Episode 36: CalChamber Employment Law Experts Discuss Most Common Questions Concerning Medical Leaves

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's General Counsel and Executive Vice president. And today on the podcast, we are asking the experts. Two of Cal Chambers employment law experts, Bianca Sod and Matthew Roberts, are here to discuss some of the most frequently asked questions we get at our seminars and on our Labor Law helpline. Welcome, Matt.

Good afternoon, Erica.

Welcome, Bianca.

Good afternoon, Erica.

All right, gang, this promises to be a great discussion on some of those challenging issues that our members call us all the time on the Labor Law helpline. And Matt and Bianca accompany me on all of our training seminars. And they get these questions live all of the time as well. Bianca and Matt, welcome, welcome, welcome. Matt, talk to me. What's a frequently asked question that you've been receiving?

Yeah, thank you, Erica. It's a pleasure for me to be here. Actually.

One thing that we deal with with our members is that many of our members are larger employers. And some of the leave laws we have here in California as well as federally apply to larger employers, only one of which is the Family Medical Leave act, also known commonly as the fmla. Pretty frequently employers will ask us, our employee is on FMLA and their time on that leave is about to expire. What do we do with this employee?

Now, Matt, just to put into context, what is FMLA and what does it allow an employee to do?

Yeah, so fmla, as I said, is the Family Medical Leave Act. California also has one called the cfra. For all intents and purposes, today they're about the same thing. The purpose of the leave is to provide an employee who has a serious medical condition the opportunity to take job protected leave away from their employment up to 12 weeks in one calendar year.

Now, does the employee have to qualify for that?

They do. There are eligibility requirements for the employee. Generally speaking, they need to have worked for the employer for at least 12 months prior to taking the leave. They need to have worked for 1,250 hours in the course of the previous 12 months. And they also need to work at a location that has at least 50 or more employees within a 75 mile radius.

Now, Matt, you talked about this being a large employer issue. What's the threshold for an employer to have to follow the FA?

Yeah, if you're an employer with 50 or more employees, you're covered by both the FMLA and California's equivalent.

So what are some of the questions you receive regarding fmla?

Sure. So very often I'll get a call in from a member who says, we have an employee who's been out on FMLA for 11 weeks. They're only allowed 12 during the course of the year. So they're supposed to be coming back within a week, but the employee has told us, I'm not going to be ready to come back within that week. What can we do with the employee? Can we fire them? Do we have to continue to let them be on leave? What is the issue there?

So what is the issue? What's the answer?

Absolutely. So a common mistake employers will make is assuming that once a job protected leave like FMLA is over, that that's the only obligation the employer has to meet. As I said before, the FMLA accommodates a serious medical condition for an employee which is also a covered disability under our American with Disabilities act and our Fair Employment and Housing act here in California. And so because of that, employers also have this separate obligation, separate from the fmla to reasonably accommodate their employees. In a lot of cases that can mean extending the leave of absence, but that's something that you get to after engaging in the interactive process with the employee.

So let me just make sure that I got a grasp on this. So an employer who gets a call from their employee or finds out from their employee who is on FMLA leave that they are not going to be able to return to work upon the conclusion of their 12 weeks of FMLA leave in that case, then there is the possibility that that employee gets another extended leave under the ADA or the Fair Employment and Housing Act.

Yeah, that's absolutely right, Erica.

All right, so in other words, employers should not be assuming or going straight to the letter that says, we are so sorry, but we can no longer continue employing you because your 12 weeks has expired under FMLA.

Yeah, absolutely not, Erica. And in fact, there's a huge casebook of examples of employers who have done where the courts have said that's not proper. You need to have engaged in the interactive process as well.

So just to kind of round this out, what should employers do and what exactly is this interactive process?

Yeah, so the interactive process is designed really as an informal conversation with the employee and the employer to determine what accommodations exist to help the employee return to perform the essential functions of their job or essentially help the employee come back to work. In the cases where somebody is on FMLA leave with a serious medical condition, their may be other accommodations out there that exist beyond leave that will help them return to work. That's what the interactive process is designed to do, is to explore what reasonable accommodations exist, understanding that at the end of the day Leave just may be the only reasonable accommodation that exists.

