LEAVES OF ABSENCE: Effectively Navigating the Legal Maze Daniel J. McCoy, Esq. Partner and Co-Chair, Employment Practices Group Fenwick & West LLP April 2012

OVERVIEW Why Do Medical Leaves of Absence Intimidate Employers? Key Concepts Regarding FMLA/CFRA Notice & Designation and Employee Rights and Obligations During Leave Summary of Changes to FMLA and ADA Demystifying the Return Process and Avoiding Retaliation Claims Reasonable Accommodation Law: Adding the ADA & FEHA to Your Checklist The Impact of Layoffs/Reorgs on Protected Leaves of Absence

WHY DO LEAVES OF ABSENCE INTIMIDATE EMPLOYERS? Too Much Technical Law to Absorb Knowledge = Confidence Employees Know Their Rights Retaliation and Discrimination – Employees May Take Advantage of Employer Ignorance Myths Persist About Employer Rights and Restrictions

CHRONOLOGICAL SUMMARY: How Did We Get Here? 1990: ADA enacted 1991: California Family Rights Act enacted (no employee leave rights) 1993: FMLA enacted CFRA amended to cover employee leaves 2004: Paid Family Leave enacted 2008: ADA Amendments Act enacted 2009: DOL Regulations (re: FMLA) revised 2011: Revisions to ADA Regs to implement ADA Amendments

TRUE OR FALSE? If the doctor states that the employee needs a medical leave of absence, the employer must accept the statement without further inquiry. FALSE An employer must uncritically accept a vague doctor’s note that contains no detail about an employee’s limitations. If an employer suspects an employee is abusing FMLA/CFRA leave, it cannot investigate. Employees must be returned to work when released by their doctors regardless of whether they can perform the essential duties of their job.

TRUE OR FALSE? Once an employee exhausts his/her 12 weeks, he/she has no further rights to a protected leave of absence. FALSE Employees on a FMLA/CFRA leave are insulated from layoffs and reorganizations. Employees may take an indefinite, protected leave of absence for work-related injuries/illnesses and may not be terminated.

TRUE OR FALSE? Independent contractors are not eligible for leave under FMLA/CFRA/PDL/ADA. TRUE (so long as they are properly classified) A leave policy that imposes a 6-month limit on leaves of absence are lawful. FALSE An employer can’t hire someone to temporarily fill in for an employee on protected leave.

Revised DOL Regulations re: FMLA Key Takeaways Notice & Designation: Employers have 5 business days to provide to employee Employers may contact health care providers to authenticate or clarify certifications Employers must notify employees of certification deficiencies and allow 7 days to cure Fitness for duty certifications may address essential functions of position Employees may be disqualified from performance-based awards/bonuses, including for attendance, if goal not met due to FMLA leave

ADA Amendments Act Revisions: Impairment must be evaluated without regard to ameliorative effects of mitigating measures Rejects “demanding standard” that impairment must prevent or severely restrict individual from performing activities that are of central importance to most people’s daily lives Rejects EEOC’s narrow “substantially limits” definition and mandates new regulations Broadens definitions, including “major life activities” and “regarded as” having an impairment

PROTECTED LEAVES: Covered Employers FMLA/CFRA: 50 or more employees ADA: 15 or more employees FEHA: 5 or more employees PDL: 5 or more employees

FMLA/CFRA IN A NUTSHELL: Employee Eligibility Employed at least 12 months Has worked at least 1250 hours during previous 12 months Works at a facility with 50 or more employees within 75-mile radius of site Note: PDL, ADA, and FEHA do not have any minimum service or hours worked threshold

FMLA/CFRA IN A NUTSHELL: Qualifying Reason for Leave Birth or care of a newborn child For placement of a child for adoption or foster care with the employee To care for a spouse, son, daughter, or parent with a serious health condition (CFRA covers registered domestic partner) To take medical leave when the employee is unable to work because of a serious health condition (CFRA does not cover disability due to employee’s pregnancy) Qualifying exigency arising out of a covered military member on active duty or being called to active duty status Military family leave

