Curbing FMLA/CFRA abuse is complex. Employers must continue to meet their obligations to employees under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), yet they often fear claims of discrimination, harassment, or retaliation when rightfully trying to cut down on employee FMLA/CFRA abuse situations. Additionally, the case law and legislation changes keep employers on their toes. In a recent CER webinar, Michelle Abidoye outlined some recent case law and legislation – take a look and see how these may apply to you.
CFRA and Job Reinstatement
In the case of Rogers v. County of Los Angeles, the employee, Rogers, took leave for work-related stress and the leave was properly classified as CFRA leave. The employer had organizational changes, which required Rogers to transfer to another department. Rogers did not come back during the 12 week period – she instead returned to work 19 weeks later. As such, the reinstatement right no longer applied.
They did give her a position to come back to, but it was not equivalent pay and benefits. She felt she was discriminated against and sued the County for violation of her CFRA rights. In the original case, a jury awarded her $356,000. However, the Court of Appeal reversed the judgment because she did not return within 12 weeks and thus was not entitled to the same job.
This is very relevant for employers because the lower court decision was not favorable to the employer, but the Court of Appeal opinion was. “This is something where the court really took a pretty hard line – which I know is good news for California employers – to know that if the employee does not return in the 12 weeks they are not going to be entitled to the same job and the same pay.” Abidoye explained.
Going Too Far with Attempts to Stop FMLA/CFRA Abuse
In November 2010, the Department of Fair Employment and Housing (DFEH) announced a $6 million settlement with Verizon to settle a class action lawsuit for allegedly violating FMLA/CFRA by delaying or denying employee’s requests for leave and improperly disciplining employees who took leaves of absence. This is a bit of a cautionary tale for employers on the importance of ensuring “that the people who are implementing your FMLA and CFRA leave are doing it in a consistent and legal manner because the consequences of not doing that can be huge.” Abidoye warned.
This is on the other side of the spectrum from curbing FMLA/CFRA abuse – “if the people who are implementing this in your organization are not doing it in a way that is legal, or [in a way that] could be considered discriminatory because maybe they’re being a little too aggressive, this is a possible pitfall.”
FMLA and CFRA are complicated and they can be applied incorrectly without your employees realizing it.
Curbing FMLA/CFRA Abuse: Can You Impose Maximum Leave Amounts?
In the case of LaFever v. Acosta from the Northern District of California, the court denied the employer’s motion for summary judgment where the employer discharged the plaintiff after she exhausted her FMLA leave. The employer had a policy of immediate termination for anyone who did not return after 12 weeks of leave.
The case will go to jury – so we don’t know the outcome yet – but the court opinion said that an employer cannot enforce a maximum leave policy without first considering whether a reasonable accommodation, such as an additional leave of absence, is appropriate. The primary issue is that an employee may now qualify as disabled from their medical condition, which now prompts an employer’s requirement to initiate the interactive process to see if there is a reasonable accommodation for that person. That said, the employer is not required to reinstate the employee to the old position if the FMLA/CFRA leave is exhausted.
New California Legislation
SB 299 took effect January 1, 2012. It deals with health coverage during pregnancy leave and requires employers to continue group health insurance benefits for employees disabled by pregnancy, childbirth or a related health condition under the same the same terms as if the employee continued to work. “What makes this unique is that this applies to employees who are not eligible under FMLA,” Abidoye advised. The employer has an obligation to continue the benefits for up to 4 months. However, the employer can recover the premium costs if the employee fails to return from leave.
AB 592 deals with CFRA and the Pregnancy Disability Leave (PDL) law. This provides an independent basis of liability if an employer interferes with an employee’s right to take leave. Basically it is an additional prohibition against retaliation for taking protected leaves of absence.
AB 2039 is pending litigation that the governor may sign, but it is still to be determined. It would expand the definition of eligible family members to adult children, parents-in-law, grandparents, and siblings. (If you want to take FMLA or CFRA leave it now must be for a parent, child, or spouse). This was introduced in March 2012 and has passed in the Assembly. The bill is currently in the Senate. If the Governor signs it, it will take effect on January 1, 2013. If it passes, it will create additional grounds for employees to take leave to care for a family member.
The above information is excerpted from the CER webinar “California Employee FMLA/CFRA Abuse: Stop Excessive Absenteeism in Your Workplace.” To register for a future webinar, visit CER webinars.
Attorney Michelle Abidoye, a senior associate in the Los Angeles office of Ford & Harrison, LLP, is an experienced litigator who concentrates her practice on defending employers in federal and state court, as well as administrative proceedings. She represents clients in a variety of industries, including healthcare, banking, hospitality, and manufacturing.