Managing employee absences is one of the trickiest topics under the human resources umbrella. While we say in our employee handbook that regular attendance is an essential function of the job, the day-to-day task of handling employee absenteeism, and juggling the myriad of related legal issues, becomes a nuanced dance through a minefield. These machinations have become even more complicated for small employers in California, now that the California Family Rights Act (CFRA), California’s version of family medical leave, applies to employers with as few as five employees. That is pretty much every one of you.
So, let’s break this down.
FMLA Leave (federal and state): For purposes of this discussion, I am going to refer to FMLA leave as leave that is protected under either the federal Family Medical Leave Act or California Family Rights Act. Under most circumstances, these two laws run concurrently, and for the most part, they are triggered by the same circumstances.
FMLA leave comes in to play when an employee needs to take time off to care for a seriously ill family member OR for their own serious health condition. It only applies to employees who have worked for the organization a total of 12 months and 1250 hours in the prior 12 months. But if an eligible employee is missing work and that absence may qualify as an FMLA absence, the employee does not have to make a formal request for that leave. Once the employer is on notice that an employee’s absence may qualify, that time off is most likely protected. It is then up to the employer to advise the employee of their rights and send them a request for a medical certification. There is a form under federal law we often use for this purpose, but it can also be done via a letter, email, or even text message.
Dealing with absences under FMLA is challenging for several reasons. First, there is the broad definition of “serious health condition.” Under both federal and state law, a serious health condition may be any illness which lasts more than a few days. It could be a bad cold or a stomach flu. But a serious health condition can also be a chronic health issue, such as migraines, depression, or even bad allergies. An FMLA leave may also be triggered by a worker’s compensation injury, although leaves for a work-related injury may extend beyond the FMLA 12 weeks.
Intermittent Leave: The other challenge to dealing with FMLA is the fact that it may be taken in increments as small as two hours. If an employee arrives to work late, leaves early, or must miss work due to a doctor’s appointment for themselves or a family member, those absences may, too, fall under the FMLA cloak (and indeed, other leaves, such as PDL, below).
One last nuance – FMLA may also be used to bond with a newborn in that baby’s first year of life. Many employers recognize that new mothers can take this 12 week leave and take it in addition to the leave they would receive under California’s Pregnancy Disability Leave (PDL). Unlike FMLA, even new employees and part-time employees may be eligible for PDL; the part-time employees only receive a prorated amount, based on the amount of time they are regularly scheduled to work. Full-time employees are entitled to up to four months or 88 workdays, for the length of the pregnancy disability only. But then, if eligible, they can take another 12 weeks of leave for baby bonding under California’s version of FMLA.
What many employers forget, however, is that fathers (or other co-parents) are entitled to baby bonding leave as well. Also, either parent can take this FMLA leave at any time during that baby’s first year of life. Consequently, you could have a new mother take off four months under PDL, take another six weeks off under CFRA, and then save the other six weeks to take off later in the baby’s first year. Then of course, once the 12-month calendar starts over, the employee receives another 12 weeks of leave to care for that baby, themselves, or any family member who may have a serious health condition. I discuss the interaction of PDL and FMLA, below.
And what if the employee either refuses to provide medical certification or doesn’t wish to log these absences against their FMLA entitlement? A recent Ninth Circuit case has suggested that we cannot force an employee to use this FMLA leave. However, if the employee specifically refuses to count their absences toward FMLA, that may leave open the employer’s right to hold the employee accountable for their attendance issues.
PDL and CFRA : While FMLA and California’s CFRA usually run together, under California law, CFRA does NOT run concurrently with PDL – Pregnancy Disability Leave. As I say above, in California, employees are entitled to up to four months (88 workdays) for time off related to disability related to pregnancy and childbirth. Those absences can start in the early days of an employee’s pregnancy, lasting throughout and going beyond the delivery date. That time off must be tracked separately. Unlike FMLA, employees are eligible from day one, and part-time employees receive pro-rated PDL.
And no, employees do NOT have to disclose their pregnancy status when they interview or upon hire, and you cannot fire them for failing to do so.
