San Francisco Employment Law Firm Blog

The FMLA provides that employee are eligible for FMLA leave if they have worked at least 12 months for an employer, worked 1,250 hours during the 12 months immediately prior to requesting leave, and work at a location that has 50 employees within 75 miles. This requirement, however, creates uncertainty when an employee has joint employers, such as when the employee is working at a site through an off-site temporary agency. Under such circumstances, the regulations provide that when the employee has worked at least 12 months at a worksite, the employee will be considered to be employed where he physically reports. 29 C.F.R. section 825.111(a)(3).

This means, for example, that the employee, referred by a small temp agency to work at a large company shouldn't be concerned about being ineligible for FMLA leave, as it's the size of the number of employees at the physical location where he works that determines his eligibility; not the size of the temp agency.

In the past, compliance issues have arisen when evaluating FMLA leave requests by employees who telecommute / work from home. The regulations now confirm that the worksite for such employees is the location where they report and receive assignments, and not their physical location. This is logical, as counting employees at home wouldn't make any sense.

The whole idea behind FMLA criteria is imposing this obligation on the larger employers and providing this benefit to employees who have already provided substantial benefit to the company over the period of time. Whether an employee works from home or not does not and should not matter under the circumstances. 29 C.F.R. section 825.111(a).

To find out more about FMLA and CFRA leave, check out this FMLA/CFRA comparison chart prepared by the Department of Fair Employment and Housing.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Family Medical Leave Act (FMLA)

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Under the law, where the employee's FMLA/CFRA certification is unclear about his health condition and his/her ability to return to work, an employer's policy may lawfully require an independent medical examination (IME) to determine the employee's fitness to return to work.

For example, in one case, an employee who was on FMLA leave because of a chronic back problem, submitted her treating physician's certification that she may return to work. However, her doctor also stated that she should "avoid stressful working conditions." Finding that FMLA certification confusing, the employer used its customary practice, incorporated in the collective bargaining agreement, and informed employee that an independent medical exam was required for her to return to work. The employee refused the exam, and as a result was fired. The court found that the employer did not violate FMLA.

Where the employee has been timely notified that a fitness for duty report will be required and has failed to provide the report, the employer may refuse to reinstate the employee until the certification is provided. If an employee does not provide either a fitness-for-duty report or a new medical certification for a serious health condition at the time the FMLA leave is concluded, the employee's position may be lawfully terminated.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Family Medical Leave Act (FMLA)

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One common issue with regard to leaves of absence between an employment and an employee arises when the employee is absent due to being sick or other health-related reason. The employer may try to avoid it's obligations under FMLA (Family Medical Leave Act) or CFRA (California Family Rights Act) by claiming that the employee's absence while being sick was unexcused and thus unprotected under the law, if the employee didn't specifically request FMLA / CFRA.

This argument is without merit, however, according to California courts, which repeatedly held that an employee doesn't have to use "magic words" such as FMLA and CFRA to be eligible for a qualified leave of absence. It is generally sufficient to place the employer on notice triggering the employers obligation under California law if the worker contacts the employer shortly before or shortly after being absent, advising the employer of the reasons of his absence and providing medical documentation or other objective proof of having the underlying health condition.

This position of California courts makes sense, as it would be unreasonable to expect an employee to be familiar with the specific legal terms, such as FMLA and CFRA, and actually use them in order to receive the medical leave of absence benefits that he or she would be entitled under the law. It is sufficient that the employer is placed on reasonably clear notice of its employee's medical condition to trigger the employer's FMLA/CFRA obligations.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Family Medical Leave Act (FMLA)

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A qualifying employee (who worked for his employer for 1,250 hours or more during the past year for a company with 50 or more employees within a 75 mile radius) invokes his CFRA / FMLA rights when she asks for leave for her own serious health condition or that of a family member, and need not mention CFRA or FMLA by name in order to be entitled to leave. The employer may grant the leave without ever requesting medical certification. However, if the employer requires such certification, it should do so either at the time that the employee gives notice of her need for leave or within two business days thereafter, or - if the leave of the employee was unforeseeable - within two business days after the employee's leave starts. Cal. Gov. Code section 12945.2(j)(1), (k)(1).

