Category: Leaves of Absence

The EEOC Is Messing with Employee Absences

This should be a scary sentence for any employer: “Requiring employees to reveal the specific nature of their medical illness in order to have necessary sick leave count as an excused absence is an unlawful disability-related inquiry under the ADA and not justified by business necessity.” That’s the EEOC’s position according to a claim they filed, thereby encouraging even more unwarranted absences.

What this means: First of all, just one more reason not to have sick pay policies. Use PTO instead and forgo the sickness conversation. Secondly, make sure to limit your info to an understanding of whether or not they had a medical limitation that prevented the employee from coming to work. Getting into the specifics goes too far; at least according to the EEOC….as it may unnecessarily require an employee to reveal a disability. Only time will tell if they are right or pushing it too far.

eeocRemember, short-term sickness is generally not a disability. If in fact they have a disability make sure to go through the accommodation process. At that point you can get into the specific maladies…but only if related to the accommodation dialogue. Currently, disability discrimination regulations do not address whether an employer may request or require employees to provide general medical diagnoses to substantiate the use of sick leave. The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act states that a covered entity may request doctors’ notes or other explanations for leave, as long as it requires all employees, with and without disabilities, to do so (last modified Mar. 24, 2005). The guidance does not indicate whether a diagnosis can be required as part of such a doctor’s note or other explanation. Note the EEOC recently obtained a $2 million settlement in a class case in which the Commission argued that a company violated the ADA by requiring a diagnosis as part of its sick leave verification requirement: Press Release, Dillard’s to Pay $2 Million to Settle Class Action Disability Discrimination Lawsuit by EEOC (Dec. 18, 2012).

Last, you can have reasonable return-to-work testing done if there is a reason to believe they may be returning to work with a limitation and you do so with other similarly situated employees.

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California Passes SB 770 Expanding the Ability of Employees to Take PFL

SB 770 broadens the definition of family within the Paid Family Leave (PFL) program to allow workers to receive the partial wage replacement benefits while taking care of seriously ill siblings, grandparents, grandchildren, and parents-in-law. The law takes effect July 1, 2014. To learn more about PFL, click here.

FMLA Time Tracking Struggles

I recently answered a common question about FMLA and flex time. Here’s my response:

FMLATimeTrackingQ: I’ve run into more FMLA tracking problems in the last month than I ever thought that I would have. I’ve solved most of the problems so far, but they just keep popping up! My current question is this:

Our two-week pay period ends with a “flex” Friday. Supervisors determine whether employees are required to work or not based on the workload of the department or even the individual. If an employee is out on continual FMLA leave, do I count these flex Fridays as FMLA time?

A: The place to begin is with the CFRs. That’s where they get to the details. Here’s the link to that. The answer to your question is spelled out below:

825.205   Increments of FMLA leave for intermittent or reduced schedule leave (b) Calculation of leave.

(1) When an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the employee’s leave entitlement. The actual workweek is the basis of leave entitlement. Therefore, if an employee who would otherwise work 40 hours a week takes off 8 hours, the employee would use 1/5 of a week of FMLA leave. Similarly, if a full-time employee who would otherwise work 8-hour days works 4-hour days under a reduced leave schedule, the employee would use 1/2 week of FMLA leave. Where an employee works a part-time schedule or variable hours, the amount of FMLA leave that an employee uses is determined on a pro rata or proportional basis. For example, if an employee who would otherwise work 30 hours per week, but works only 20 hours a week under a reduced leave schedule, the employee’s ten hours of leave would constitute one-third (1/3) of a week of FMLA leave for each week the employee works the reduced leave schedule. An employer may convert these fractions to their hourly equivalent so long as the conversion equitably reflects the employee’s total normally scheduled hours.

(2) If an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than FMLA, and prior to the notice of need for FMLA leave), the hours worked under the new schedule are to be used for making this calculation.

(3) If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement.

Employee’s FMLA Interference Claim Doomed by Excessive Absenteeism

In the case of Gates v. United States Postal Service, the U.S. Court of Appeals for the Sixth Circuit held that an employee’s FMLA interference claim failed where the evidence showed that he would have been terminated for his excessive absenteeism even if he had not taken FMLA leave.

For the facts of the case, the court’s ruling, and practical impact, click here.

BLS Releases Leave Survey Findings

The BLS has released its findings on leave use by American workers. Here are just some of the findings:

  • In 2011, 90 percent of wage and salary workers had access to paid or unpaid leave at their main jobs. Twenty-one percent of wage and salary workers took paid or unpaid leave during an average week.
  • Workers who took leave during an average week took an average of 15.6 hours of leave.
  • Fifty-six percent of wage and salary workers were able to adjust their work schedules or location instead of taking leave or because they did not have access to leave in 2011. Seven percent of workers made such an adjustment in an average week.
  • Among wage and salary workers age 25 and over, 72 percent of workers with a bachelor’s degree or higher had access to paid leave, compared with 35 percent of workers with less than a high school diploma.
  • Twenty-one percent of wage and salary workers took paid or unpaid leave during an average week. Workers who took leave during an average week took an average of 15.6 hours of leave.
  • Women were slightly more likely than men to take leave from their jobs during an average week–23 percent compared with 20 percent.
  • In an average week, 6 percent of wage and salary workers reported their main reason for taking leave was a vacation, 5 percent took leave because they were ill or needed medical care, and 4 percent took leave mainly to
    run errands or for personal reasons.
  • Of those wage and salary workers who took leave from their main jobs during an average week, 57 percent used only paid leave and 40 percent used only unpaid leave. Three percent of these workers used a combination of paid and unpaid leave.
  • Fifty-six percent of wage and salary workers were able to adjust their work schedules or location of their main jobs instead of taking time off from work in 2011. This includes wage and salary workers who adjusted their work schedules or location instead of taking leave as well as those who did so because they did not have access to leave but needed time off from work.
  • Among wage and salary workers age 25 and over, 61 percent of those with a bachelor’s degree or higher were able to adjust their work schedules or location instead of taking time off from work, compared with only 38 percent of workers with less than a high school diploma.
  • In an average week in 2011, 7 percent of wage and salary workers adjusted their work schedules or location of their main jobs instead of taking time off from work.
  • Parents of a household child under the age of 13 were more likely to adjust their work schedules or location instead of taking time off from work in an average week than workers who were not a parent of a household child under 18–10 percent compared with 6 percent.

