Articles Posted in Medical Leave

If you are bringing a lawsuit against your employer for violating your medical leave rights, there are a number of possible important reasons why you should consider including only FMLA, only CFRA or both claims in your lawsuit, even if they appear to be in many ways similar:

  • Avoiding removal of your case to federal court. If you include the federal FMLA claim, in some cases you employer will have the right to remove your case from State to Federal Court. While this is not the end of the world, there are a number of important advantages to pursuing your case in State court, and if there is a way to prevent removal, you should consider suing the employer only under CFRA. If removal is not an issue, however, then including both FMLA and CFRA claim might be advantageous to maximizing your right to recover damages, as mentioned below.
  • Individual liability under FMLA. Interestingly, under FMLA (but not CFRA), individual managers may be held liable for violating your FMLA rights if you can show that a specific individual exercised control over your employment and the decision to terminate.  Nardodetsky v Cardone Industries, Inc. (E.D. Pa. Feb. 24, 2010). However, no individual liability exists under CFRA and only the organization can be held liable.  While you might not necessarily want to go after the personal pockets of the manager who terminated you, including individual defendants in the lawsuit can be strategically advantageous by applying additional pressure on the employer to spend more money on defending the case, providing access to broader discovery in the case, and therefore – “encouraging” the employer-defendant to consider settling the case sooner than later.

New Parent Leave ActUntil now, the main law in California that afforded parents to take time off for babying bonding, adoption or foster care placement has been California Family Rights Act (CFRA / Government Code 12945.2). That protection, however, only applied to employers of 50 or more employees within a 75 mile radius to provide up to 12 workweeks of job protected leave.

Titled the New Parent Leave Act, State Bill (SB 63) / section 12945.6, which went into effect as of January 1, 2018, requires employers within 2o to 49 employees within a 75 mile radius to provide up to 12 workweeks of job protected leave for an employee to bond with a new child within one year of the child’s birth, adoption or foster care placement. As with CFRA and FMLA, an employee will need t have worked more than 12 months and at least 1250 hours for the employer during preceding 12 month period to qualify for leave under New Parent Leave Act. Like with CFRA, employers must guarantee reinstatement. This law also authorized an employee to use accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer during parental leave. Employers must also maintain and pay for an eligible employee’s medical coverage under a group health plan for the duration of parental leave.

This new law has similar anti-discrimination provisions to those found in CFRA and FMLA. The New Parent Leave Act prohibits employers from refusing to hire, discharging, suspending, or discriminating against an individual for either exercising the right to parental leave or for testifying about his or another employee’s parental leave in an investigation or legal proceeding, or for interfering with, restraining, or denying any rights provided by this law.

San Francisco sick leave lawIn addition to California law, San Francisco sick leave law applies to all employees who are employed within the geographic boundaries of the City and County of San Francisco by an employer. Every employee, whether exempt or non-exempt, full time or part time, permanent or temporary, who is employed in California for thirty days or longer will be entitled to accrued paid sick leave at the employee’s regular rate of pay. There is a limited number of exceptions to this coverage. The main exception is those employees who are covered by a collective bargaining agreement (union agreement) that specifically provides for accrual of sick leave.

Sick Leave Accrual 

Sick leave accrues at a rate of not less than one hour per every 30 hours worked, counting from the first day of employment. Exempt employees are deemed to work 40 hours per week, unless the employee’s normal workweek is less than 40 hours.

FMLA protectionMany employees (and employers) misunderstand what FMLA protection means. They assume that this protection provides them with a certain immunity from being terminated – i.e. that they cannot be terminated while on FMLA leave no matter what. This is not entirely correct for at least two main reasons:

First, an employee who requested FMLA leave or who is already on FMLA leave can be terminated for any legitimate reason that any other employee could be fired. This includes such typical reasons as misconduct, insubordination, policy violations, and performance issues.  That employee can also be laid off like anyone else due to workforce reduction, restructuring, etc. The fact that the reason provided does not seem to be fair does not make that termination illegal. FMLA prohibits discrimination on the basis of exercising FMLA rights; it doesn’t mean that the employee should be treated better or with more lenience than other employees. Thus, if you were terminated anyway, requesting FMLA leave is not a shield from that termination. Of course, if you are terminated while on medical leave or shortly after requesting it, it creates a suspicion that the true reason for your termination is exercising your FMLA rights, which would be illegal. However, timing of termination relative to FMLA leave is generally not enough to provide FMLA discrimination and retaliation. An experienced attorney should be able to evaluate your termination in light of all the circumstances surrounding it to advise you whether there is sufficient evidence to make a claim of FMLA violation against your employer.

