Life isn't always predictable. Be it the birth of a child or being hampered by an illness or disability, workers in California can feel vulnerable and helpless in such situations especially with questions over finances and continued employment hovering over their heads. There are a number of questions that might arise in these situations. How much time will I get to bond with my newborn or adopted child? Could I get laid off when I'm caring for my newborn? Is the leave paid or unpaid?
The answer to these questions can be complex and not understanding applicable laws could cost a worker his or her job or even career. An experienced California employment lawyer can help you better understand these laws and the steps you should take to protect your job, financial security and future.
California Employees Have Protections
Federal laws and state laws in California help protect employees from unjust actions by employers at a time when they are bonding with their children, are recovering from an illness or caring for a loved one who is ill or disabled. There are two primary laws that apply in these cases – the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act of 1991.
As an employee, you are entitled to receive up to 60 working days or 12 workweeks per 12-month period of unpaid leave for a qualified reason. This means that when you are on leave because of an illness or because you had a new baby, your employer cannot terminate your employment.
These laws provide employees not just with job protection, but also the right to reinstatement. These laws also help ensure that the employee's medical and other benefits continue and are covered by the employer during the period of absence. It is important to note that both laws specifically prohibit employers from taking retaliatory action against employees for taking such a leave of absence.
Requirements and Eligibility
California employers are required to comply with FMLA if they have at least 50 employees. Employees are eligible to go on family or medical leave. Employees are eligible for FMLA if they:
- Have been with the company for at least a year
- Have worked at least 1,250 hours during the previous year
- Work at a location with at least 50 employees within a 75-mile range of that worksite
- Are bonding with a new child – whether or not they gave birth or are adopting
- Are recuperating from a serious health condition
- Are caring for a loved one with a serious health condition
- Are dealing with crisis situations stemming from a family member's military service
- Are caring for a loved one who suffered serious injuries during active military service
- Require prenatal care or are suffering from pregnancy-related illnesses or complications
What Constitutes a Serious Health Condition?
To qualify for medical leave, the employee should suffer from an illness, injury, impairment, physical or mental condition that requires inpatient care (at a hospital, hospice or nursing facility) or continuing treatment by a healthcare provider. Typically, minor ailments such as the flu, common cold, headaches or routine dental problems are not considered serious health conditions under FMLA. However, the flu may be considered a serious health condition where there are complications and the patient requires hospitalization or other forms of inpatient care.
According to the Department of Labor, a serious health condition involves:
- Any period of incapacity or treatment involving inpatient care at a hospital, hospice or residential medical care facility.
- An injury or illness that requires the absence of more than three calendar days from work, school or other regular activities and which also involves continuing treatment by a healthcare provider.
- Any period or incapacity due to pregnancy or for prenatal care
- Any period of incapacity that is permanent or long-term due to a condition for which the treatment may not be effective such as a stroke, Alzheimer's disease or other terminal diseases.
- Any absences that the employee may take to get multiple treatments such as chemotherapy, radiation, dialysis, etc.
It should be noted that missing work because of alcohol or substance abuse issues doesn't make an employee eligible for FMLA leave. But, if it is a result of what is considered to be a "serious health condition," the leave may be taken for treatment by a health care provider or in a facility referred to by the healthcare provider.
The employer may be required to provide leave under the California Family Rights Act for drug or alcohol rehabilitation if the addiction is considered a serious health condition under the law. California's Labor Code section 1025 requires private employers that have 25 or more workers to reasonably accommodate employees who are voluntarily entering alcohol or drug rehab programs as long as such as accommodation does not impose undue hardship on the employer.
Requesting Medical Leave
For employees to receive protections granted to them under the law, they need to first make their employer aware of their situation and their need for leave. Employees are required to give their employers at least a 30-day notice ahead of their leave. If the necessity for leave is not foreseeable, then the notice should be provided "as soon as practicable."
There are several steps employees can take to make sure the process goes smoothly:
- Be sure to submit a doctor's note so you clearly establish your medical condition and the reason for your inability to continue work.
- Get all the information to your employer in writing. You could send a fax, an email or a note in certified mail. You could also take it directly to the Human Resources Department. Always keep a copy of all correspondence for your own records. It is important that you have a paper trail that shows you gave your employer notice in a timely fashion.
- You need to provide medical records as well. Do not give your employer access to medical records. But be sure to keep your employer informed and substantiate your information. Your employer may require that you provide medical certification from a healthcare provider to establish your need for leave.