PDL v PFL: Now is a good time to point out that PDL is NOT the same as PFL, notwithstanding that even legal experts and AI get them confused. Paid Family Leave, or PFL, is not actually a “leave” at all. It is a wage replacement benefit under California law, and functions much the same as SDI (State Disability Insurance). Employees apply for PFL when they are missing work due to baby bonding or caring for a seriously ill family member. But PFL does NOT extend the time that employees get to take off from work – it only pays employees for this time off. An employee may be eligible for PFL but not for job protected time off under FMLA/CFRA.
However, even though PFL does not extend an employee’s right to be off work, the ADA (Americans with Disabilities Act) and its state counterpart under California’s Fair Employment and Housing Act, just may. And here is where this area gets REALLY messy.
Reasonable Accommodation and Additional “Leave” under the ADA: Like the discussion above, for purposes of this article, I am going to refer to the state and federal laws jointly as the ADA.
Unlike FMLA, the reasonable accommodation requirements under the ADA apply from day one. Indeed, the ADA applies to job applicants as well as current employees. There is no minimum number of hours or days needed to work to trigger an employer’s obligation to reasonably accommodate under the ADA.
But like FMLA, the obligations of the ADA may not always be obvious. The term “disability” is broadly defined, especially under state law. It could be high blood pressure, bad eyesight, or anxiety. I once had a Judge rule that a bunion qualified as a disability under the ADA, and that was back in the 90s.
The other tricky issue is that a reasonable accommodation may take the form of a leave of absence, just like FMLA. That leave of absence requirement can apply to employees who are not yet eligible for FMLA or whose FMLA or PDL leave has already been exhausted. And the length of the leave must be “reasonable.” How do we determine that? The courts give us some guidance, but this is a very open-ended inquiry.
And this additional right to leave is the key. Even if an employee is not technically entitled to an FMLA leave of absence by law, if they are missing work for their own disability, they may well be entitled to a leave under the ADA as a reasonable accommodation.
The rules regarding reasonable accommodations under the ADA are even more difficult than navigating FMLA conditions. The courts and agencies look at a balancing test when determining what may be a reasonable accommodation and what may become an undue financial hardship to the employer. At this juncture, employers must engage in an “interactive process” with their employees to determine what may be considered a reasonable accommodation. This is some of the most difficult analysis we employment lawyers encounter, and sometimes even seasoned experts will reach different conclusions on any given issue. Every circumstance is unique.
Because these “interactive process” calls often fall into a legal gray area, employee side lawyers love these cases. Other than wage and hour cases, we see some of our biggest settlements in the leave of absence and disability accommodation arena. And in many cases, it is all about the documentation.
Documenting Time Off: The documentation part is where employers really struggle, but documentation is KEY. As many of you know, we spend multiple pages of an already lengthy employee handbook dedicated to discussing leaves of absence. But that is only part of the battle. When employees miss work, YOU, as the employer, need to remind employees of these leaves of absence and track them accordingly. The burden is on US, not THEM, to track this time off and put it in the appropriate bucket. There are expansive and expensive HRIS systems designed to help employers manage these tricky leaves. You do not have to utilize those products, but you do have to find a way to manage and document these leaves otherwise.
The Paid Sick Leave Wrinkle: So here is the added nuance. In California, and in local jurisdictions like Los Angeles, San Francisco, and San Diego, we have paid sick leave. Even if an employee does not qualify for any other leave or is taking time off that is NOT related to a disability, they have sick leave rights. And while that employee has sick leave available, if they take time off which qualifies as a sick leave absence, you may not use that absence against them for disciplinary purposes.
All this means that once an employee starts to miss work, you need to know why. Your managers need to know why. And if that absence may qualify under FMLA, PDL, sick leave, or a possible accommodation for a disability, you cannot use it for any type of disciplinary purpose. Instead, you need to engage with the employee to determine if the absence qualifies under any leave law or begin the interactive process conversation.
As lengthy as this article is, I am not even going into the kind of detail that many do about this very complicated area of the law. Also, there are several protected leaves I have not even discussed (leaves for domestic violence, school visitation, military purposes, organ donation, jury or witness participation, just to name a few) . My goal here is to flag these issues so you can call us when they arise. This is the stuff of expert analysis- DO NOT TRY THIS ALONE AT HOME. If you have an employee missing work who you either know or suspect may fall into the world of FMLA, ADA, or another leave, reach out. We will walk through the minefield together.
