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L EAVE AND A CCOMMODATION R IGHTS AT W ORK © The Legal Aid Society-Employment Law Center 2013.

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Presentation on theme: "L EAVE AND A CCOMMODATION R IGHTS AT W ORK © The Legal Aid Society-Employment Law Center 2013."— Presentation transcript:

1 L EAVE AND A CCOMMODATION R IGHTS AT W ORK © The Legal Aid Society-Employment Law Center 2013

2 L EGAL A ID S OCIETY – E MPLOYMENT L AW C ENTER Non-profit legal aid organization founded in 1916 Since 1983, LAS-ELC’s Work and Family Project has advocated to protect the employment rights of pregnant women, new parents, and workers facing family medical crises. Since 1997, LAS-ELC’s Project SURVIVE has advocated to protect the workplace rights of survivors of domestic violence, sexual assault, and stalking. LAS-ELC provides legal advice and information through toll-free help lines and clinics, direct representation, policy advocacy, and public education and outreach.

3 Q UALIFYING R EASONS FOR T AKING FMLA/CFRA L EAVE Attend to your own serious health condition Care for a child, parent, spouse or domestic partner with a serious health condition Bond with a newborn child, adopted child or foster child (within 1 yr)

4 “S ERIOUS H EALTH C ONDITION ” A condition requiring overnight, in-patient hospital stay. Incapacity for more than 3 days (e.g. back injury, pneumonia) Chronic health condition (e.g. asthma, epilepsy, migraines, diabetes) Terminal/incurable illness (e.g. terminal cancer, Alzheimer’s or stroke) Multiple treatments (e.g. chemotherapy for cancer, physical therapy or surgery for accident) Pregnancy, including prenatal care & severe morning sickness (under FMLA only)

5 W HO Q UALIFIES FOR FMLA/CFRA L EAVE ? Employees who: Have worked for employer for at least 1 year; AND Have worked at least 1250 hours in the year preceding the leave; AND Work for an employer with 50+ employees within a 75-mile radius Even when the above requirements are met, an employee’s leave may not be protected where: S/he is a “key employee” Position is eliminated because of a legitimate business reason

6 26 weeks of leave per year to care for injured or ill service members. 29 C.F.R. § (c). Family members: spouse, child, parent, or next of kin of covered service member. FMLA: M ILITARY C AREGIVER L EAVE

7 12 weeks of leave per year to help service member or employee during qualifying exigency. Covered family members: spouse, child, parent. Qualifying exigency: Short-notice deployment Military events or related activities Childcare and school activities Financial and legal arrangements Counseling Rest and recuperation Post-deployment activities Additional activities FMLA: M ILITARY E XIGENCY L EAVE

8 C ALIFORNIA F AMILY R IGHTS A CT (CFRA) Similar to FMLA, CFRA provides up to 12 weeks of job-protected time off to eligible employees. Usually, FMLA and CFRA leave run concurrently, but there are exceptions where only one law covers a particular reason for leave: Caring for registered domestic partner (CFRA only) Pregnancy as a serious health condition (FMLA only) Practical effect? Possible to use an additional 12 weeks of leave, where first 12 weeks fell under one of these exceptions 12 weeks of pregnancy disability leave under the FMLA and an additional 12 weeks of bonding leave under CFRA) 12 weeks of leave to care for your registered domestic partner under the CFRA and an additional 12 weeks of leave to care for your mother

9 FMLA/CFRA L EAVE Intermittent Leave Allowed Health Insurance Continuation Employee Notice Requirements If leave foreseeable, give at least 30-days’ notice If unforeseeable, “as soon as practicable” (1-2 business days) Medical Certification Privacy: in California, an employer may not require disclosure of diagnosis.

10 C ALIFORNIA P REGNANCY D ISABILITY L EAVE (PDL) L AW Women are entitled to up to 4 months of job-protected leave while disabled by pregnancy, childbirth or related condition. Typical disability period for normal pregnancy is 4 weeks before due date through 6-8 weeks post-birth. Health insurance continued. No forced pregnancy leave. Employer may require medical certification.

11 C ALIFORNIA P REGNANCY A CCOMMODATIONS L AW Women affected by pregnancy, childbirth or a related condition are entitled to reasonable accommodations. E.g., a stool, help with heavy lifting, avoiding exposure to toxic fumes. Accommodation must be advised by health care provider.

12 S TATE D ISABILITY I NSURANCE (SDI) If a worker pays in to the state disability insurance program (usually through paycheck deductions), then she may be eligible to receive partial wage replacement while temporarily disabled by pregnancy, childbirth or a related medical condition.