Under CFRA, the certification is legally sufficient if it includes the dates on which the condition started, and the estimated time the employee will require the leave. Once an employee provides adequate certification of her serious health condition, the employer must grant the leave, unless it has "reason to doubt the validity of the certification." The employer may request an employee to undergo a second or third opinion of his condition if and only if the employer has a reason to doubt the validity of the original certification provided by the employee. Employers are required to obtain the opinion of a second and third doctor before denying leave or terminating an employee because of doubts about the validity of certification.

If you believe that you suffered an adverse employment action or were wrongfully terminated in retaliation for exercising your rights under FMLA / CFRA, contact San Francisco employment lawyer Arkady Itkin to discuss your rights.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: California Family Rights Act (CFRA) , Family Medical Leave Act (FMLA) , Retaliation , Unemployment Benefits

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California Family Rights Act (CFRA) is a part of FEHA (Fair Employment and Housing Act) and generally provides that it is unlawful for an employer to refuse an employee's request for up to 12 weeks of family care and medical leave in a year. An employer is also forbidden from discharging or discriminating against an employee who requests family leave or medical leave. Family care and medical leave includes leave because of an employee's own serious health condition that makes the employee unable to perform the functions of his position. "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either of the following: (a) Inpatient care in a hospital, hospice, or residential care facility; (b) Continuing treatment or continuing supervision by health care provider.

To be eligible for CFRA leave, an employee must have more than 12 months of service with the employer and have at least 1,250.00 hours of service with the employer during the previous 12 months of employment. It is important to note that this condition must be satisfied not at the time the employee suffered an adverse employment action (termination, suspension, etc.), but whether the employee was eligible to take CFRA leave when she took the leave that resulted in adverse employment action.

It is also unlawful to retaliate against an employee for exercising his rights under CFRA. The Dudley v. Caltrans 90 Cal.App.4th 255 was the first court to outline the elements of proving CFRA retaliation, adopting FMLA retaliation analysis used by the federal courts. The court concluded that the elements of retaliation claim under CFRA are as follows: (1) the defendant was the employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercise her right to take leave for a qualifying CFRA purpose, and (4) the plaintiff suffered an adverse employment action, such as termination, fine, demotion, or suspension because of her exercise of her right to CFRA leave.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: California Family Rights Act (CFRA) , Family Medical Leave Act (FMLA) , Retaliation , Wrongful Termination

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California Family Rights Act (CFRA), an equivalent of the federal FMLA legislation, allows qualifying employees to take up to 12 weeks of time off work when suffering from serious medical condition. Generally, and employer does not have to trust the employee's word that he or she is or has been ill and thus unable to come to work, and the employer has the right to insist on having a medical certification to that effect.

However, some employer require the employer or the medical provider to disclose details of the medical condition of the employee who is seeking to take leave of absence under CFRA. In most cases, it is unlawful for an employer to require disclosure of such information, and disciplining or terminating employee for failure to disclose such information is no defense to CFRA discrimination, retaliation and wrongful termination claims.

The California Supreme Court has recently clarified the obligation and limitation on medical certifications that employers are entitled to obtain under CFRA in Lonicki v. Sutter Health Cent. 43 Cal.4th 201 (2008). The court looked closely at the language of the applicable legislation - specifically, California Government Code 12945(k)(1) and noted that by stating that an employee's certification “shall be sufficient” if (a) it contains the commencement date of the employee's health condition began, (b) the “probable duration of the condition,” and (c) a statement that the condition renders the employee unable to do the job, subdivision (k)(1) of section 12945 limits the type of information that an employer can require an employee to provide in a certification. For example, an employer may not require an employee seeking medical leave to provide detailed intimate and private information about a serious psychiatric condition that has made the employee unable to do the work, nor may the employer deny the employee's request for medical leave for failing to provide such information. This law also limits an employer's right, in litigation arising out of an employee's medical leave request, to claim that the employer acted reasonably because the information provided by the employee was inadequate.

