Unlock the Legal Benefits of eSignature Lawfulness for Leave of Absence Agreement

How to eSign a document: e-signature lawfulness for Leave of Absence Agreement

good morning everyone we're just giving it one more second so that people can join in and then we'll start the webinar if you're just joining the slide handout will be in the webinar chat I will drop it in there a couple of times during the presentation so you have time to download it I think we can get started good morning thanks for joining us today for our webinar titled demystifying leaves of absence expert guidance for California businesses this is part one of a part of a two-part uh series on leave of absence presented by ethos human Capital Solutions and murab Robinson and Clarkson law corporation my name is Denise KY and I am your moderator for this session and I want to go over a couple of quick housekeeping notes before I introduce today's uh expert panel the webinar will run approximately 60 minutes we will leave some time to answer some of your questions at the end of the webinar if you need to leave the webinar before the conclusion the link to the webinar will be sent out afterwards and also it does get posted on the ethos YouTube channel and on the mhab Robinson YouTube channel so they'll both be posted later on I keep adding the link to the slides I'll do that again when we're done so that you can get your slides uh if you have questions that you'd like to ask during um the presentation we will do those at the end but you can post them in the Q&A area anytime during the presentation if you like your question directed to a specific person please make sure that you list that in the question if you have issues during the during the presentation you can email me directly at Denise mky atgmailcom quick reminder that today's webinar is being recorded and all accompanying materials are protected by copyright our presentation today is intended for informational purposes only and should not be relied on in reaching conclusion in any area of law the information offered during the webinar is as of today April 4th 2024 as always we recommend that you consult with your own legal counsel to address your specific situation and to ensure that you have the most current information on all the legal matters our webinar today has been approved for hrci credit there we go if you want credit for your attendance please complete the followup survey when you receive the link upon completion of the survey you will receive your certificate so let's get started today and I'll introduce you there's the little link yeah go I put this in Denise because everybody always says there was no link at the end this is the slide when after you complete your information and you take the survey you'll see a thank you and then you'll see the link right there where you can go download your certificate okay perfect thanks so today our legal expert is Curtis uran Curtis is an associate at the law firm mhab Robinson and Clarkson in the firm's transactional department where he advises clients on real estate Finance business succession planning Curtis also contributes to articles and law journals as a part-time lecturer teaches classes has been named a rising star in Southern California law Super Lawyers from 2017 to 2023 he is also a foodie and a dog lover so that's why we all love Curtis our next presenter is Linda Duffy Linda is the president of ethos human Capital Solutions her team is known for the building of the magic of human connection with their Consulting programs in recruiting training and also payroll support uh the ethos team works with your company by developing strategies for businesses leaders to get the right systems people and culture in place within your organization so that you as a business owner or an HR executive can focus on running your business and achieving the goals Linda's clients range from high-tech businesses to manufacturing firms to nonprofits and she's versed in founder CEO Le businesses Linda is also looking forward to baseball season and tomorrow's going to be her happiest day of the year she just informed us because the Angels home opener so Linda now that great move talking about the Angels started on leave of absence it is true we go from my favorite dat of the Year to my least favorite topic but we will we will get through this today so hi everybody Welcome to our webinar this is our agenda for today so part one of Le of absence is all about individual medical conditions so when your employee you know gets injured or sick or whatever the case is and then next month when we come back we'll talk about the other you know million different leaves of absence that California requires you to provide um we know the common questions that we get from clients all the time so we will address those common questions we have some scenarios built in but we will always save time at the end of our hour to answer your questions so just feel free to drop them into the Q&A section and denisea is monitoring those and then she'll be asking them um asking them among this later so just to get started just to tell you how we've laid this out here are the common questions we sort of have to always know when we're talking about leaves of absence you know starting with is the company even required to provide this particular leave and that's usually tied to headcount um is the employee eligible there will be service requirements there'll be qualifying events right so we'll take a look at those all talk about how much leave the company's required to provide whether you need to reinstate the employee you know does the employee have to give you notice under what circumstances can as an employer can you require the employee to use their acrude sick and vacation time and then how does the leave affect employee benefits so we've laid out each of these leaves that we talked about by answering those questions for you so hopefully uh that will give you some guidance next time an employee comes to with the leaf we've also used a lot of abbreviations so I just wanted to put this page up to let you know if you see ER we're talking about employer e is employee and then all of the different leaves that we're going to be talking about we've used some abbreviations for those as well and with that Curtis let's start talking about FMLA this is the big leave right at a federal level that protects employees when they personally are injured among other reasons um and FMLA is really just applies to companies that have 50 employees in a 75 mile radius so Curtis let me start by asking you if an employer has say 25 employees at their headquarters in Southern California um and they have another another 26 employees right but they're scattered across the country does this law apply to them so this is a good question and it's it's a little bit strange and it's confusing so the answer technically is yes the employer is a covered employer under