1. © 2008 Fox Rothschild Intermittent Leaves How to Calculate, Administer, and Handle These Tricky Absences—And Keep Your Employees From Taking Advantage Presented by LYNNE M. HOOK CRISTINA OLIVELLA

2. © 2008 Fox Rothschild Agenda  Law  Hypotheticals  Questions

3. © 2008 Fox Rothschild A. Is the Company a Covered Employer?  FMLA / CFRA : Private employers with 50 or more employees (within 75 miles) - Public employers are covered regardless of the number of employees  ADA: Employers with 15 or more employees  FEHA: Employers with 5 or more employees © 2008 Fox Rothschild

4. A. Is the Company a Covered Employer? (cont’d)  PDL: Employer with 5 or more employees  Workers’ Compensation: Generally, any employer with one employee is a “covered employer.”

5. © 2008 Fox Rothschild B. Is the Employee Eligible for Legal Protection? FMLA/CFRA: An employee is eligible for FMLA leave if the employee :  Works at a worksite with fifty or more employees at that site or within seventy-five miles of that worksite;  Has worked for the employer for at least twelve months; and  Has worked at least 1,250 hours over the twelve- month period prior to the date leave commences.

6. © 2008 Fox Rothschild C. Does the Employee have a Right to Leave? FMLA / CFRA: An eligible employee has a right to twelve weeks of unpaid time off in a twelve month period if:  serious health condition that makes the employee unable to perform one or more of the employee’s essential job functions;  caring for a spouse, child or parent with a serious health condition; or  caring for a child after birth or placement with the employee for adoption or foster care (the leave must be concluded within 12 months of birth or placement).

7. © 2008 Fox Rothschild C. Does the Employee have a Right to Leave? (cont’d)  CFRA: a serious health condition is defined the same as under FMLA, with the exception that an employee’s pregnancy- related disability is not a serious health condition.

8. © 2008 Fox Rothschild C. Does the Employee have a Right to Leave? (cont’d)  PDL: An employee disabled by pregnancy, childbirth or a related medical condition (including morning sickness and prenatal care) is entitled to take an unpaid leave of absence for the period of her disability, up to a maximum of four months, regardless of the length of her employment.

9. © 2008 Fox Rothschild D. Is Intermittent or Reduced Schedule Leave Required?  FMLA / CFRA: absolute right to an intermittent leave or leave on a reduced leave schedule for the employee’s serious health condition, or to care for a family member with a serious health condition, if medically necessary.

10. © 2008 Fox Rothschild D. Is Intermittent or Reduced Schedule Leave Required? (cont’d)  ADA and FEHA: Intermittent leave or leave on a reduced schedule may be considered a reasonable accommodation, but the employer has a potential undue hardship or direct threat defense.

11. © 2008 Fox Rothschild D. Is Intermittent or Reduced Schedule Leave Required? (cont’d)  PDL: An employee has the absolute right to an intermittent leave or leave on a reduced leave schedule, if medically advisable.

12. © 2008 Fox Rothschild E. If the Leave Requested is Intermittent or Reduced Schedule, Does the Employer Have Any Special Rights? FMLA and CFRA: YES  (1) if leave is for planned medical treatments, the employee must attempt to schedule them so that there is no disruption and,  (2) if leave is foreseeable based on planned medical treatment, the employer can temporarily transfer the employee to another position with the same pay and benefits.

13. © 2008 Fox Rothschild E. If the Leave Requested is Intermittent or Reduced Schedule, Does the Employer Have Any Special Rights? (cont’d) Alternative position requirements:  (1) must have the equivalent rate of pay and benefits;  (2) the employee must be qualified for the position; and  (3) it must better accommodate recurring periods of leave than the employee’s regular job.

14. © 2008 Fox Rothschild E. If the Leave Requested is Intermittent or Reduced Schedule, Does the Employer Have Any Special Rights? (cont’d)  Transfer to an alternative position includes altering an existing job to accommodate the employee’s need for intermittent leave, or a reduced work schedule.

15. © 2008 Fox Rothschild E. If the Leave Requested is Intermittent or Reduced Schedule, Does the Employer Have Any Special Rights? (cont’d) ADA and FEHA:  No special rights, but accommodations are always subject to the undue hardship or direct threat defense.