Thus, if an employer fires an employee who has given the employer a legally valid certification for medical leave, and the employee then sues for violation of the CFRA, the employer may not defend the suit by asserting that the employee, when requesting leave, provided insufficient evidence that the employee fell within the provisions of the CFRA.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Employee Privacy , Family Medical Leave Act (FMLA)

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At the conclusion of leave under Family Medical Leave Act (FMLA) or California Family Rights Act (CFRA), an employer must reinstate an employee to the same or an equivalent job, unless he or she is a "key employee" who is given appropriate notification. One main limitation on this rules is that the employee returning to work is not entitled to reinstatement if unable to perform an essential function of the position because of physical or mental condition, including the continuation of a serious health condition.

In order to be deem equivalent, the alternate position must be virtually identical to the prior position in terms of pay, benefits, and working conditions, and involve substantially similar duties and responsibilities. In one case, a nurse who formerly worked a day shift was offered a full-time night shift position with the same duties and benefits, or a part-time day position with reduced benefits. As a matter of law, that offer was not an offer of an equivalent position. Hunt v. Rapides Healthcare System LLC (2001). An employee returning after FMLA leave may not be disqualified from bonuses which are not related to performance, but need not be credited with time spent on FMLA leave when the bonus is based on employee's total performance or production.

If a salaried employee is deemed a "key employee" and reinstatment would result in substantial and griveous economic injury to an employer, the employer may deny reinstatement after propery notifing the employe and affording that employee an opportunity to forgo the leave or return from leave. 29 USC 2614(b)(2).

A key employee is a salaried employee who is one of the highest paid 10% of all employees within 75 miles of the employee's worksite. The determination of "key employee" status is made at the time an employee gives notice of the need to leave. 29 CFR 825.217(c)(2).

Reinstatement of a key employee may be denied if the return to the position (not the absence) would result in "substantial and grievous economic injury" to the operations of the mployer. However, an employer must give writen notice to the employee of his "key employee" status and the potential consequences of reinstatement rights. An employer who does not give timely notice to a "key employee" loses the right to deny reinstatement even if substantial and grievous economic injury will result. 29 CFR 825.219(a).

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Family Medical Leave Act (FMLA)

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Many employees who request leave under FMLA (Family Medical Leave Act) for one of the approved medical conditions are concerned about their ability to work at a different job, possibly part time, while being on FMLA leave. The are some good news for employees on FMLA. The California Supreme Court recently held in Lonicki v. Sutter Health Central that if a full-time, during the period in which medical leave was sought, continued to perform a similar job for another employer on a part-time basis, this does not conclusive establish the ability to do the job for the original employer. A showing that an employee is unable to work in the employee's current job is enough to demonstrate incapacity.

The court further explained that when a serious health condition prevents an employee from doing the tasks of an assigned position, this does not necessarily indicate that the employee is incapable of doing a similar job for another employer. For example, a job in the emergency room of a hospital that commonly treats a high volume of life-threatening injuries may be far more stressful than similar work in the emergency room of a hospital that sees relatively few such injuries. And again, the circumstance that one job is full time and the other is part time may be significant.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Family Medical Leave Act (FMLA)

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The federal Family and Medical Leave Act (FMLA) provides job security to an employee who is absent from work because of the employee's own serious health condition or to care for a specified family members with serious health conditions, as well as for the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee.

Employees eligible for FMLA are entitled to 12 workweeks of leave in a 12-month "leave year." An employee may take FMLA leave for any of the following reasons: (1) the serious health condition that makes the employee unable to perform the essential functions of the position; (2) the serious health condition" of a spouse, child or parent; (3) the birth of a child or to care for such child; or (4) the placement of a child with the employee for adoption or foster care.

Employers may require medical certification of the existence of a serious health condition. Further, FMLA leave is unpaid unless available paid time off is taken (e.g. vacation, paid sick time or paid personal time off) and/or unless disability beneftis are available.

At the conclusion of an FMLA leave, the employee must be reinstated to the same or an equivalent job, unless he or she is a "key employee" who is given appropriate notification. An employer must maintain health plan benefits for an employee on FMLA leave on the same basis as if the employee were actively employed; and all benefits, including those that lapsed during the leave, must be restored immediately upon the employee's return to work.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Family Medical Leave Act (FMLA)

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