FMLA if they have 50 employees across the country but if the employees are scattered across the country from uh realistic perspective no employee is going to be eligible for FMLA benefits because employees are only eligible if they work at a facility with 50 or more employees within a 75 mile radius so this gets a little confusing employers that are covered by FMLA but effectively are not going to have any employees that are going to be eligible for FMLA still need to comply with the FMLA requirements that basically when I say that there still need to comply with the notice requirements but each time that employer goes to give a notice requirement that notice is going to say sorry employee you're not eligible because you don't work at a facility with 50 or more employees within a 75 mile radius but the general rule is yes an employer is covered by FMLA if the employee has 50 our employees there's a a handful of rules for how the employer is required to count their employees for compliance with FMLA we're not going to get into many of the the details here in this webinar uh we're really just looking to talk about the the general requirements but just know that if you have temporary staff and employees um if you have employees on a leave of absence um if you are um if you're an owner and you have multiple companies that are related but you have employees that are employed by those those different entities there might be some joint counting rules so just know that um when you're counting employees for the the 50 15lo threshold there are some additional rules that you need to consider you ever have any questions call me call Linda we could we could work work through those with you it would be so great Curtis if the federal government would just Define employee the same way for every single rule we have it make it a lot easier would be nice for that's cting purposes it would be nice if California but also right one one rule for counting for all of their laws but it's um unfortunately the rules for counting are different per statute yeah so if you're you're eligible for this leave again if you satisfy the three standards so one thing is you have to have worked for the company for at least 12 months so somebody that that automatically joins um you know isn't I'm sorry somebody that joins your company isn't automatically eligible for this right out of the gate like they are for pregnancy disability leave and other laws so this one does have a one-year service requirement and you have to have worked at least 1250 hours in that 12 months prior to your leave um and then as we talked about there's a headcount provision and then there's different qualifying events um so the ones listed here you know birth of a child because again you'll see in a minute when we talk about pregnancy and CF um FMLA can run concurrently with the pregnancy disability leave in California and does cover birth of a child where cfra carve that out in California um if you you know adopt a child or have one through foster care covered if you have a seriously ill family member your own health condition which is really what we're focused on today and then also there's military family leave going on to some of the other things just to know that there is um there is a document that you are able to use as you go through here for asking the employee to fill it out and get it back to you for a certification we took a screenshot of this because the federal version of this contains the word diagnosis and Curtis you want to tell tell everybody why that's important to note yeah so California law uh gives them gives employees a little more privacy rights than federal law so um under California law you can't you can't ask with the employees diagnos Jes so we even though the the federal government the Department of Labor has uh created this form I actually prefer not to use this form in California even for for any purpose just because there's a there's a there's a couple items in the forms that don't quite comply with federal law and that's mainly because the federal law is asking for the diagnosis which we can't ask for in California yes so I will give give everybody just a little tip you can actually modify this form and remove that word so yeah that's what we do sometimes although California does have uh similar forms so it's your decision which forms you want to use you can use this but just take out the word diagnosis um make it a little bit easier on everybody and be stay compliant there so for FMLA the length of the leave available is 12 weeks in that 12month period it can be taken intermittently it doesn't have to be taken consecutively it's longer if you're carrying for a service member and what we usually recommend is that you do this on a rolling 12month period I don't know Curtis if you um suggest the same thing because you can use a calendar year you can use any 12mon fixed period of time like from their service anniversary um things like that there's different ways to do it we just feel like if you just do it on a rolling 12 month period it's probably right uh better you agree Curtis I agree um it it also helps prevent employees from taking advantage of FMLA Rights because you don't want an employee to to take 12 weeks at the end of the year and then have a new year start on January 1 and then take another 12 weeks so the goal is really to space it out so that employees are not taken advantage of the law exactly and Curtis one of the questions I know we get a lot is do I have to hold this job open right it's really hard for especially for small employers and even if you have 51 you're you know you don't have duplicates of a lot of different positions so you know under what circumstances do people need to hold the position open % of the time the employer must uh hold the position open we can talk about layoffs and reduction of force um yeah reduction of force I don't really want to get into that into this webinar but for the the most part you have to leave the the position open for the employee or or guarantee reinstatement to the the employee um there are some circumstances where you can refuse to reinstate a key employee like if you're I don't know chief engineer officer who's the only person who does that work needs a leave of absence and you can't afford to have to not have somebody do that work uh you can replace that that key employee and refuse to rein reinstate the person that went on a leave of absence but those are very limited circumstances and if you ever want to try to try to do that try to rely on this exception give me a call give ly a call talk talk through it with us first because it's it's very narrow circumstances yeah I mean we rarely see that come up I mean it's just usually it's any employee and they just don't want to hold a position open and it's unfortunate for the employer but it has to be done that way you have options I mean you can you know have someone fill in his