Event Archive

ADA, FMLA, & Intermittent Leaves

   

Contact Info

Landegger Baron Law Group

Marie. D. Davis, Esq.

Marie@landeggeresq.com

15760 Ventura Blvd. Suite 1200
Encino, California 91436
(818) 986-7561

NOVATIME TECHNOLOGY, INC.

Scott Rose, Sales Director

Scott.Rose@NOVAtime.com

9680 Haven Ave.
Rancho Cucamonga, CA 91765
(909) 895-8100 x-7181

Questions & Answers:

Q1

Is it correct that FMLA does not account for “registered domestic partners” the way CFRA does?

A1

Correct. FMLA only covers spouses.

Q2

“Transfer to a less strenuous or hazardous position/duties (if available)” - is this an alternative or in conjunction with other leave?

A2

This is for pregnancy disability leave. This is an alternative to leave to accommodate the employee in lieu of leave. If you cannot provide accommodations, then you should place the employee on leave.

Q3

If accrued paid leave use is required but the leave runs out, is the employee still compensated for FMLA? Is this from the state or employer?

A3

In California, disability is paid up to a year. The employer only pays a small portion of this.

Q4

If employee leave is more than 12 weeks, can employer terminate the employee but make them rehireable?

A4

No. Do not terminate them. Keep them on your books. Report them as payroll 0 and when they return, offer them the first position for which they are qualified.

Q5

Can we stop employee's FMLA if he/she has returned before the hours were completed?

A5

Yes. They will save the rest that way.

Q6

Is there a statute of limitations for bringing a lawsuit against an employer for termination of employment under FMLA?

A6

3 years federal. 1 year state.

Q7

Can NOVAtime alert the employee if they have not worked the 1250 hours through the Time and Attendance system?

A7

Yes, through NOVAtime’s FMLA module.

Q8

Does CFRA cover anything OTHER than baby bonding? So if an employee is out on disability and the 12 weeks of FMLA is up, but the disability is unrelated to pregnancy or baby bonding, then is there no additional 12 weeks?

A8

CFRA runs concurrently with FMLA unless the employee takes FMLA due to pregnancy. In that circumstance, the employee can begin her 12 week baby-bonding leave after her FMLA and pregnancy disability leave end.

Q9

From employee perspective (In Cleveland, Ohio, working for city) does an employee have any recourse if disciplined for something that happened at work while they were on FMLA for spouse? - blamed and reprimanded for something that was not his fault and was resolved

A9

In this case, it sounds like you could take legal action but please contact presenter with more specifics for a complete answer.

Q10

Does Pregnancy Disability Leave only apply in California?

A10

Yes. Except that under the FMLA, an employee can take FMLA for incapacity due to childbirth.

Q11

I have an underperforming sales person who has just gone out on maternity leave. She does not qualify for FMLA (remote employee). How would you handle her return after 12 weeks? Do we need to offer her job back?

A11

You need to communicate with her throughout her leave. I would not recommend terminating her while on maternity leave regardless of whether the leave qualifies for FMLA. The problem is that she can still argue that the real reason for her termination was pregnancy.

Q12

What about a person that has applied for FMLA due to iron deficiency issues and calls off last minute all the time about every other week---sometimes half days sometimes full days sometimes just late. When that FMLA expires, will this qualify and does the company need to consider this as an ADA accommodation. I might also mention they are in a high-level position.

A12

We should probably talk separately about this employee, but if the employee has a bona fide doctor’s note stating that accommodations/restrictions are required, then you, as the employer need to “engage in the interactive process” with the employee to determine, what, if any, accommodations are needed. You can contact me separately for more information.

Q13

With employer designated intermittent FMLA leave, what would be a reasonable notice timeline? For instance, if it comes to your attention a few weeks later that an employee has had numerous intermittent absences due to a serious health condition can you go backwards?

A13

It depends. I always advise that the employer not go backwards if more than 2 weeks have passed. Going backwards in that scenario, when the obligation is on the employer, can look like retaliation.

Q14

I have someone currently out on an accommodation that should not have been approved. He has not filed paperwork twice, and now has more restrictions and we feel has become a hardship. Can we place them on leave because we cannot accommodate him?

