Event Archive

Navigating the Duty to "Reasonably Accommodate" & Engage in the "Interactive Process"

   

Contact Info

Landegger Baron Law Group

Marie. D. Davis

Marie@landeggeresq.com

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

NOVATIME TECHNOLOGY, INC.

Kyle Glave, Sales Director – Eastern Region

Kyle.glave@novatime.com

9680 Haven Ave.
Rancho Cucamonga, CA 91730
(909) 895-8100

Questions & Answers:

Q1

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

A1

Yes. It must be a spouse for FMLA. However, in California the CFRA takes precedence and does cover registered domestic partners.

Q2

Is Pregnancy Disability Leave only protected in California?

A2

Yes, the Pregnancy Disability Leave Act is California only. However, there is a pregnancy discrimination act federally that serves to protect a pregnant individual from wrongful termination.

Q3

What happens if an employee's FMLA ends and there is no open position the employee is qualified for?

A3

You are obligated to hold their position open for the 12 protected weeks. If their leave is extended longer, you can place a new individual in their position, however you may not fire them. You must notify them that you are accommodating their extended leave and that upon return to work, they will be placed in the first open position they qualify for.

Q4

If an employee does not qualify for FMLA do we have to hold their job? If so, for how long?

A4

You do not have to hold their individual job open, but you still need to provide the Leave of Absence, keep them on your payroll roster and offer them a qualified position if one is available when they return.

Q5

Who does an employee see to file an FMLA violation charge?

A5

If they were fired (in California) they would go to the Labor commission or the Department of Fair Employment and Housing, or simply consult a plaintiff attorney.

Q6

Is there a statute of limitations for suing an employer for an FMLA violation?

A6

It’s 1 year to file a discrimination charge. You have 1 additional year to file a civil lawsuit. Federally, under FEHA, 2 years for wrongful termination suit.

Q7

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

A7

Yes. The system can alert the employee or employer. It is still highly recommended that you follow up, communicate and document everything with the employee face-to-face.

Q8

At what point can an employer replace a position of an employee on a long-term LOA?

A8

Not until they at least exhaust their 12 weeks.

Q9

What if an employee is out for workman’s comp and it is longer than the leave requested? Is the only way the employer can stay informed is by calling the employee asking for updates or contacting the workman comp carrier

A9

Both. And you don’t necessarily need updates, just send the FMLA letter to both the employee and the workman’s comp carrier.

Q10

If the Employee is already out on leave, but ADA hasn't been approved, how do you have a face-to-face interactive process? Do you ask the employee to come to the office? Do you go to their home?

A10

Once an Employee is out on an FMLA leave of absence, or any other leave of absence (say, just a few weeks granted by his doctor), you do NOT need to do anything, except grant the leave. Once the employee can return to work, and has a doctor’s note that provides restrictions, THEN you must engage in the interactive process, go over the job description and the restrictions, and find a reasonable accommodation.

Q11

When accommodating physical and mental disabilities - how do emotional disabilities fit into these?

A11

They are covered. All an employee needs is a doctor’s note with restrictions. The result may be that you cannot accommodate, so in that case, the accommodation may be another leave of absence.

Q12

Is it possible to get generic letters for loan leaves on the different stages? - Initial, extended, returned

A12

There is just one, the standard FMLA letter. We can provide this, please email the attorney.

Q13

Can a different Doctor extend or take the employee out of work?

A13

Yes. All that matters is that a doctor has placed them on leave.

Q14

Is the NOVAtime system able to interact with the current payroll, HR system?

A14

NOVAtime provides powerful and effective options for integrating a wide variety of third-party payroll software. The payroll bridge enables export into multiple formats, including PDF, Excel, Rich Text, HTML, and CSV files. Not all payroll bridges are available in all the product lines. Please contact NOVAtime for details.

Q15

I have an employee that has some issues, both with medication effects and with add type issues in the mornings and has documentation from Dr. stating that the employee needs extra time/flexibility in reporting to work in the morning. The employee is not consistent in arrival times but has no essential tasks due at any particular time. My question is, can my accommodation be to adjust work hours to a later time frame with a fixed start/end time, or must I allow the employee flexibility to arrive when they can with no specific start time to hold them accountable to. We have a tardy policy that everyone else is held to.

A15

You can start by adjusting their start time. IF they continue to come into work late, you can meet with them again and re-adjust the schedule. If the schedule simply becomes too burdensome for you, then you can place them on a leave of absence. But the bottom line is that yes, you must treat the employee differently from the other employees and be less stringent as to your attendance and tardiness policy.

Q16

If the employee signed a severance agreement can they still file a wrongful termination?

A16

No, so long as the severance agreement contains full and general release language, and in California, waiver 1542.

Q17

What do you do if management insists that the leave will be a hardship, and you have advised them that FMLA/ADA would not look upon it as a hardship, and they still terminate the employee?

A17

Document your advice and let them know that most likely their actions will result in a lawsuit. The issue of “undue burden” is an issue that can only be resolved in Court. So, they may be able to win, but the employee can still file the lawsuit, and the employer will have to spend thousands of dollars hoping that they can prove that the accommodation is an “undue hardship.” I would not recommend it.

Q18

Will the letters for changing from FMLA to extended leave be available?

A18

Please contact the presenter.