attempt you can have other employees split up the duties there's other things you can do totally understand that it's a hardship um but that's just not an option and then the next question is does the employee is the employee required to give the employer notice and yes if it's foreseeable than 30 days notice you won't always have the option of denying um their leave or postponing is really how I should look at it postponing the leave if they don't give you proper notice under some circumstances you can uh just know that there is an affirmative obligation on the employer to basically offer the leave of absence if you have noticed that one is required and that could be you know you see an employee come in you know and is clearly really sick or you find out that an employee has cancer or you get told something else the employee does not have to say I need an FMLA leave so that's not the notice we're talking about but if you have noticed that um if you have any information that the employee would you know require a leave or triggers the eligibility for a leave then you need to provide the information to them about the leave of absence and the rights so let's talk about the eligibility notice Curtis because this is really the first one the employer has to provide right yeah and this is what you were just talking about at the end of that last slide so as an employer if an employee comes to you and makes a formal request I want to take FMLA FMLA leave the employer has five business days of the initial request to present the employee with written the written eligibility notice that elig eligibility notice but we got another slide that talks about the details on that have to be included in that notice and there are plenty of like we saw earlier there are forms that we can use but the idea the purpose of this eligibility notice is to say employee you've requested FMLA FMLA leave um these are the requirements you've either met or not met the requirements if you've met the requirements you can take FMLA leave it's an automatic right um there we generally cannot deny it or but if the employee does not meet the requirements of FMLA the elig eligibility requirements then you have to state in that notice you are not eligible for FMLA and here's the reason why now I I've said that you know if in employee comes to you and specifically requests I want FMLA you have to do this but like Linda said before even if an employee comes to you and and gives you any kind of notice that the employee might need to take or might be wanting to take time off for an FMLA related reason right we listed them on an earlier slide birth of a child own medical condition immediate family member uh medical condition you still have five business days to give an eligibility notice to the employee and let the employee know hey you can you can take FMLA if you want and here's a form for you to fill out if you want to formally request it it so it doesn't have to be the employee walks into your office and says boss sir or ma'am I want to take FMLA right the the employeee could could text you and say oh I broke my ankle I'm gonna be out for two weeks that's also a trigger you've got five days to prepare the eligibility notice and give it to the employee even if the employee didn't specifically say I want to use FMLA right because never in the history of the world has that ever happened so they might say need to leave of absence or I need time off or like you said I broke my income I'm going to be out for two weeks the other thing on the eligibility notice it may be saying we don't have enough information to decide whether or not you're eligible for leave right so it could be that um you know you're the employee texts you and says that but like the first thing you should be doing is saying hey you may be eligible for this but we don't have enough information have your doctor you know fill this out and get it back to us so the next form is really a rights and responsibilities notice and I know this is a little bit of an ey chart but basically what you want to do is lay out all those details as Curtis was mentioning and things like you know is your job protected um what happens to your insurance you know if you're having if you're paying a portion of the premium out of payroll deductions then what are you expecting the employee to do during that time period right so is the employee going to write you a check each month are they going to double up before they leave and have deductions taken out are they going to double up when they return like what is it you want them to do about that right so there's different things that you need to include on that rights and responsibilities notice once you've made that determination that they're eligible for a leave of absence I I just want to insert here real quick the most common mistake that I see employers make when it comes to FMLA is this eligibility notice not presenting the eligibility notice and filling it out with all the information that was was on that slide because often times a lot of times I get calls from employers that will say this person's been on a leave of absence for three months what do we do and I ask well have they exhausted their FMLA have you done this what what you know what are their circumstances and so many times the response is I don't know and yeah I I I don't mean to just disparage or be negative about do those clients but so many of these problems could just easily be solved by issuing a proper eligibility notice and designating the leave as FM and then counting the the FM M weeks as the the person's on believe of absence yeah we say that all the time too Curtis I mean a lot of our clients are smaller they don't have you know an internal HR person um they have somebody that Drew the Short Straw as I said and got stuck with doing it but they don't know about the requirements in terms of notification and so this employee's been out for weeks they want to know can I let the employee go you know like I had that situation recently where somebody was out on a leave of absence since last November to care for a sick wife right that's one of the times where you can limit their time off to 12 weeks they were gone for that period of time and then the employer wanted to fill the position so I said great you know did you designate the leave when they went out and did you give them the rights and responsibilities notice and they hadn't done anything in writing so I had to tell them you know you can't count that time can't go back retroactively to November and start counting that time so it's really it is an important you know issue to make sure that you document the leave properly in writing that you give them the first notice within five days then you turn around you give them the second notice as soon as you've determined that they do qualify for a leave another question that we get asked a lot is can can the employer require the use of scker