A14

Most likely, yes, but I need more specific information. What you need to do is have a meeting with the employee, discuss his or her essential job functions, go over the job description, discuss the doctor’s restrictions, and determine whether any accommodations can be made. If in fact, no accommodations can be made (but I would again want to discuss), then yes, you can put the employee on a leave of absence as a reasonable accommodation as well.

Q15

If an employee & their manager didn't tell HR that the employee was going out for surgery until after the employee is already off work, can we then retroactively apply FMLA since we are sending out the notification as soon as we were notified?

A15

Yes.

Q16

During all of these ADA extensions, do we have to continue health coverage?

A16

Only through COBRA, due to a lack of hours, NOT termination.

Q17

Because we have people all over California, we've opted to base all of our paid sick leave on the San Francisco ordinance since it has the most employee-friendly requirement. Is SF the best for the employee? Are we in compliance by doing this? We've had a hard time keeping up with all of the individual city requirements.

A17

Yes, San Francisco is the most generous, so following that sick leave policy would be recommended.

Q18

For part time employees paid sick leave... Do we enter 48 hours lump sum on annual basis until the employee reaches the accrual cap?

A18

only if you have employees in Los Angeles. Otherwise, you can choose to have the employees accrue sick time at the rate of 1 hour for every 30, OR upfront 24 hours.

Q19

Is disability leave with EDD still unpaid for the first 7 days?

A19

Yes. Which is technically ONE workweek of 5 days and one weekend.

Q20

What happens when FMLA ends and there is no position open for which the employee is qualified?

A20

You have to engage in the interactive process with the employee. Once the employee is ABLE to return to work (regardless of when FMLA ended), you have to go over all of the open positions and offer one that the employee is qualified for. If at that time, the employee is not qualified for any position, write it all down, and then you could terminate. What is important to remember is that if an employee is out on leave, 12 weeks expire, and they need another 8 weeks, you cannot say “we have no open positions, so you’re fired.” What you say is “when you are released to return to work, contact us and we will discuss placing you in the first available position for which you are qualified at that time.” There is an important distinction there.

Q21

How do you charge intermittent leave against their entitlement leave time when employees work a varied work schedule? Particularly when leave moves from a regular to intermittent leave.

A21

You just have to keep track of all of the hours when the employee takes any intermittent time.

Q22

You mention you don’t have to hold their job but offer a job that is available that they are qualified for. If there is no job they are qualified for but here is a job does that matter?

A22

You have to engage in the interactive process when they are ready to come back to work. You have to discuss what positions are open, what the essential functions for that position are, and whether the employee qualifies. IF the employee does not qualify for ANY position at the time they are ready to come back to work (regardless of when their FMLA expired), then you can terminate. Nevertheless, it is a process.

Q23

What is the percentage of coverage with disability with California EDD? 65 or 70?

A23

it is about 66%. Tax-free. So pretty close to a take home pay.

Q24

FMLA-If an employee wants to recertify their existing certification that is coming to an end and does not have the 1250 work hours ( on a rolling year) will they be eligible for recertification?

A24

No, but you still need to give them the leave of absence. Explain that they do not qualify for FMLA, explain the reasons why, and then say “as a reasonable accommodation,” we will grant you a leave of absence.

Q25

When someone asks for FMLA (ex: maternity--way in advance), we provide an FMLA Rights letter. At what point do we provide the Designation letter? As soon as requested, or upon leave? I ask because dates are usually not known exactly until leave begins with maternity. In other words, Does timing of designation re: timing of notice matter, or can designation notice be upon leave start?

A25

FMLA designation starts when the employee actually needs to take hours/days/weeks off.

Q26

If an EE does not qualify for FMLA do we have to hold his job? And if so how long?

A26

You do not need to hold his exact job, but you cannot fire him. You place him on a medical leave “as a reasonable accommodation,” explain that the leave does not qualify for FMLA leave, and that when the employee has been released to return to work, you will place him in the first position for which he is qualified. You can’t just terminate him outright. You can replace him, but if there are ANY open jobs when he is ready to return, you have to offer them.

Q27

Can an employee refuse a LOA even if the employer knows that he/she may need one - meaning the employee is unwilling to take the employers advice? Is there something that the employer can do?

A27

I need more information about this one. An employer cannot force a leave. The employee needs a doctor’s certification and the employer cannot inquire into the reasons for the leave.

Q28

Where does an employee go to file an FMLA violation charge?

A28

In California, the DFEH; any other state, the EEOC.