Lisa_E_Agioar_Leave_Requirements
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Transcript Lisa_E_Agioar_Leave_Requirements
FMLA, CFRA, PDL, WC and
ADA:
Deciphering the Alphabet Soup of Leave
Requirements
Lisa E. Aguiar
Mandatory Leaves/Time Off
Medical/family care
School
Voting
Military
Jury/witness
Crime/domestic violence/sexual assault
“Kin care”
Emergency duty
Mandatory Leaves/Time Off
Medical and Family Care
►
Family and Medical Leave Act (FMLA):
• 50+ employees
►
California Family Rights Act (CFRA):
• 50+ employees
►
Pregnancy Disability Leave (PDL):
• 5+ employees
►
Workers Compensation (WC):
• All employees
►
Paid Family Leave (PFL):
• All employees
Mandatory Leaves/Time Off
School
►
Employees entitled to 40 hours per
year to participate in school
activities:
• 25+ employees
• Can limit leave to no more than 8 hours
per month
• May require use of accrued vacation,
personal leave or PTO
Mandatory Leaves/Time Off
Voting
►
Must grant up to 2 hours off to vote:
• All employees
►
No requirement to pay employees
Mandatory Leaves/Time Off
Jury/Witness
Must grant leave to employee who
is summoned to jury duty: all
employees
► Payment of wages
►
• Non-exempt: no requirement to pay
• Exempt: no deductions (but may be
offset with jury pay)
Mandatory Leaves/Time Off
Sick leave for “Kin care”
If employers offer sick leave must
allow employees to use half their
annual accrual to care for a sick
child, parent, spouse, etc.: all
employees
► Interplay with FMLA/CFRA
►
Mandatory Leaves/Time Off
Emergency Duty
Must grant temporary leave of
absence to employees engaged in
voluntary fire or law enforcement
training: All employees
► Length of leave: up to 14 days per
year
►
Workers’ Compensation Leave
Must be Provided When:
Employee is employed by employer at
time of injury
Employee was acting within course
and scope of employment when
injured
Employee’s injury is caused by the
employment, either with or without
negligence
Caution: Workers’ Compensation may
cover injuries at home
Reinstatement of Injured
Employee
Does FMLA/CFRA apply?
Reinstate to same or similar
position
Engage in discussions re:
necessity for accommodation
Family Medical Leave Act (FMLA)
California Family Rights Act (CFRA)
Applies to employers with 50 or more
employees
Requires employer to allow qualified
employees to take 12 weeks of leave
in a 12 month period for the:
►
►
►
Birth/adoption of a child
Employee’s own serious health condition
To care for certain family members who
have a serious health condition
Benefits and Other
Requirements
Must continue to provide medical
benefits
May require use of vacation or PTO
(must have policy)
►
Except if receiving other benefits (SDI,
PFL, etc.)
May require use of sick leave if for the
employee’s own serious health
condition
Must reinstate to same or comparable
position
►
(Exception for key employee)
Pregnancy Disability Leave
(PDL)
Applies to employers with 5 or
more employees
Requires employers to grant up
to 4 months leave for a disability
related to pregnancy
Interplay between FMLA, CFRA
and PDL
Benefits and Other
Requirements
Not required to continue medical/dental
benefits (unless continued for other
temporary disability leaves)
May require use of sick leave (must
have policy)
May not require use of vacation or
accrued PTO (employee may use at her
option)
Must reinstate to same position
Paid Family Leave (PFL)
Family temporary disability
insurance program that provides
employees up to 6 weeks of
partially paid leave per year to:
Bond with a newborn or adopted
child, or
► Care for a seriously ill family
member
►
Key Components of PFL
No minimum hours/days worked
requirement
Employers may require use of
two weeks of vacation
One week waiting period
Americans with Disability Act
(ADA)
Fair Employment and Housing Act
(FEHA)
Requires business with 5 (FEHA)
and 15 (ADA) or more employees
to reasonably accommodate
disabled individuals in hiring,
firing, benefits and other terms,
conditions and privileges of
employment
ADA/FEHA
Protects a qualified individual
with a disability: An individual
with a disability who, with or
without reasonable
accommodation, can perform the
essential functions of the
employment position that such
individual holds or desires
What is a Disability?
Has a physical or mental
impairment that limits a major
life activity
Has a record of such impairment
Is regarded as having an
impairment
What is an “Essential
Function” of a Job?
The fundamental job duties of
the position
The reason the job exists is to
perform that function
Employer always determines the
essential functions of a job
Reasonable Accommodation
Any modification or adjustment
in a job, an employment practice,
or the work environment that
allows an individual with a
disability to enjoy an equal
employment opportunity
Examples of Reasonable
Accommodation
Job restructuring
Part-Time or modified work
schedules
Reassignment to a vacant position
Acquiring or modifying equipment
or devices
Leave
FMLA, CFRA, PDL, WC and ADA:
Deciphering the Alphabet Soup
of Leave Requirements
Lisa E. Aguiar, Esq.
Ropers Majeski Kohn & Bentley
50 West San Fernando Street
Suite 1400
San Jose, CA 95113
(408) 918-4555
[email protected]