vacation and this is sort of generally how I think about a Curtis you tell me this is a good way of thinking about it but if the excuse me if the leave of absence is for the employees own medical condition pregnancy cancer broken leg whatever it is then you you can require the use of sick if it's for taking care of somebody else you cannot so if it's related to their own medical condition you can require sick but not vacation if it's related to something else you can re require vacation but not sick that is that good Curtis yeah my understanding I'm sorry that's that's my understanding yes yeah so FMLA is unpaid unless the employee has acred benefits that are available and um like Linda said you can you can force the use of paid benefits in some circumstances and some circumstances you can't yeah and I would sort of tie this into the next thing on the slide which is the effect on benefits right so under FMLA you're required to keep group health benefit in place as though the employee was still working right so that going back to what I said before they can you can still require them to pay their portion well how do they do that when maybe they're collecting disability which is a portion of their pay right they're out on a leave they don't have the ability to earn more income and now you're telling them hey write me a check for what normally would come out of your paycheck well one option for them might be hey if you let me sort of you know take sick or vacation time we could deduct it out of that it helps the employer because now you know when they come back they're not going to say now I'd like to take two weeks of vacation right so it's sort of a win-win it helps the employee cover those costs without dipping into the disability when they're already receiving less pay than they normally would be yeah it's a great Point anything else on FMLA before we move on Curtis just that so the two things that I want to emphasize is that FMLA is a is a strict benefit if the employee is eligible for it the employee gets it as opposed to what just how it is well so as opposed to um it's it's not really a question of granting it or discussing discussing whether it's an undo hardship or whether the the company can um afford or be able to let someone take FMLA leave if someone's eligible for FMLA they get it yep you can't really have a conversation about whether there they can get it or not and two just like we said before give the eligibility notice in writing designate the leave in writing definitely all right let's move on to California family Rights Act it's sort of the sister law to FMLA however it's different from FMLA and it's changed a couple times over the years so initially it was pretty similar except that it carved out pregnancy because California already had a separate pregnancy disabil leave Law a few years ago it also changed the requirement so it used to be like FMLA in that you had to have 50 or more employees in a 75 mile radius now that's no longer a requirement California says employees are covered if they satisfy the two standards of working 1250 hours right and having been with the company for a year but now it's every employer is covered if you have five or more employees there's no radius there's no you know anything else if you have five employees you're a covered employer under CF yeah California family Rights Act cfra is modeled after FMLA so cfra came into existence after F FMLA but California wanted to basically expand the leave rights for California employees so like Linda said instead of a 50 employee threshold it's five instead of a 75 mile radius it's if there's five yeah but the the eligibility standards are are similar and that the employee still has to have worked 12 months prior to the leave of absence worked 1250 hours within that 12 months uh prior to the leave of absence the qualifying events are um are expanded somewhat we we've listed the details here um but for the most part it's a copy and paste of FM so we'll we'll we'll we'll spend a little bit less time on cfra just because we've already talked about a lot of the rules already in FMLA so again there there's there's specific rules for how do we count those five employees and um there's specific rules for how to we count the 1250 hours but just just know that um it's it's very similar to FMLA it's just expanded in California yeah and there are some uh there are differences in terms of coverage you can see in the bottom box you know um how they Define family members and things like that there's also this designated person requirement that showed up last year the year before and then with military care give leave a little bit different um and then pregnancy ex excluded but for the most part they run parallel and one of the things you need to remember is if you're going to designate under FM FMLA most likely unless it's pregnancy you're going to designate it under cfra as well so we'll talk a little bit about that so the length of leave available is the same excluding the military caregiver leave which is not covered under CF it's job protected just like FMLA is employees have to give you notice just like FMLA anything you want to add on this slide Curtis because it's this one's pretty straightforward yeah so we're we're recording the the the webinar like we do all of our webinars and we're going to post them on our our our YouTube Pages um if you were if you're working for a smaller employer let's say you have 20 employees and you heard us start talking about FMLA at 50 and you spaced out for the last 20 minutes um you can go back and rewatch all the all everything we said about FM because it a lot of it does apply to cfra so hopefully um you paid attention because a lot of it's going to be the same you're still gonna have to pay attention to it under cfra yes and as I was just not just noting a second ago if you're designate under FMLA most likely you're also designated as a cfra so you want to make sure that you're checking both of those boxes when you give them the designation notice and you tell them like here you WR and responsibilities and yes you're covered and all of that so again you cannot go back and retroactively designate something unless there's again like a little sliver of Hope if you did not know at the time that it was going to be an FMLA covered event you know maybe the employee just called out sick called out sick called out sick and then all of a sudden you're like no get us a doctor's note um then you might be able to go back but you want to make sure that you get as much information up front as possible you doesn't need it properly and then go on from there all right so Curtis same thing about sick and vacation yeah for the most part there just little bit different rule for um for for pregnancy leave just because uh pregnancy disability leave as we'll talk about here in a bit um does not run concurrent with CF uh but for the for the most part um the rules