Secondly, even if your termination would be illegal under FMLA, the employer can still choose to violate the law and fire you, and then deal with the legal consequences of illegal firing, if and when you decide to pursue a case against them. In fact, employers often intentionally violate the law and fire employees illegally because they just don’t want them around any more and they are willing to pay for it by spending money on defending the case against them and paying out settlements.

cfra medical leave rightsCFRA medical leave is intended to give employees an opportunity to take leave from work for certain presonal or family medical reasons without jeopardizing their job security. Nelson v United Technologieis (1999). Generally, CFRA makes it illegal for an employer of fifty or more employees to refuse to grant a request by an emloyee to take up to 12 weeks off work in any twelve month period for family care and medical leave. The goal of CFRA is to both prevent the effects of employment discriination and also promote CFRA’s specific goal of promoting stability and economic security in California families.

Employers subject to the CFRA medical leave laws are required to provide notice to thier employees of the right to request CFRA leave. Cal. Code. Regs, tit. 2, §7297.9(a). At the same time an employee who wishes to exercise his right to leave under CFRA should compy with Cal. Code Regs, tit. 2 §7297.4(a)(1): “An employee shall provide a tleast verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even moention CFRA of FMLA, to meet notice requirement however, the employee must state th reason the leave is needed, such as for instance, the expected birth of a child or for medical treatment. The employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken by that employee.

For example, in Mora v Chem-Tronics, Inc. (1998), the court held that when an employee stated to his employer that his son was HIV positive and had a very high fever and that the father could not leave his son when he was so ill, it was sufficient notice of the son’s serious medical condition as a matter of law for the purposes of obtaining CFRA leave.

adobe-leave-policiesOn Monday, Adobe Systems became the latest tech giant to sweeten its parental leave policy for its employees. The San Jose-based company is now offering new moms 26 weeks of paid time off through a combination of medical and parental leave. This is up from the nine weeks leave with 100% pay it previously guaranteed.

The policy update provides for 10 weeks of medical leave for surgery, childbirth, or a medical emergency—up from seven weeks—and 16 weeks of paternal leave that’s available to any primary caregiver who becomes a parent through childbirth, surrogacy, adoption, or foster care. Fathers who aren’t the primary caregivers have access to four weeks of paid paternal leave—up from the two weeks they received before.

This move to expend leave policy for new parents comes one week after Netflix announced its own groundbreaking parental leave policy, which gives new moms and dads unlimited time off in the year following the birth or adoption of a child. Microsoft followed this trend by announcing a new 20-week leave offering for new mothers.

when your fmla leave is deniedAn employer who without intent to deceive makes a definite but erroneous representation to this employee that he is eligible for FMLA leave and has reason to believe that the employee will rely upon it, may be estopped to later claim that an employee wasn’t eligible for FMLA and therefore should not have been granted that leave. It does not matter for the purposes of this issue whether the employer intentionally mislead the employee initially about being eligible for FMLA or whether it was an innocent mistake on that employer’s part.

A number of cases recognize this doctrine of “equitable estoppel”. The Kosakow v New Rochelle Radiology Assocs. (2001) court held that the employer was estopped to claim that the employee was not eligible for FMLA when the employer’s unintentional misleading behavior caused the employee to justifiably rely on the FMLA leave. In Woodford v Community Action of Greene County, Inc. (2001) the court cited with the employee, where the employer initially approved notice of eligibility for FMLA leave, but later sought to challenge it.

This doctrine of equittable estoppel is an important tool for employees who initially have their

working-while-on-fmla-leaveMany 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.