Partial Day Absences in California

In helping out a client, I came across a great opinion letter which lays out the law on partial day absences in CA really well http://www.dir.ca.gov/dlse/opinions/2009-11-23.doc.

Can You Hear Me Now?

From the DFEH FAIR TIMES: This release applies to all employers as an example of just how expensive employment practice claims can get. Remember, settlements by agencies like the DFEH, EEOC, etc. are usually lower than those in private litigation.

DFEH REACHES HISTORIC MULTI-MILLION DOLLAR CLASS SETTLEMENT WITH VERIZON – On November 23, 2010, Los Angeles Superior Court Judge Anthony J. Mohr preliminarily approved a $6,011,190 settlement in Dept. Fair Empl. & Hous. v. Verizon (Seales) (Super. Ct. L.A. County, 2010, No. BC444066) for more than 1,000 current and former California employees to settle a class action lawsuit the DFEH filed challenging the company’s family medical leave practices. The settlement covers Verizon’s voice, data and video operations in California, which employ more than 7,000 people. The class action lawsuit was precipitated by a more than two-year-long investigation into Verizon’s practices under the California Family Rights Act (CFRA), which was conducted by the Department of Fair Employment and Housing’s (DFEH) Special Investigations Unit (SIU). The lawsuit alleges that from 2007 to 2010, Verizon denied or failed to timely approve class members’ requests for leave for their own serious health condition, to care for a family member with a serious health condition, or to bond with a new child. Settlement of the lawsuit—the largest in DFEH history—could result in payment to class members of over six million dollars, an amount equivalent to an entire year of DFEH Enforcement Division settlements. Verizon also agreed to review and revise its leave policies and procedures, continue an existing internal review process that employees can invoke to appeal denials, train all California officers, managers, supervisors and human resources personnel on the procedures and submit regular updates to the DFEH regarding the company’s compliance. In settling the matter, Verizon did not admit to liability. The settlement is subject to final court approval after class claims are filed. In addition to the CFRA class action, the Department also settled two companion group actions with Verizon: 1) a $444,960 Fair Employment and Housing Act (FEHA) pregnancy discrimination group settlement for 42 employees denied time off for pregnancy-related medical reasons; and 2) a $467,466 FEHA disability discrimination group settlement for eight employees denied reasonable accommodation. Together, the DFEH achieved a total of $6,923,616 plus affirmative relief in the three Verizon settlements. For further information, see the press release.

DFEH PREVAILS IN FEHC PRECEDENTIAL DECISIONS – In Dept. Fair Empl. & Hous. v. Avis Rent-a-Car (Reed) (Oct. 19, 2010) No. 10-05-P, FEHC Precedential Decs. 2010 [2010 WL 4901733 (Cal.F.E.H.C.)], the Fair Employment and Housing Commission (FEHC) ruled in favor of the Department, concluding that the employer had unlawfully denied a reasonable accommodation to its salesperson, made unlawful inquiries about her disability, and committed other violations under the FEHA. The decision ordered the employer to pay $89,863.70 ($14,863.70 in lost wages and $50,000 in emotional distress to the employee, and $25,000 in administrative fine to the State), train its management staff, and post notices of the ordered relief. See the decision.

NOTABLE DFEH SETTLEMENTS – The DFEH continues to settle cases both pre- and post-accusation. Below is a sample of this quarter’s settlements.

  • Dept. Fair Empl. & Hous. v. Southgate Garden Homes Association, Inc. (Grey); DFEH Case No. H200708-W-0076; familial status discrimination in housing $115,000 plus affirmative relief.
  • Dept. Fair Empl. & Hous. v. University of California, San Diego Medical Center (Sutton); DFEH Case No. E-200910-D-0094-00-pv; disability discrimination in employment; $40,000 plus affirmative relief.
  • Dept. Fair Empl. & Hous. v. Urban Suburban Inc. et al. (Holdsworth); DFEH Case No. E200809-M-1316-00s/01s/02s; sexual harassment in employment; $22,500 plus affirmative relief.
  • Felicia Checo/Northgate Gonzalez LLC, DFEH Case No. E-200910-S-0597-00fe; California Family Rights Act (CFRA) violation in employment; $40,000 plus affirmative relief.
  • Ewing/Bay Area Legal Aid; DFEH Case No. E200910-M-0805-00-pev; disability discrimination and denial of accommodation in employment; $14,500 plus affirmative relief.

The EEOC, ADA and FMLA

The EEOC has made it clear that automatic termination after FMLA leave is exhausted may run afoul of ADA accommodation requirements. As stated by the EEOC “The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over,” Hendrickson said. “Just as it is a truism that never having to come to work is manifestly not a reasonable accommodation, it is also true that inflexible leave policies which ignore reasonable accommodations making it possible to get employees back on the job cannot survive under federal law.”

To learn more go to http://www.eeoc.gov/eeoc/newsroom/release/9-29-09.cfm.