FMLA/CFRA IN A NUTSHELL: Duration of Leave Up to 12 weeks during a 12-month period for all qualifying reasons EXCEPT Military Family Leave under FMLA, which permits up to a total of 26 weeks of protected leave Includes leave on an intermittent/reduced schedule basis Spouses/Parents working for same employer have a combined leave limited to 12 weeks Under FMLA: To care for a parents’ SHC, for child’s birth, to care for the child after birth, or for placement of a child for adoption or foster care Under CFRA: Only for a child’s birth or placement of a child for adoption or foster care

FMLA/CFRA IN A NUTSHELL: Employee’s Duty to Notify Employee must give oral or written timely notice that puts employer on notice of need for FMLA/CFRA leave, timing and duration. No Magic Words - provide employer with enough information to reveal that FMLA/CFRA leave may be needed. Employer need not accept incomplete/vague requests. Employee has ongoing duty to notify employer of changes to leave, including any extensions.

FMLA/CFRA IN A NUTSHELL: Employer’s Notice Duties Post and distribute appropriate notices and certification forms. If unclear whether leave is FMLA, discuss with employee (and document such discussions). However, under CFRA if employee requests vacation or PTO without reference to a qualifying purpose, the employer may not ask whether the employee is taking the time off for a CFRA-qualifying purpose.

FMLA/CFRA IN A NUTSHELL: Employer’s Notice Duties Notify employee of FMLA eligibility and rights and responsibilities under FMLA/CFRA promptly (w/in 5 business days). Designate FMLA leave promptly (w/in 5 business days). Can be designated orally (but confirm in writing). General Rule: Designate before leave commences. Retroactive Designation: Permissible only if insufficient information exists as to reason for leave. Uncertain? – Preliminarily (conditionally) designate.

FMLA/CFRA IN A NUTSHELL: Pay During Leave Generally, leave is unpaid. Employee has right to substitute accrued paid leave. Employer may require employee to substitute accrued paid leave: FMLA: May require employee to use accrued vacation/PTO/sick time during FMLA leave. CFRA: May require employee to use accrued vacation/PTO; and may require employee use accrued sick time during CFRA leave for the employee’s own SHC (but not other purposes).

FMLA/CFRA IN A NUTSHELL: Seniority, Benefits & Stock Option Vesting Stock Option Vesting: Employer’s Stock Option Plan controls; vesting typically tied to “service” Seniority: No loss during leave of absence Benefits: Health benefits must be maintained at same levels as if employee continuously employed. Seniority accrual and participation in other benefit plans not mandatory during leave - company policy controls. Bonuses and Awards: Employees may be disqualified from performance-based bonuses/awards (e.g., attendance) if the employee fails to meet the goal due to taking FMLA leave.

FMLA/CFRA IN A NUTSHELL: Reinstatement Must be prompt. Employer may require return-to-work certificates if it uniformly requests such certificates from other employees returning to work following illness, injury or disability.

RELATED LEAVE RIGHTS: Pregnancy Disability Leave (PDL) PDL covers leaves for the following reasons: (1) Disabled due to pregnancy; (2) Pregnancy-related medical reasons (e.g., morning sickness, prenatal care); or (3) Childbirth. Actual period of disability, up to 4 months. PDL may run concurrently with FMLA, but not CFRA (pregnancy is not covered as a SHC under CFRA).

RELATED LEAVE RIGHTS: Pregnancy Disability Leave (PDL) Employers can require that employees use accrued sick leave during PDL. Employees can elect to use vacation/PTO during PDL, but employers cannot require it. Health coverage benefits will be maintained for the duration of PDL disability (up to 4 months).

RELATED LEAVE RIGHTS: Pregnancy Disability Leave (PDL) Reasonable Accommodation: Employer must provide reasonable accommodation if the employee requests, with the advice of her HCP. Transfer: Employer must transfer an employee to a less hazardous or strenuous position during the pregnancy, if employee requests, with the advice of her HCP, where that transfer can be reasonably accommodated.