for paid for continuing benefits and and using paid time off for um CF leave are going to be are going to be the same there are a few um differences here again just because California is a little more expanded uh but for the most part you can think of it as as generally being the same yep just check that extra box okay so let's move on to pregnancy disability leave Law this one comes up a lot obviously in California um and women in California have a greater uh benefit than a lot of employees have in other states we have this happen a lot too where somebody moves out of state during covid and all of a sudden found out there's no pregnancy disability law there's no benefit there's no leave of absence no nothing right so California does provide that higher benefit to pregnant women so um covered employees this is five or more um there's no length of service requirement for pegnancy disability leave I mean I had somebody on my own team start with us last year and then she'd been here like a month and said hey guess what good news I'm pregnant and then you know I gave her leave of absence because that's what's required and she was out for several months toward the end of the year so again that's what the employer is is obligated to do uh so this is specific if it's a pregnancy related disability preventing work and the reason I highlight that is because I hear a lot of people say oh I'm pregnant I get four months off and that's not what the law says you want to explain the difference Curtis yeah you get um you're breaking up a little bit sorry I think this is relating to the next slides or so but yeah so a disability due to pregnancy has to be um so let me take a step back you can only take time off under PDL if you are disabled due to pregnancy it's not a blanket four months off see you in four months you have to actually be certified by your doctor stating that um the employee is disabled due to pregnancy and is unable to work that there may be different reasons before child birth where employees is disabled due to pregnancy there's a lot of medical related medical conditions that that could cause it and then of course child birth there's a a lot going on at childbirth I've got kids myself I've I've seen I've I've seen what my wife has gone through um and then recovering from childbirth uh that's considered a disability and is eligible to take time off from work under pregnancy disability law yeah it could be morning sickness it could be you know doctor says hey you need to have a bed rest it can be a whole bunch of different things postpartum depression there's a whole bunch of different things that go into a pregnancy related disability again we always say go back to what the doctor says right if the doctor says this person can't work for these reasons then that's what you go by I'm not suggesting you just take take the woman's word for it right like we wouldn't take any employees word for it just like hey I need to leave of absence and we've seen that happen where an employee will text or email or something and say hey I need the next X number of months off we're not suggesting that but it is more than you know the four weeks before and six weeks after which is a typical uh disability period um so the length of leave can be up to four months or 1773 weeks it can be taken on an inter intermittent basis um they do have the same right to be put into the original position that they left so it's similar to FMLA and cfra and again notice should be required I mean most people would know uh if they're pregnant hopefully hopefully it's not a surprise to anybody there and then Curtis you want to talk about you know the steps here and what they need to do yeah so if employee let you know that the the employees expecting then and is going to request time off under pregnancy disability leave uh the employee is is required to respond no later than 10 days after receip of the request and when the time the employee does take time off for pregnancy disability leave uh PDL and FMLA do run concurrently and again because FMLA is kicked in you only have five days five business days under FMLA to respond uh and once the leave is approved pregnancy disability leave is retroactive to the first uh date of leave where before we said Fay and CF are not but pregnancy disability can be retroactive to the first day of leave yeah so just keep in mind on this one cfra and we're going to show you a chart in a second but C cfra and PDL are mutually exclusive right because California when they put California family Rights Act in is they said well we already have pregnancy covered we don't need to include it in here so it's carved out but it is not carved out under FMLA so if you're an employer over 50 then you want to designate the under PDL and FMLA right because otherwise the FMLA benefits are still there so you could potentially you know extend that leave of absence longer so you want to make sure you designate under both of them um Can the employer require use of sick and vacation yes to sick no to vacation no to PTO because it's combined so you got to play by the higher standard there you can offer vacation right so again if they need to looking at the bottom part of the slide pay for uh the the amount of money that normally would come out of their paycheck for their benefit contribution they may want to sort of sell back vacation if that makes sense you just want to make sure that you're coordinating those those that pay for uh disability benefit purposes and you make sure that you report it correctly and things like that but the effect on benefits same thing got to leave them in place so let's take a look at this slide that I mentioned a minute ago because I hopefully this will make some sense to people so let's say somebody comes to you you know and they say hey I need to go out on a pregnancy disabil AB ility leave and let's just assume for the sake of argument they're going to exhaust it if you look at the middle line from PDL they're going to be out from you know February till sometime in May because they're going to take 17 and a third weeks you're going to designate FMLA to run concurrently with that so that's going to get exhausted prior to the PDL but then once the baby's born they do have baby bonding rights which would be covered under CF so this is a pretty typical scenario that we run into all the time where a woman gives birth she's out for whatever period of time she's disabled under pregnancy disability leave Law and then when she once she has the baby there'll be a period of time where the doctor says she's disabled as she recovers from childbirth once she's released to return to work she can immediately turn around and say now I want to take 12 weeks for baby bonding Curtis want to run anything on that she 19 sorry 29 and the third week's off 29 and the third weeks off potentially right that's over six months it is and we've seen it a lot right and the other thing