13 P AID F AMILY L EAVE (PFL) Workers who pay into SDI are eligible to receive up to 6 weeks of partial wage replacement while taking time off to care for a close family member with a serious health condition or to bond with a new child. Beginning July 1, 2014, workers will be able to use PFL to care for sibling, grandparent, grandchild, or parent-in- law PFL doubled the median duration of breastfeeding for all new mothers who used it. Both parents may take PFL to bond with new child. PFL can be used intermittently.

14 FMLA/CFRA Eligible Workers: $$: SDI PFL I NTERACTION OF J OB -P ROTECTED L EAVE AND W AGE R EPLACEMENT B ENEFITS birth Job Protection: FMLA (12 wks) /PDL (4 mo) CFRA 4 weeks for pregnancy 6 weeks to recover12 weeks to bond 6 weeks

15 Workers NOT Eligible for FMLA/CFRA: $$: SDI PFL I NTERACTION OF J OB -P ROTECTED L EAVE AND W AGE R EPLACEMENT B ENEFITS birth Job Protection: PDL (4 mo.) (if ≥ 5 ees) Ask Employer 4 weeks for pregnancy 6 weeks to recover6 weeks to bond

16 D ISABILITY P ROTECTIONS : ADA AND FEHA Prohibit discrimination against employees with mental or physical disabilities. Disabilities are impairments that “substantially limit” (ADA) or “limit” (FEHA) major life activities (walking, sleeping, eating, breathing, thinking, learning, concentrating, interacting with others). May require “reasonable accommodation” of employee with disability to enable her/him to work. Examples: Leave of absence, reduced work schedule, transfer, structural modifications. Undue hardship exception. Medical certification may be required.

17 L EAVE AS A D ISABILITY A CCOMMODATION Many employees are entitled to 12 weeks of job- protected unpaid leave under FMLA/CFRA. BUT, even if you don’t qualify for or have already exhausted FMLA/CFRA leave, you may be able to take leave as a reasonable accommodation. Leave as RA can also extend pregnancy disability leave beyond 4 months. Leave as RA is job-protected (unless undue hardship, in which case employer should look for equivalent vacancy) Important to give employer a return-to-work date (even if tentative or later extended)

18 SF ordinance adopted by voters in 2006 was first in country. Washington, DC, Milwaukee, WI, Seattle, WA, and the state of Connecticut have since passed Paid Sick Days laws. Paid time off for employee’s own illness, or to aid/care for family member or designated person who is ill, injured, receiving care, treatment or diagnosis. Family member: child, parent, legal guardian, sibling, grandparent/child, spouse, registered domestic partner. SF P AID S ICK D AYS O RDINANCE

19 K IN C ARE : S ICK L EAVE TO A TTEND TO F AMILY (C AL. L AB. C ODE §§ 233, 234) Employees in CA are entitled to use half annual accrued sick leave to attend to an illness of a: Child Parent Spouse Domestic partner Retaliation prohibited.

20 L ACTATION A CCOMMODATIONS California requires reasonable break time and private space, not a bathroom, for lactation at work. Federal ACA – reasonable break time and private space, not a bathroom, for non- exempt employees for one year after birth.

21 L EAVE F OR S URVIVORS OF D OMESTIC V IOLENCE AND S EXUAL A SSAULT Labor Code Section 230 Job-protected time off to go to court No size or seniority requirements Labor Code Section Job-protected time off for services No seniority requirement but employer must have at least 25 employees Services include:  Doctor or counseling visits  Temporary or permanent relocation, shelter stay  Safety planning  Meeting with a sexual assault and/or DV advocate

22 U NEMPLOYMENT I NSURANCE FOR S URVIVORS – “G OOD C AUSE ” Q UIT In California, “good cause” includes leaving unemployment to protect the employee or the employee’s children from domestic violence. To establish “good cause” a survivor must show that: (1) The survivor and/or survivor’s children experienced an act or threat of domestic violence abuse; (2) the survivor has a restraining order, police report, or other information that identifies the batterer and/or verifies the abuse; (3) a leave of absence or transfer was not available, or would not have resolved the problem. An employer’s reserve account is not charged, provided that the employer notifies the department of the circumstances within 10 days of the filing of the claim.

23 O THER E MPLOYMENT P ROTECTIONS FOR S URVIVORS May be able to access protections under other laws not specific to survivors of DV/SA/stalking FMLA/CFRA leave ADA reasonable accommodation (e.g., may have physical or psychiatric disabilities related to violence) Senate Bill 400 (Jackson) Would prohibit employers from discriminating against an employee because s/he is a victim of domestic violence, sexual assault, or stalking Would entitle victims to reasonable safety accommodations at the workplace Similar laws in Illinois, Connecticut, Hawaii, Oregon, Rhode Island Status: Governor Brown’s desk

24 Q UESTIONS ? Legal Aid Society – Employment Law Center Work & Family Helpline (800) SURVIVE Helpline (888) Free legal advice and information in multiple languages.


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