RELATED LEAVE RIGHTS: Reasonable Disability Accommodation (ADA/FEHA) “A finite leave of absence can be a reasonable accommodation under the FEHA provided that it is likely that, at the end of such leave, the employee will be able to perform his or her employment duties.” No obligation to provide indefinite open-ended leave of absence. Leaves of Absence should be considered both as: A supplement to FMLA/CFRA leave; and A substitute where employee is not FMLA/CFRA-eligible.

RELATED LEAVE RIGHTS: Reasonable Disability Accommodation (ADA/FEHA) Accommodation thresholds must be met: Existence of disability (limitation on major life activity) Reasonableness Undue hardship defense applies Notes: A job function may be essential, even though performed rarely, if sufficiently important. See Hennagir v. Utah Dept. of Corrections (10th Cir. 2009) Duty to engage in interactive process applies even where employee is merely “regarded as” disabled. See Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34 (2006).

SUBSTANCE ABUSE: Overview Alcohol and illegal drug abuse ≠ disability Underlying addiction = disability Federal and California disability laws reflect this distinction, extending protections to recovering addicts but not current alcohol or illegal drug use

SUBSTANCE ABUSE: Key Legal Concepts As a disability: Alcoholism ADA: substantially limits one or more major life activities FEHA: limits one or more major life activities Drug Addictions Employee must satisfy the test above; and Show that he or she is, in fact, an addict

SUBSTANCE ABUSE: Key Legal Concepts Accommodation obligation Duty to accommodate alcohol/drug treatment, but not use/abuse Can hold such employees to the same performance standards/requirements as other, non-disabled employees

SUBSTANCE ABUSE: Rehabilitation Leave California Labor Code § 1025 through § 1028 and Federal Rehabilitation Act of 1973 (29 U.S.C. § 791) Under CA law, employers with 25 or more employees: Must reasonably accommodate an employee’s voluntary participation in an alcohol and/or drug rehab program provided no undue hardship on employer “Reasonable accommodation” = time off work, but not time off with pay, although employees may use sick leave Employer obligated to make reasonable efforts to safeguard an employee’s privacy Employer may refuse to hire or discharge an employee because of the employee’s current use of alcohol and/or drugs, or because the employee is unable to perform his or her duties, or cannot perform the duties in a manner which would not endanger his or her health and safety or that of others

RELATED LEAVE RIGHTS: Health Care Coverage and COBRA 12 weeks of protected FMLA/CFRA leave = ongoing coverage through Company plan Coverage continuation after 12 weeks? Legal requirements Plan documents

ANALYZING REQUESTS FOR LEAVE: Protected Leave Checklist Is the employee entitled to family or medical leave? If not, is the employee entitled to disability leave? If not, is the employee entitled to workers’ compensation leave? If not, does company policy provide other leave protections? Is the action the company is considering consistent with prior actions?

COMMUNICATIONS WITH EMPLOYEE AND HEALTH CARE PROVIDER (“HCP”) Per the revised DOL regulations, an employer representative may directly contact the health care provider To clarify or authenticate a certification Representative may be a health care provider, human resources professional, leave administrator, or management official, but not the employee’s supervisor In California, employers may not inquire about the underlying health condition, unless the employee voluntarily discloses it or authorizes the health care provider to do so.