is that baby bonding does not have to be taken um you know immediately after they have one year from the date of birth to be able to take those 12 weeks and can be taken in different increments there's different rules around that which is in the weeds for this webinar um but just know that that's the possibility right that this person's out 29 and a weeks if they're disabled during that fulltime all right Curtis let's move on to American with Disabilities Act you want to take that one yes so American stabilities act federal law this law applies to um any employer with 15 or more employees and again there's a whole set of rules of how we count employees and how we um determined if it's 15 we hit the 15 employee threshold or not and it's applies to all employees with qualifying disabilities why why does this matter this will often come up if you have uh If an employer does not have 50 employees right is not covered by FMLA if an employee makes a request for a leave of absence and that employer is not covered by FMLA the employer is still going to want to think about compliance with Americans at Disabilities Act because a leave of absence can be an accommodation for medical condition so if you're not subject to FMLA but you have 15 or more employees you need to think about Americans with Disabilities Act and the the qualifying events for uh leave under Ada is a disabled employee requiring time off as a form of a reasonable accommodation yeah and the definition of disability is sort of important in this because when we look at FHA um in a minute the definition disability is different right so the dis the disability here means a physical or mental impairment that substantially limits a major life activity right it goes on with some more words after that but it's substantially limits a major life activity and then you'll see in a minute when we talk about FHA it's even higher um or I should say a lower standard I'll say it that way it's a lower standard under F there's quite a bit of case law too it's been litigated a lot what the definition of disability is under under Ada so it's a it's a fairly welldeveloped area of law so on this one the length I leave available as Curtis said that it's not that the Ada actually grants the right to a leave of absence but they say that you must reasonably accommodate this person with this disability so reasonable accommodation may be to Grant time off so this is really frustrating to a lot of employers because somebody on a leave of absence may exhaust their FMLA May exhaust CF or may exhaust their pregnancy disability leave Law and then they're like okay I want to fire this person and we're like not so fast because you have a right or you have a responsibility to accommodate that person by giving them additional time off and again there is in this law an undue hardship exception and I'm gonna say Curtis is gonna say but yeah of course um yeah like like Linda mentioned there is no limit uh under Ada um the the question that you have to answer is if the person is requesting an accommodation a leave of absence as an accommodation is that leave of absence reasonable can you sustain it or is it an undue hardship to the company so if somebody is not eligible for for FMLA and we'll pretend that CF doesn't exist if an employee comes at you says I need a leave of absence because I broke my ankle then you need to go through the the good faith interactive process to determine if that requested accommodation of a leave of absence is reasonable you can sustain it and there's a lot of litigation there's a lot of case law on what that means or is that requested leave of absence and undue hardship if you're you are subject to FMLA you are subject to CFA and you've allowed you've accommodated that person for 12 weeks of leave under FMLA or cfra and that those 12 weeks expire and you want to then claim a undue hardship you're probably not going to be able to claim an undue hardship if you have accommodated that employee for the previous 12 weeks judges typically think that if you have been able to accommodate an employee for 12 weeks weeks that you can continue to accommodate an employee if you've been able to sustain that leave of absence for 12 weeks you're probably going to have to continue that leave of absence um even though the leave of absence was you were forced to Grant the leave of absence under CF or FMLA um if you've been able to sustain it for 12 weeks then there's likely no undue hardship it's likely reasonable that you have to continue to sustain that leave of absence yeah Linda so what if what if an employee comes to me comes up to you or comes up to the employer and says I need an un undefined leave of absence indefinite I don't know when I'm going to come back yeah I would say we need to more no more right I would I would actually ask them to go get a doctor's certification and hopefully the doctor is going to uh put some limits on that but as we know that can get extended over and over and over and over and over again so yeah the the the courts have said there's no obligation to provide an indefinite leave of absence but like you said if if somebody has a note that says I'm off for a month month goes by they get another note I'm off for a month month goes by that practice can continue to happen and happen and happen so even though there's no obligation to provide and indefinite leave of absence you might end up going that direction because an employee can get a new note every month or every two months or every or every period ever so often exactly so let's move on I'm watching the time here uh FHA so we said a minute ago FHA is really similar to the Ada except that in this case it's five or more employees uh the eligibility the qualifying events all of that is the same now there is one thing that's different which is the definition of disability so I said a second ago that Ada says something that substantially limits a major life activity in this case it says limits right it also includes perceived disabilities which is a little bit different as well so anytime an employee comes up they have again they have some medical condition that's going to require time off you need to take a look to make sure um you know which which leave laws may get triggered and which other laws may get triggered in this case FHA also is not not a leave Law per se um but a reasonable accommodation may be time off uh so we want to make sure that that you are taking uh you know paying attention to the details on these issues so Curtis let's take a look at interplay between Ada and FMLA um this sort of addresses that serious health condition and the difference in the definitions yeah just like how FMLA came first and cfra came later from California to expand the the medical leave rights that an employee can have um Ada came first and then fiha came later to do the exact same thing to expand the accommodation rights that employees have in California