Requirement for Medical Certification
If your employer requires certification, they must provide notice of such a requirement in writing and state clearly what the consequences are for not providing the certification. Under federal law, you must provide medical certification within 15 days of your employer's request. Failure to provide certification is excusable when it is not practical for you to do so such as when you are hospitalized and are unable to do the work necessary to get the certification.
Your medical certification should contain details including the doctor's name, address and contact information; date when the medical condition started; the probable duration of your condition; and that you are unable to perform job duties because of the serious health condition. Your employer does have the authority to send you to another doctor to get a second opinion. But, they are required to pay for it. If there is a conflict between the first and second opinion, your employer may request a third opinion from another doctor, which will be binding.
Extending Your Family and Medical Leave
Once the 12 weeks have expired, it is possible to get more leave as a reasonable accommodation under the California Fair Employment and Housing Act or the Americans with Disabilities Act (ADA). While you may not have job protection in such a situation, you will still be protected from retaliation or discrimination. If you have injured family members on active duty, you may be able to take up to 26 weeks of leave under the FMLA within a 12-month period to care for your loved one who was injured while serving. Also, a birth parent can take leave under the FMLA for 12 weeks and may take 12 additional weeks to bond with her newborn child.
In a majority of the circumstances, an employee doesn't have to take the leave continuously. He or she may take it intermittently or deal with it as a reduced work schedule. For example, he or she may go from a full-time to part-time schedule. Such leave should be granted as long as there is a qualifying reason. The employee, at the same time, should make a reasonable effort to schedule the treatment to prevent the disruption of the employer's operations.
Understanding Your Rights
Employees have the right to be reinstated into the same position when they return from family or medical leave. If they cannot be reinstated to the same position they had prior to the leave, they are entitled to an equivalent position with the same duties, privileges and perks. This means the same pay, shift/schedule and location. For example, your employer cannot reassign you to a location that has significantly more commuting or requires you to move. Employee benefits such as medical insurance, vacation, sick leave and pensions should also remain the same unless all employees had their benefits changed when you were on leave.
Employers are also required under the law to post your leave rights and information about filing complaints in situations where violations have occurred. The law states that the notice should be posted in "conspicuous places" where it is readily visible to all employees. Failing to post this information properly could lead to a $100 fine for the employer per violation.
Employers are also required to notify employees by providing leave and benefit details in a handbook and distribute a copy of the notice to each new employee at the time of hiring. The law also states that an employee cannot waive his or her rights and an employer cannot encourage an employee to do so. For example, an employee cannot trade his or her right to leave with another benefit such as more vacation time or extra pay.
Employers are also required to maintain group health insurance coverage at the same level when you were working. If your health insurance coverage included dependents, then your employer would have to maintain coverage for them when you are on leave. This also applies to other types of insurance such as dental or vision.
Retaliation and Compensation
A retaliatory action by an employer toward an employee who has utilized family and/or medical leave is illegal. Such retaliation could occur before, during or after a leave of absence. An employer may, for example, fire or lay off an employee when he or she is on leave. In other cases, the employer may change the employee's job position or job duties upon his or her return. When an employee is treated differently or given other job duties, that amounts to adverse treatment.
If you suspect that your employer has violated the Family and Medical Leave Act in California, it is important that you gather documents and evidence to support your claim that there was a violation of the law. Some of the important pieces of evidence you will need to substantiate your claim include:
- Employment agreements or contracts you have with your employer
- Doctor's notes, medical reports and other documentation that support your request for leave.
- All correspondence including e-mails, text messages, memos etc. relating to your leave request.
- Wage statements or pay stubs you have received.
- Previous job assessments and reviews by supervisors.
- Any disciplinary notices you may have received from your employer.
- Copies of employee handbooks and policies
If your employer has retaliated against you or violated the Family and Medical Leave Act, you may be able to seek and receive compensation including lost wages and benefits including back and front pay; attorney's costs and fees; compensation for past and future pain and suffering; and in some egregious cases, punitive damages.
It would be in your best interest to retain the services of an experienced Los Angeles employment lawyer who has a through knowledge and understanding of the law. There are a number of nuances and complexities in such cases and pursuing your rights without a skilled attorney on your side can be tricky. An experienced lawyer will also help you avoid some of the pitfalls these types of complicated cases present and help ensure that you receive justice and maximum compensation for your losses. Call Kingsley & Kingsley at 888-500-8469 to schedule your free, comprehensive and confidential consultation.