COMMUNICATIONS WITH EMPLOYEE AND HCP: Medical Certifications Before Leave Employee’s Own “SHC” Family Member’s “SHC” Date of onset of condition Probable duration of condition Due to the SHC, employee is unable to perform functions of position HCP’s estimate of how long employee needs to care for family member SHC warrants participation of family member to provide care

Acceptable Certification Forms: COMMUNICATIONS WITH EMPLOYEE AND HCP: Medical Certifications Before Leave Acceptable Certification Forms: Federal: DOL-approved forms for each type of leave California: FEHC certification form, or DOL Forms (so long as HCP does not disclose underlying diagnosis without patient’s consent) If certification meets basic disclosure requirements: Employer may obtain second (and third) opinion about employee’s condition Employer must accept it without further inquiry about family member’s condition

COMMUNICATIONS WITH EMPLOYEE AND HCP: During Leave Recertification from HCP may be required, as follows: Leave extended beyond original, estimated return date; Circumstances have changed; An employer has reason to doubt the validity of the initial certification Every 6 months (even where the original certification states that leave will be needed for longer than 6 months). Employer may require regular status reports from employee, if requirement identified at outset of leave.

COMMUNICATIONS WITH EMPLOYEE AND HCP: Return to Work DOL regulations permit fitness-for-duty certifications:  Where employer notified employee of requirement at outset of leave Where reasonable safety concerns exist based on condition for which leave was taken, employer may require certification every 30 days from an employee on intermittent or reduced schedule leave Employer may provide essential functions of position and require certification of the employee’s ability to perform those functions

RETALIATION/INTERFERENCE: Right of Reinstatement Not absolute. Employee has no greater right to reinstatement than if he/she had been continuously employed during leave period. Impacts layoffs, terminations, and performance management during and after protected leaves.

RETALIATION/INTERFERENCE: Employee Claims Against Employers Interference: Employee claims that employer’s conduct prevented or adversely impacted FMLA leave. Retaliation: Employee need not produce direct evidence; circumstantial evidence will suffice: Burden shifts to employer to show non-discriminatory reasons for actions. Burden shifts back to employee to show pretext.

RETALIATION: Workers’ Compensation Cal. Labor Code §132a: Employers may not discharge, threaten to discharge, or otherwise discriminate against employee who files or intends to file Workers’ Compensation claim. §132(a) does not compel employer to ignore business realities by re-employing (1) unqualified employees or (2) employees for whom positions are no longer available. Judson Steel v. Workers’ Comp. Appeals Bd, 22 Cal. 658 (1978). Employer must have evidence that actions were “necessary” and “directly linked to business realities.”

RETALIATION/INTERFERENCE: Representative Cases – Employee Verdicts Upheld Retroactive denial of healthcare benefits constituted interference and retaliation – Ryl-Kuchar v. Care Centers, Inc. (7th Cir. 2009) Termination four days after return from leave where supervisor doubted employee could do the job “because of [his] health” violated FMLA – Bryant v. Dollar General Corporation (6th Cir. 2008)

RETALIATION/INTERFERENCE: Representative Cases – Triable Issues of Fact Triable issue regarding pretext due to temporal proximity between leave and termination and CEO’s statements about plaintiff taking time off, including “you’re damaged goods” – Marks v. Custom Aluminum Products, Inc. (N.D. Ill. 2007) Triable issue regarding employer’s failure to reinstate plaintiff due, in part, to manager’s reaction to employee’s leave, including anger and characterizing plaintiff as “selfish” – Bryson v. Regis Corporation (6th Cir. 2007) 40

RETALIATION/INTERFERENCE: Representative Cases – Employer Victories Termination during FMLA leave for misconduct during leave, including unauthorized purchases on the company credit card, deletion of thousands of emails after performance counseling, and refusal to return company keys and disclose passwords to the employer or sign a performance improvement plan, did not violate FMLA – Daugherty v. Wabash Center, Inc. (7th Cir. 2009) 41

KEY TAKE-AWAYS The law providing the greatest protection, typically California law, will govern. Employers need not accept inadequate/insufficient proof of need for FMLA/CFRA leave. FMLA/CFRA protection does not handcuff employers, but adverse action must be well-reasoned and consistent with prior action. Document, document, document. If any employee is not eligible for or has exhausted FMLA/CFRA leave, employers must still assess whether other leave rights (such as under the ADA, FEHA, or PDL) apply.

Thank You! Q & A