leave entitlement duration
- Medical exams and inquiries
- Reinstating and terminating employees
- Leave for military members’ families
- Avoiding leave-related bias claims
- And much more!
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Download your free copy of Notice Requirements for CFRA and FMLA: California Labor Laws today!