so FHA like like Linda said f and Ada are very similar almost the same the the differen is that FHA is going to be more expansive is going to cover more employers and is going to cover more disabilities and more perceived disabilities so like like Linda said the the California rule does not have the substantial qualifier that ADA has any kind of limitation on a major life activity uh will be considered a disability and again there's been a ton of litigation on what this definition means H so if you ever want to know if if an employees received or or purported disability uh qualifies under under FHA then talk to your attorney talk to me talk to Linda and we we we can we can help you out on that we can guide you on that exactly okay so let's um wrap up this with workers comp uh leave so this applies to all employers and please please please I hope everybody out there has workers comp insurance every once in a while I run across employer that says oh we never got it I'm like no so you want to make sure that you have workers comp insurance in place anytime an employee gets injured at work this is going to come into play if you know they're going to have coverage in terms of medical care perhaps time off right so let's say something serious happens you know you have a roofer they fall off the roof they you know break their back and they're going to be out for six months or whatever workers comp's going to come into play but keep in mind that it's also going to run concurrently with FMLA cfra you know potentially right all of these different laws we've been talking about so length of leave available is not specified on this one they're entitled to have as much time off as they need while they're disabled it's job protected subject to you know there's a business realities exception but again just be really careful because if you're running it concurrent with FMLA or CFA you have to play by the higher standard there obviously you're going to have some notice of this and then can the employer require use it's the same as FMLA and cfra no on vacation yes on sick and then the effect on benefits is the same if you're running it under FMLA and cfra concurrently you're going to want to leave the benefits in place for for at least up to 12 weeks um protected under FMLA and cfra all right so responding to workers comp leave requests you want to make sure that you're giving them the dwc-1 form which is that notice where they have to fill it out and say I was injured and hear all the details and everything like that Curtis you want to just talk briefly on labor code section 132a yeah 132a is uh law California that says you cannot uh discriminate or retaliate retaliate against an employee who's made a workers's comp claim or retaliate against an employee who has informed you of a of a work-related injury uh we we see these claims be made some sometimes and sometimes we defend them and sometimes not but the idea is that when an employee makes a workers's comp claim or if employee informs you of a workers's comp injury uh they are protected and you cannot retaliate against that person through any kind of adverse imployment action and you cannot discriminate against that person because they made a claim or reported a workplace injury and with the the dwc form you have one day to Prov provide that provide a copy of that form to the to the employee we saw FMLA was had had number of days was five days and we saw um other laws that were were 10 days when it comes to workers comp you have one day to provide the employee with that form and that form has to be partially filled out with your company's information and with the information of your uh your workers comp insurance carrier so that the employee can can make a claim because workers comp is covered by insurance if it ever happens I tell employers try not to stress out about it just hand it over to your your workers comp insurance L your workers comp insurance stress out about it that's what they're there for they you're you're they're buying your worry you're paying them to worry about it for you so always rely on your workers comp insurance so as you can see like Linda said before that when an employee goes on a workers comp leave it's potential that that workers comp Lea can run concurrent with other forms of uh leaves of absence and this is we'll get to why this is important well now and then and in the next slide but the idea is that yeah FMLA and cfra and Ada and FHA these are all employee injuries that prevent the employee from working these are all leaves of absence and so all of these different laws can run concurrent so you have to keep these in mind when you have an employee that goes out on a workers's comp leave absolutely now we did a whole webinar before on the interactive process so I'd encourage you to go out to one of our YouTube channels um and look this up because we don't have time to go through this if you ever have somebody that comes to you or you have knowledge that somebody may leave that may require a leave then you have an obligation to enter into the interactive process with them to discover you know what could be a reasonable accommodation so it might be time off it might be something else right like we had a situation A couple of years ago with an employee who was pregnant she had to eat certain types of food so she needed to move her uh meal period and her breaks around so she could go back to her apartment and cook the food that she could eat while she was pregnant so that was a reasonable accommodation and we were able to work that out and that came because we went through this interactive process with her all right Curtis we're going to run out of time here so we're going to go really quickly through this right so I just hired an employee and on day one she announced she's pregnant can you fire her right no don't do it day one she has rights yeah she has rights on day one remember on PDL there was no minimum service requirement um my company isn't subject to FMLA because I'm a small employer with 15 people one employee is a non-work rated medical condition that requires surgery and her doctor says she'll need 10 weeks time off do I need to give her the leave of absence maybe what depends it said maybe okay because you need to think about ADA FHA and cfra you have to apply those laws just because F doesn't apply you're not out of the woods you still need to consider Ada FHA and cfra exactly so similarly my employee with diabetes requested two months off then extended for another month now he's asking for another two months off do I have to keep this job open if I have 50 or more employees what if I have under 50 employees can I fire him no no to which the last question you cannot you cannot fire you cannot fire an employee for having a disability or medical condition even even if somebody's not eligible for a Rel of absence you still cannot discriminate against the person because of their