CFRA/FMLA Leave Vs. Other Leave Laws: In What Order Does Leave Apply?

Applying CFRA/FMLA leave laws can be tricky. How can you be sure you’re applying the correct California and federal laws – and in the correct order? You want to stay in compliance, as well as be sensitive to your employees’ needs, but you also don’t want to keep approving leave if it’s not appropriate. In a CER webinar titled “Leave Laws in California: Master the Intersection of ADA/FEHA, FMLA/CFRA, and Workers’ Comp,” Patricia S. Eyres outlined some guidance to help employers know which leave applies and what order to apply them in.

CFRA/FMLA Leave Vs. Other Leave: Comparison of Applicable Laws

“We’re dealing with three different sets of legislative, regulatory, and judicial standards. It’s legislation, regulation, and litigation that controls and defines the scope of these three separate types of standards. In the workers’ comp arena, the focus is almost exclusively on what the worker can no longer do.” Eyres explained.

ADA/FEHA, on the other hand, seeks to explore through the “interactive process” what the employee is still capable of doing. “You are looking at it at 180 degrees different perspective,” Eyres explained. “You’re looking at what the worker can’t do and has lost and will be compensated for under workers’ comp, but in the FEHA/ADA side you’re looking at what the worker is still capable of doing–meaning that you are focusing on how we can bring this individual back to work.”

CFRA/FMLA leave laws provide job-protected and benefit-protected time off for employees needing treatment and recovery. Obviously these will often overlap. So, how do you know which leave law applies and in what order?

Which Leave Applies and in What Order?

Here’s a quick guide to applying leave:

The first leave to apply is Workers’ Compensation. If the situation involves a workplace injury or illness, immediately provide the DWC-1 form to the employee and inform your workers’ compensation carrier.

The second leave to apply is CFRA/FMLA leave. If the employee’s own serious health condition (as defined by law) applies, then you must:

• Determine whether a block of time is needed, or whether intermittent/reduced time leave is required.
• If CFRA might apply, provisionally designate the leave (you must designate within 5 days of learning of the issue).
• Provide the Medical Provider Certification form to the employee and give 15 days for the response.
• Assuming the requirements are met, formally designate the leave and explain concurrent/consecutive leave rules and other terms and conditions. (This may mean an employee concurrently is on workers’ compensation leave and CFRA/FMLA leave.)

The third type of law to apply is FEHA or ADAAA reasonable accommodations. This will apply when the situation involves a covered disability, as defined by law. Ask yourself:

• Is there a trigger for an interactive process, separate from the workers’ compensation or CFRA/FMLA leave?
• What about an employee who isn’t eligible for FMLA/CFRA but needs time off as a reasonable accommodation? What about employee who exhausts all available leave? (What is the impact of rigid/inflexible maximum leave policies?)

Finally, after looking at each of these leave types and other concerns, consider thorny issues:

• Do you apply leave concurrently or consecutively?
• What about late notice? Late designation? A late designation should not be applied retroactively, as this would be to the detriment of the employee.
• The impact of rigid attendance policies: be wary of terminating employees who have reached their maximum leave but cannot return to work. Every decision should be individualized. It is a reasonable accommodation decision once all of the leave is exhausted! Summarily dismissing employees after they have exhausted leave options may violate ADA.
• Beware of manager and supervisor issues such as performance evaluations, retaliation, and leave interference.

To register for a future webinar, visit CER webinars.

Patricia S. Eyres, Esq., the managing partner of Eyres Law Group, LLP, focuses on helping employers manage disability discrimination issues for both workers’ comp and non-occupational disabilities. As president of Litigation Management & Training Services and CEO/Publisher of Proactive Law Press, LLC, Eyres trains managers and supervisors on how to recognize risks, prevent lawsuits, and maintain defensible documentation.