Welcome to a new series on Muse and News called Leave on Me. In this series we will explore the nuances of federal and state leave law. Leaves of absence and the laws that surround them can be exceptionally complicated. There are many different types of leave of absence: Family Medical Leave Act (FMLA); California Family Rights Act (CFRA); Disability Leave; Kin Care; Pregnancy Disability Leave; and several non-traditional leaves. In future posts we will get into specifics of each of these leaves, as each leave requires certain different requirements. In this first post we will break down the the basics of leaves of absence.
One of the first factors when considering a leave of absence matter is determining whether or not the employer in question is a covered employer. A covered employer is an employer who is required to comply with specific leave laws. Determining whether the employer is covered is usually determined by looking at how many employees the employer has. For example, both FMLA and CFRA only applies to employers who have a minimum of 50 employees within a 75 mile radius.
The next factor is going to be whether the employee is entitled to leave. Generally this is determined by looking at how long the employee worked for the employer and why the employee is seeking a leave. Using our previous example of FMLA, only an employee who has worked for 12 months for an employer within the previous year and seeks leave for a serious health condition of the employee or the employee's spouse, parent, child or baby bonding is eligible for FMLA leave.
Employers are required to post in the workplace, the guidelines and process for employees to know how to give notice for a leave of absence. The employee must let the employer know that they are seeking to take a protected leave. The employee or the employee's representative may give notice of the leave. The employee should let the employer know the duration of the leave and must give reasonable notice. Reasonable notice is generally 30 days or as soon as practicable.
Once the employer is on notice that the employee seeks to take leave, the employer is then required to provide to the employee their eligibility for leave within 5 business days. If an employee is not eligible for leave, the employer must let the employee know why they are not eligible. Employers must also inform employees of their rights and responsibilities in writing, informing the employee of any required documentation they must provide, whether the leave is paid, how the employee's leave is determined and terms of reinstatement. Employers must also inform an employee whether they are required to pass a fitness for duty assessment to return to work.
Reasonable Accommodation/Interactive Process/ Undue Hardship
Reasonable accommodation generally refers to any accommodation afforded to an employee who is returning from a leave. A reasonable accommodation can be an extended leave, reduced hours from full time to part time, or a requirement that an employee must sit most of the day and not lift more than 15lbs. What is considered a reasonable accommodation for a returning employee is determined in an interactive meeting between management and the employee. During this meeting the employee and management consider what the employee needs to be able to return to work or continue to heal, balanced by what may or may not constitute an undue hardship on the employer. What will constitute an undue hardship for an employer will depend on a case by case basis. Determining a reasonable accommodation for an employee does not require an employer to waive essential job duties. If an employee is required to reach certain productivity standards, and all employees in the same position are required to achieve those same standards, the employer does not necessarily need to waive them for a returning employees.
Next week we will dig deeper into two of the most popular leaves, FMLA and CFRA.
If you are having a leave of absence issue contact the attorneys at The Rad Firm, APC to discuss your issue with experienced employment attorneys.