The goal that the FMLA, the California Family Rights Act (CFRA), the Pregnancy Disability Leave (PDL) requirements under the California Fair Employment and Housing Act (FEHA), and similar legislation in other states have in common is job retention, meaning that these laws are designed to provide qualified employees with the right to take time off to care for themselves or family members without losing their jobs. Balancing employees’ rights to leave and reinstatement after leave against an employer’s interest in smooth business operations may prove difficult. However, systematizing the process can go a long way toward relieving compliance anxiety.
Since employers are seen as superior in their ability to understand these laws due to their larger resources (and access to legal counsel), employers are required to notify their employees about their rights under the laws. As a practical matter, this involves being able to explain what employees must do in order to qualify for and receive leave. Merely posting copies of official governmental notices will satisfy certain legal requirements, but will not help an employee navigate an employer’s processes. Since failure to comply with the laws may result in liability on the employer’s side, it is incumbent on the employer to ensure appropriate compliance, particularly since employees may be covered under more than one law at a time.
Where to begin? First, assemble all necessary legal notices and company policies. Make sure that legal notices are posted and that policies that are consistent with legal requirements are incorporated into your handbook and distributed to employees. While employers may choose to grant greater leave rights to employees than are required by law, please be sure that inconsistencies between legal requirements and company policies are by design, not by accident. At the very least, ensure that the minimum requirements dictated by each applicable law are enforced.
Second, assemble the documentation or databases required to complete the process, from request to reinstatement. This includes such items as a system for determining eligibility, a form for requesting family and medical leave and medical certification forms, and a letter granting leave for a specified period or denying the leave request due to ineligibility. In addition, there should be a letter used to inform employees that their leave is nearing completion, and of any steps (such as getting a fitness for duty certificate) that they must take prior to returning to work.
Third, develop a system, whether a software-based calendar system tied to a database or other method, for tracking the leave and prompting the notification of return to work requirements in a timely manner. Plan for an employee’s return in advance, so that staffing readjustments may be smooth.
Once these systems are in place, the employer is ready to handle requests for leave. When a request for leave is received, the employer should first determine whether the employee is eligible to take leave. For example, under the FMLA, an employee working for an employer with 50 or more employees in a 75-mile radius must have been employed by the employer for at least 12 months and must have worked at least 1,250 hours in the 12 months prior to the leave start date in order to be eligible. In addition, an employee is only permitted to take 12 weeks of leave in a 12-month period. If the employee has either (1) been employed for less than a year or (2) not worked a sufficient number of hours in the prior year, the employee is not eligible for FMLA leave. Furthermore, an employee who is otherwise eligible, but who has already taken some of the year’s allotment of FMLA leave, may only take the balance remaining.
Careful tracking of seniority, hours worked and leave taken is very important to this process, regardless of the method used to manage that data.
Once a request for leave is in process and the employer is carefully ensuring that the employee is complying with medical certification and other requirements, the employer must also determine how best to deal with the absence of the person on leave. Whether other staff members can absorb a leave taker’s duties or whether temporary personnel must be brought in is a case-by-case decision. However, the employer should notify any replacement, at hire or transfer, that the position is a temporary one. The employer must accept the fact that she may not refuse to reinstate the employee on leave just because she prefers the replacement’s performance. While there are narrow exceptions to the reinstatement requirement, employers are cautioned to seek advice of legal counsel before refusing reinstatement under any circumstances.
Many policies provide that an employee who fails to return to work after the completion of leave will be considered to have resigned from her position. In the case of an employee whose failure to return to work is unrelated to his/her health, enforcement of this policy may be appropriate. However, if an employee cannot return for reasons related to a health condition or disability, the employer must be prepared to evaluate the situation in terms of disability rights laws to determine whether additional unpaid leave is a reasonable accommodation. Accordingly, employers should be mindful of the potential need for flexibility on the return to work date.
Clearly, there is much to remember in relation to family and medical leave. A formalized process incorporating standardized materials and protocols will help managers comply with legal requirements with confidence. For more detailed information about FMLA eligibility and leave issues, go to http://www.dol.gov/elaws/fmla.htm, for Calif. law: http://www.dfeh.ca.gov/Statutes/cfra.asp.
Melissa Calhoon and Daniel T. Berkley are both of the Berkley Law Group, P.C. and can be reached at (415) 989-7711 or at info@berkleylawgroup.com.
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