There may be no other subject in the state of California that evokes a greater cringe in HR professionals than family and medical leave. And this makes sense, as the rules are complicated and noncompliance can have grave consequences.
Today, attorney Michelle Lee Flores of the Los Angeles office of Fisher & Phillips, LLP, runs down some key considerations in this area to help you stay in compliance.
The interplay of the California Family Rights Act (CFRA) and California’s pregnancy disability leave (PDL) regulations with the federal Family and Medical Leave Act (FMLA) is a constant source of anxiety for those responsible for compliance.
The following list of 10 tips for compliance should bring some comfort in what is often seen as a sea of despair.
Here we go . . .
1. Remember, it’s all about us! California has a very important distinction from the almost mirror image that the CFRA is to the FMLA―specifically, PDL. The CFRA doesn’t cover time off for an employee who is suffering from a pregnancy-related disability. With the FMLA, one generally thinks of "12 weeks."
Well, in California, you can think 12 weeks off because of one’s own illness unless the employee is disabled by pregnancy, childbirth, or a related medical condition, and then it’s 4 months of leave (i.e., 17 1/3 weeks) or the number of days the employee normally would work within 4 months.
Therefore, a qualified employee under both the CFRA and the PDL could have protected leave for up to 7 months under the statutory requirements. PDL allows for protected time off for extreme morning sickness, bed rest, gestational diabetes, postpartum depression, loss or end of pregnancy, childbirth, and recovery from childbirth, among other things.
2. Don’t forget the basic differences. Remember the similarities and the differences. Under the FMLA, the maximum leave is 12 weeks unless the leave is to care for a covered military servicemember, in which case it’s 26 weeks. Under the PDL, employees are eligible immediately upon hire, as compared to the FMLA and CFRA’s minimum number of hours worked (1,250) in the immediately preceding 12 months.
Unique to the CFRA is protected time off to care for a registered domestic partner with a serious health condition or the child of a registered domestic partner. Unique to the FMLA is protected leave for a qualifying exigency relating to a close family member’s military service and up to 26 weeks of leave per 12-month period to care for an ill or injured servicemember.
3. Communication is the key. At the first sign of any potential triggering event, provide the employee with the employer notices―specifically, notice of the employee’s general rights and notice for which leaves she is eligible. Also let her know if you need more information to make such a determination.
Upon receipt of information regarding eligibility (e.g., a doctor’s note), respond with your determination. If you still need more information, tell the employee that for the time being, you are considering the leave to be FMLA/CFRA/PDL leave (pick whichever may be appropriate) although time away ultimately may not be deemed the designated leave because eligibility is still being evaluated. That way, you can tick away on the time while continuing to get information to make a determination of eligibility.
Beyond CFRA/FMLA Basics: How to Conquer Complex Leave-Tracking Challenges. Webinar coming next Thursday! Learn more.
4. Be careful when dealing with verifications or additional certifications. Under the PDL, you can’t challenge a doctor’s note. Under the FMLA and CFRA, you can seek a second or third opinion in certain circumstances. Also, be open to changes. If the anticipated leave was 30 days and you get a note for another 30 days, reevaluate and communicate in writing the eligibility and parameters of the continued leave.
5. Your paperwork should include references to the CFRA and the PDL, not just the FMLA. In California, don’t rely solely on the "forms" on the U.S. Department of Labor (DOL) website for compliance. They don’t include information on the rights one has under the CFRA or the PDL, so there’s significant risk you wouldn’t have satisfied the notice requirements to count any CFRA and/or PDL time for which the employee was eligible. Go down the list and identify in the communication whether the leave or time away applies to each of these types of leave.
And remember that the FMLA medical certification form allows a doctor to disclose an employee’s diagnosis, whereas the CFRA medical certification form does not (unless the patient consents to the disclosure).
Tomorrow, the rest of Flores’s list—plus an invitation to a special California webinar specifically on FMLA/CFRA leaves that you won’t want to miss.
Download your copy of Notice Requirements for CFRA and FMLA: California Labor Laws today!