16. © 2008 Fox Rothschild E. If the Leave Requested is Intermittent or Reduced Schedule, Does the Employer Have Any Special Rights? (cont’d) PDL: YES  (1) if leave is for planned medical treatments, the employee must attempt to schedule them so that there is no disruption to business; and (2) if leave is forseeable based on planned medical treatment, the employer can temporarily transfer the employee to another position with the same pay and benefits.

17. © 2008 Fox Rothschild F. Can the employer limit the increments of intermittent leave? An employer can limit leave increments to the shortest period that its payroll system uses to account for absences or use of leave.  For example, if employees must use vacation or sick time in half hour increments or more, the employer may require an employee leaving 20 minutes before the end of a workday for treatment for a serious health condition to use a half hour of her leave entitlement.

18. © 2008 Fox Rothschild G. Minimum duration of intermittent leave for baby bonding Two weeks  An employer must grant a request for a family leave of less than two weeks duration on any two occasions.

19. © 2008 Fox Rothschild G. Minimum duration of intermittent leave for baby bonding (cont’d)  All leave for baby bonding must conclude within one year of the birth of the child, or one year from the date the child was placed with the employee for adoption or foster care. G. Minimum duration of intermittent leave for baby bonding. (cont’d)

20. © 2008 Fox Rothschild G. Minimum duration of intermittent leave for baby bonding. (cont’d) What does your handbook say? An employee who is not statutorily entitled to FMLA/CFRA leave, may still be entitled to leave if your employee handbook provisions or other documentation sets out a leave policy on which the employee relies. H. In some instances, the handbook controls, despite what the law says

21. © 2008 Fox Rothschild HR Checklist for Intermittent Medical Leaves  1.Employee requests an intermittent leave of absence that sounds health care-related;  2.Employer provides a family or medical leave request form to the employee within two days;

22. © 2008 Fox Rothschild HR Checklist for Intermittent Medical Leaves (cont’d)  3.Employee returns form – is employee eligible for CFRA/FMLA/PDL? - If no, ADA? Personal leave? - If yes, employer responds within 10 calendar days to leave request in writing with eligibility details to designate leave (CFRA/FMLA or PDL/FMLA);

23. © 2008 Fox Rothschild HR Checklist for Intermittent Medical Leaves (cont’d)  3a. If yes, is a medical certification needed? - Always ask in writing - Use sample forms (no diagnosis) - Must allow 15 days to comply - ADA permits medical exams re essential functions or reasonable accommodation process

24. © 2008 Fox Rothschild HR Checklist for Intermittent Medical Leaves (cont’d)  4.Employer determines whether paid leave must be used and notifies employee;  5.Employer provides employee with copy of company leave of absence policy;

25. © 2008 Fox Rothschild HR Checklist for Intermittent Medical Leaves (cont’d)  6. Paid Family Leave brochure - employees who request leave to care for a seriously ill family member or bond with a new minor child - www.edd.ca.gov (DE2511) www.edd.ca.gov

26. © 2008 Fox Rothschild HR Checklist for Intermittent Medical Leaves (cont’d)  7.Employer provides employee with EDD pamphlet on State Disability Insurance if not work related;  8.Employer ensures that proper postings on FMLA/CFRA/PDL/ADA are in employee rest areas.

27. © 2008 Fox Rothschild Recertifications OK to request every 30 days TIP:Attach the employee's attendance records to the request to the healthcare provider. Ask the provider to verify that the records are consistent with the medical needs of the ill or injured person.

28. © 2008 Fox Rothschild Hypothetical No. 1  Suppose an employee asks you for intermittent time off to care for his seriously ill mother. How do you respond to the employee’s request?

29. © 2008 Fox Rothschild Response to Hypothetical No. 1 1.Does the employee meet the legal criteria to take a family leave? - 50/75 rule - 12 months / 1250 rule

30. © 2008 Fox Rothschild Response to Hypothetical No. 1  If the employee meets the legal requirements, grant the leave. If not, consider step 2.

31. © 2008 Fox Rothschild Response to Hypothetical No. 1 2.What does your employee handbook say? Does your company have a written policy providing medical leaves of absence other than those provided by the leave laws, or allow personal leaves?

32. © 2008 Fox Rothschild Response to Hypothetical No. 1  If so, does the employee meet those policy requirements? If yes, grant the leave. If not, consider step 3.

33. © 2008 Fox Rothschild Response to Hypothetical No. 1 3.What is your past practice? Have you previously granted such leaves? If so, consider whether this is a similar situation. Remember however that you must treat similarly situated employees similarly.