medical condition that's a protected class absolutely and as frustrating as that is to have it keep getting extended extended extended that is your reality that's what happens all the time now um so my California company has 10 employees one of my long-term employees used 12 weeks of cfra in the first three months of the year now she wants to take another CF leave on October for our own medical condition do I have to let her do that or can I wait until it's been 12 months question so before we talked about the the possibilities for setting your your 12 month year and if you have a rolling 12 month year like we've suggested then no the employees exhausted the employees 12 weeks of leave for that 12month period and um you can you can deny the leave but the second one is for her own medical conditions so again you could deny it maybe under cfra but you may have to reasonably accommodate that request under under FHA right this the 10 employees yeah you have to take a look at all of these different details um so my employe is covered by all of these different laws he's been off work for five months and he keeps getting new notes from his doctor stating he cannot work at what point can we fire him this is probably the situation that has come up the most for us this year where somebody continues to get extended extended extended yeah and at this point the person should just be on Ada or F and if that's the case you can require the employee to pay for all of their health insurance premiums so what I tell employers is if you're not if it's not costing you anything to keep this employee on your record then keep granting the leave it's not hurting you the only thing that's going to happen by firing this employee the only there's really no benefit to you it's only going to be a negative that you're only going to get sued right except you have to hold the position open which is the challenging part yeah which I would you know what I typically tell employers is you can you can uh spread the duties around you can hire a temp you can come up with other um other Solutions but just know that as you're keeping that position open if that person comes work you would have to reinstate that person absolutely I had another thought but I can't I don't remember what it was you'll think of it in a second okay so we're going to move on to other questions and while you're typing those into the Q&A section I'm going to let you know about a program we have coming up um called maximize your impact everything dis agile EQ uh Workshop so this is going to be I have another slide with the details but this is really important to today's environment making sure that you have emotional intelligence right this is something that can really help you personally but also help your Workforce just have a healthier more um trying to think the right word just a better environment for your employees to work in so we're doing this live in person on May 10th it is approved for five hour hours of hrci credit it does come with lunch and a personalized agile EQ assessment that you'll take online takes like 15 minutes I put the link here for you to register the cost is $249 but if you register by April 30th just put in the code early and you'll get a 20% discount so I hope that some of you will consider joining us it's a great program we've taught it on many occasions uh we can send you all sorts of uh recommendations from our clients on this one because they love it so much so hopefully you can join us for that and with that Denise I know we only have a couple minutes left but I'm turn it back over to you to see if we have any questions yeah great thank you so much uh question when you were talking about FMLA we had someone type in what about uh the questions on PTO so what about if we have a combo PTO policy can we require the use of PTO for their own medical condition you cannot because you have to play by the higher standard Curtis that's my understanding correct yeah that is correct and that I believe there was a reference to that on one of the slides earlier yeah um and it also you know we also have to look at which law this person is taken a leave of absence is FMLA c4a PDL VHA Ada uh but like you said if you have a combined policy of paay time off that covers both vacation and sick you have to apply with all paid sick leave laws and all vacation laws so generally because it's a combined policy and you're you're having to require or you're having to comply with additional laws uh you you cannot require it yeah and at this point we always recommend to our clients that you separate those two out for a lot of other reasons as well um so whoever you are that you put that down consider just separating those two benefits out it'll help you in a lot of different areas not just with response to the leave of absence there's a second question on the the very same topic so I'm glad we answered that yeah um that's actually a good uh suggestion because so many companies have gone to PTO um if someone is not eligible for CF at the time of birth can they utilize it once they are eligible given if it's within one year of birth I think you actually may have discussed that already can you ask her one more time Denise I'm sorry uh if someone someone is not eligible for CF when they give birth can they utilize it once they become eligible if it's within the year of the birth yes now I understand the question yes you can so you always have to look at that and you want to make sure again that if they go out on a pregnancy disability leave Law then that time's not getting counted toward their hours worked toward cfra eligibility but at some point in time after they return if it's in that year and they've worked their 1250 hours or they've completed their one year of service what ever you know both of those uh but whatever was preventing them from being eligible for then yes they are allowed then to take the cfra for the baby bonding just has to be done in that first year okay any of the other questions that came in were too specific so um if you have a specific question that you require additional uh information on uh our team is ready to answer your questions because they will have to ask you other questions so please reach out to Linda and Curtis or to your legal council to discuss it in detail yeah let me just tell everybody part two of the leave of absence is going to be on May 9th at 11 a.m. so the registration link is right there you can always email one of us and we'll get it I'll put it in the follow-up uh email that you receive for attending today as well so thank you very much for attending Curtis Denise thank you guys as well we'll post this recording out on the YouTube channels in the next couple of days if you need hrci credit then look for the link um in the handout or the link in the follow-up email uh and take that survey and then you'll be able to download your certificate thanks everybody thank you take care