And I can understand how that is a complicated issue that employers face. Often is what do we do next if that 12 weeks is about to expire, but the employee is not ready to come back?

Yeah, very complicated. Once you get into that situation, it's. It's a good idea to get legal counsel and work through that process with them.

Thank you, Matt. Welcome, Bianca. So tell me, what are some of the frequent questions you receive on the helpline?

Yeah, I get a lot of questions, actually, from smaller employers who want to know about employees who might need time off a leave of absence. So for those smaller employers that are not covered under FMLA and cfra, but they have an employee who maybe is needing time away from work because due to a disability, for example, and they need that reasonable accommod just because they're not covered employers under FMLA and cfra, there is still an inquiry and a process that needs to take place. So employers who have five or more employees are going to be covered under California's Fair Employment and Housing act and under the federal Americans with Disabilities act for those with 15 or more employees, those employers are all going to still need to go through that interactive process that Matt talked about and look at whether or not a leave of absence is going to be a reasonable form of an accommodation.

Okay, so you guys both are talking to employers regarding very similar situations. It's just the laws might change or be different depending upon the size of the employer.

That's exactly right.

Is that typical in California? Do we see a lot of laws that are triggered based upon the size of the employer?

Oh, yeah, that's very common. A lot of times, depending on the law and depending on whether it's state law or federal law, there are basically employee number thresholds that apply and that will trigger certain laws.

So when you're speaking with the smaller guys, Bianca, you know, you do have to talk to them about that interactive process and the fact that, yes, you may not be under FMLA or cfra, which was what Matt was talking about, there still is an obligation to engage in this interactive process. And I always like to say it's a fancy way of just saying talk to your employee, figure out what's going to work, what kind of changes or modifications may need to be made. And it's not always a leave of absence. It could be other arrangements. So I can understand that sometimes for small employers that might be hard to grasp or to understand.

Yeah, definitely. It is something that it can be challenging. And one Thing that is different, you know, when you're dealing with FMLA and cfra, there are very clear rules, regulations that the employers can follow. When you fall into what I like to call this kind of feeha land, under California law, there are no bright line rules. And it's really going to be a case by case basis. It's going to depend on your particular circumstances, the size of the employer, the nature of the business and what the business needs and what the employee needs. And that's where that interactive process is important in terms of kind of balancing the two out and to see what can be done as far as an accommodation.

So Matt, when you're not answering large employer questions, do you have similar questions from smaller employers as well?

Absolutely. Reasonable accommodation is one of the most common things we hear about. It's one of the most common issues that employers deal with. Many things qualify as a disabling condition now within California. And one of the most important aspects of working within the interactive process and reasonable accommodations are those job descriptions that define your essential functions of the job. And so it's important for the employers to be able to define what it is that the employee does. So that way when they go back to the employee, they can understand, okay, you do X, Y and Z. How can we help you do X, Y and Z. Does that mean we need to give you some kind of ergonomic desk? Does that mean we need to just give you time off because you just can't do it, but you'll heal in a few weeks? Those are the kind of conversations that you have with the employee and you just use those essential functions of the job to help guide that conversation.

And Bianca, picking up on what Matt has just said, does the employer also, does the employee work with his or her physician as well to help craft some of the modifications or accommodations?

Yeah, absolutely. It's going to be, you know, it's a two way street. It's a mutual process. Both parties have responsibilities. So the employee is going to need to work with their physician, take to their physician, you know, their job description, what their essential functions are, and working with the physician as far as, because the physician will know what the limitations are and crafting, you know, a suggestion as far as how this can be accommodated. And it may be a back and forth process. The first shot might not make the basket and you might have to use that as a starting point. And that's why it's a process and not just an event.

Well, thank you, both of you. I can imagine that these calls and questions that you receive regarding this topic can oftentimes be lengthy and oftentimes can maybe be complicated at times too, since I think, Bianca, you were the one that had said that it's a case by case basis. There are no clear lines when we get out of the statutory leave laws in California. Well, thank you both. I know that you are a tremendous resource to our California employers and members who speak with you very frequently on Cal Chambers Labor Law Helpline. So thank you for joining us today.

Thanks for having us. Thank you.

Erica.

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