34. © 2008 Fox Rothschild Response to Hypothetical No. 1  If you have a valid business reason for denying the leave, even though you have granted it to other similarly situated employees, you must be able to document the reason for denying it. - For example, this employee requested time off during the busy season and the other granted leaves were during the slow season.

35. © 2008 Fox Rothschild Response to Hypothetical No. 1  If nothing in the law, your policies, or past practices indicates that you must grant the request, you can deny it. But should you?

36. © 2008 Fox Rothschild Intermittent Leave for Caregiving Maintenance employee awarded $11.65M for retaliation after taking leave to care for his aging parents Schultz v. Advocate Health (2002 U.S.Dist. LEXIS 9517 (N.D.Ill. 2002)

37. © 2008 Fox Rothschild Intermittent Leave for Caregiving Employee took intermittent leave to care for her mother. During that time she was demoted on the grounds that she had performance problems. The Seventh Circuit Court of Appeals found that the record could support a finding that the demotion was in retaliation for the leave and, therefore, violated the FMLA. Until the employee took the intermittent leave there was no record of performance problems, and she was told by a supervisor that her leave was the reason for her demotion. - Lewis v. School District #70, Case No.06-4435 (7th Cir. Apr. 17, 2008).

38. © 2008 Fox Rothschild Hypothetical No. 2 Suppose you have an employee who has had morning sickness for the first two months of her pregnancy and had to take a total of one month off for her condition intermittently as certified by her doctor. She is ordered to bed rest by her doctor in her fifth month for the remainder of her pregnancy. She asks you if her job is protected while she is out on leave. Your employee handbook states that the company offers PDL and FMLA, but not CFRA. What do you tell her?

39. © 2008 Fox Rothschild Response to Hypothetical No. 2 You must inform her that FMLA and PDL run concurrently. Under FMLA her job is protected for three months, and PDL adds a fourth month. Her job is not protected beyond the fourth month. (she has 3 months)

40. © 2008 Fox Rothschild Hypothetical No. 3  Marina is a marginal worker and is on final warning for poor performance. She requests intermittent leave for a serious health condition (stress) in June and uses up her 12 weeks in January.  She has not paid her January medical insurance premium.  Her most recent doctor’s note said she will return February 4. She sends you an email stating that her doctor today said she can return February 18.  There is some precedent for permitting up to six months of leave prior to termination although her job protection would end.

41. © 2008 Fox Rothschild Response to Hypothetical No. 3  FMLA/CFRA: ends on 1/24/08 per your letter to her dated 1/2/08. Her position with the company is no longer protected as of 1/24/08 if the company needs to fill it.

42. © 2008 Fox Rothschild Response to Hypothetical No. 3  COBRA: She is eligible effective 1/25/08 when benefits end under FMLA per your letter dated 1/2/08. You should notify your administrator to send out the paperwork.

43. © 2008 Fox Rothschild Response to Hypothetical No. 3  Failure to Pay Premium for January Benefits: - FMLA requires 15 day notice to the employee of cancellation of benefits for failure to pay premiums on time, but since she is losing benefits 1/25/08 anyway, she will lose employer-sponsored benefits due to her FMLA expiration first.

44. © 2008 Fox Rothschild Response to Hypothetical No. 3  STD: You should provide your STD carrier with the employee’s doctor’s note through 2/4/08, if you have not already done so. You should also send them the CA State Disability Insurance forms she completed in June where she states that the injury is work-related.

45. © 2008 Fox Rothschild Response to Hypothetical No. 3  Continuation of Disability Leave to 2/18/08: If you have not already received a doctor’s note continuing her leave as she claims to 2/18/08, send her an email to confirm that you are missing this piece of information as you get closer to the 2/4/08 end date on record.

46. © 2008 Fox Rothschild Response to Hypothetical No. 3  Workers Comp: You have sent her the DWC1 form to claim this benefit. It is unlikely that she will qualify if she is already receiving STD as one cancels out the other. She may have already claimed the injury is not work-related on her STD form. Until you have a determination from your WC carrier, you should leave her on unpaid disability leave to avoid a WC discrimination claim.

47. © 2008 Fox Rothschild Questions?

48. © 2008 Fox Rothschild Contact Information Lynne M. Hook, Esq. Los Angeles 310.556.8786 ext. 208 LHook@foxrothschild.com Cristina Olivella, Esq. San Francisco 415.364.5546 COlivella@foxrothschild.com © 2008 Fox Rothschild