Presented By: Leighton Davis Henderson FMLA, CFRA, and PDL: Interactions and Updates Disability Management Employer Coalition (DMEC) October 2015 Chapter Meeting | October 14, 2015

2 Leave Laws The Family and Medical Leave Act (FMLA) The California Family Rights Act (CFRA) Pregnancy Disability Leave (PDL)

3 Employers Required to Comply FMLA/CFRA –All public employers –Private employers that employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year PDL –All employers with five or more employees (full or part time)

4 Eligible Employees FMLA/CFRA –Employed at Least 12 Months –Worked at Least 1,250 Hours During the 12 Months Preceding the Leave –50 Employees Within 75-Mile Radius PDL –No eligibility requirements

5 For What Reasons is Leave Permitted? FMLA/CFRA –“Bonding” Time with Newborn, Also Adoption and Foster Care –Care for Child, Parent or Spouse with Serious Health Conditions, Including Psychological Comfort –Serious Health Condition That Makes Employee Unable to Perform Functions of His/Her Position

6 For What Reasons is Leave Permitted? FMLA Only –Serious Health Conditions Related to Pregnancy –Military-Related Leaves  Qualifying Exigency Leave  Military Caregiver Leave CFRA Only –Leave to Care for Registered Domestic Partners

7 For What Reasons is Leave Permitted? PDL –Pregnancy-related disability, i.e., because of pregnancy, woman cannot perform one or more of the essential functions of her job or cannot perform any of these functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons

8 How Much Leave Time? FMLA/CFRA –12 Workweeks of Leave in a 12-Month Period FMLA Only –26 Workweeks for Military Caregiver Leave PDL –Up to 4 Months (17 1/3 weeks) per Pregnancy

9 Types of Leave FMLA/CFRA –Continuous Block of Time –Reduced Leave Schedule  Part-Time –Intermittent Leave  Portion of Workweek

10 Responding to Leave Requests FMLA –Eligibility notice –Rights and responsibilities notice –Designation notice  Provide within 5 business days CFRA –Respond within 5 business days

11 Medical Certifications Employer Can Require Medical Certification to Verify Serious Health Condition Timing –When employee requests leave or within 5 business days –Employee must provide certification within 15 calendar days Intermittent Leave/Reduced Leave Schedule –Certification must address medical necessity

12 Medical Certifications Employer Contact w/Health Care Provider –FMLA  HR professional, leave administrator, management official or health care provider may contact employee’s health care provider to clarify or authenticate medical certification. –CFRA  Employer may not contact health care provider for any reason other than to authenticate a medical certification.

13 Medical Certifications Second and Third Opinions –Employer may require 2nd opinion at employer’s expense if it has “good faith, objective reason to doubt the validity of the certification.” –If 1st and 2nd opinions differ, employer and employee should jointly designate a third health care provider. –Third opinion is final and binding.

14 Medical Certifications Certification for Parent, Child, Spouse, or Registered Domestic Partner –Must be Accepted if Properly Filled Out –No Second or Third Opinions –If for family member, must state that participation of the employee is warranted

15 Recertification FMLA –Generally permitted every 30 days –In all cases, employer may require every 6 months CFRA –Upon expiration of the estimated time in certification –Employee asks for additional leave

16 All Leaves Are Unpaid What About Using Accrued Time Off? –FMLA/CFRA  Employees May Elect/Employers May Require Employees to Use Paid Accrued Leave  May Not Require Employee to Use Sick Time for Ill Family Member –PDL  Employer May Require Employee to Use Accrued Sick Leave During Otherwise Unpaid Portion of Leave  Employee May Request to Use Sick Leave, Vacation Leave, Paid Time Off and Any Other Leave Credits

17 Maintenance of Health Benefits FMLA/CFRA –Maintain Same Level of Health Benefits  Includes Vision, Dental, etc.  Flex Credits PDL –Maintain Coverage Under Group Health Plan

18 True, False, or Maybe An employee is entitled to 12 weeks of leave under the FMLA and another 12 weeks of leave under the CFRA. MAYBE

19 FMLA, CFRA, and PDL Special Interaction Between FMLA, CFRA, and PDL Pre-birth Disability Post-birth Disability “Bonding” Health Care FMLA and/or PDL FMLA and/or CFRA CFRA Job Protected FMLA and/or PDL FMLA and/or CFRA CFRA 4 Weeks6 Weeks2 Weeks10 Weeks

20 FMLA, CFRA, and PDL Special Interaction Between FMLA, CFRA, and PDL Pre-birth Disability Post-birth Disability“Bonding” Health Care FMLA and/or PDL PDL CFRA Job Protected FMLA and/or PDL PDL CFRA 8 Weeks4 Weeks 12 Weeks

21 Reinstatement After Leave FMLA/CFRA –Right to Same, Equivalent, or Comparable Position –Fitness-for-Duty Certification –Employee’s Obligation to Report on His/Her Condition –No Reinstatement if Position Eliminated Through Layoff PDL –Right to Same or Comparable Position

22 Expiration of Leave What if employee exhausts all FMLA, CFRA, and/or PDL leave and requests more time?

23 Questions? Leighton Davis Henderson Attorney | Los Angeles |