What You May Not Know and What You Need to Know About Pregnancy Disability and Other Disability Leaves |
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In
the last Newsletters, we outlined California leave entitlements, best
practices for responding to requests for leave, and outlined some key
requirements for the Family and Medical Leave Act and California Family
Rights Act. To revisit those newsletters, click here.
In this Newsletter you will find:
If you
would like to review the last months' newsletters with tips and tools
for overall leaves of absence strategy and Family and Medical Leave, click here. In
our next issue, we will take a break from Setting Expectations, and
will provide ideas you can implement right away for protecting your
company and increasing productivity through your Sustainable Performance
Management systems.
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How
well do you know the rules on Pregnancy Disability Leave? Here is
your chance to test your knowledge! You will find a link to the
answers at the end of this Section. If you just can't wait to know and
want to head straight to the answer, click here.
1. Are you Covered by Pregnancy Disability Laws? True or False: If
you have five or more employees, you are covered by the Pregnancy
Disability laws in California, and are required to give your employee
pregnancy disability leave if requested.
2. How Much Leave is Available to A Pregnant Employee? True or False: Your Company must grant an employee up to four months' off to be with her baby if she requests the time off.
3. What Notice is Required to and From the Employee? My
employee alerts me in January that she is giving birth in July, and
that she will want four months off. I will just stay quiet, in the
hopes that she somehow will leave the Company before July. True or False: this strategy (and the employee's notice) is acceptable.
4. What Other Accommodation May Be Required? My
employee's physician has stated that it is medically necessary that she
transfer to a less strenuous position, so I had better create a new
position for her. True or False?
5. Is the Employee Entitled to Paid Leave? Pregnancy
disability leaves of absence are unpaid, although the employee may be
eligible for California-provided state disability insurance (SDI)
benefits.
6. Is the Employee Entitled to an Intermittent Leave, if That is Requested?
True or false, my employee is entitled to take her pregnancy disability
leave in half day (or other less-than-full-day) increments.
7. What Are the Employee's Reinstatement Rights? While
the employee is out on pregnancy disability leave, the Company hires a
fabulous temporary worker who is 5 times more efficient than the
pregnant employee ever was. True or False: The
Company may hire the temporary worker as a regular employee, and let the
pregnant employee go when she is released to return to work or while
she is out on leave.
8. What Benefits Must Be Continued, if Any? True or False: the
Company may require that the employee reimburse the Company for all
medical insurance costs while she is out on leave.
9. What is the Effect on Accrual and Use of Vacation and Sick Leave. True or False: A
company that wants to reduce its costs for leaves of absence may (a)
tell employees that they do not accrue sick leave or vacation while they
are on leave; and (b) require that employees apply accrued sick leave
and vacation to their leaves of absence.
10. What Can You Require of the Employee at the End of the Leave?
The employee is eager to return to work, and reports to work without a
doctor's release to return to work. You may require that the
employee provide a doctor's release before you allow the employee to
return to work. True or False?
Click here to learn whether the statements are true or false, and to learn more about Pregnancy Disability Leave.
Remember: You
need to consider more than pregnancy disability laws when you are
considering a request for time off. If the leave is a covered Pregnancy
Disability Leave, is it also protected, for example, under the FMLA or
CFRA? If the employee has exhausted her Pregnancy Disability Leave
entitlement, can the Company provide additional time off as a
reasonable accommodation of a certified disability? Read the next
Section for more information.
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If
an employee has taken all the time allotted by law or your policies
for medical or pregnancy disability leave, you still need to consider
whether the employee is disabled and entitled to additional time off as
a "reasonable accommodation." This is a critical final step to
making a leave determination.
1. Are
You Covered by the federal Americans With Disabilities Act or the
California Equivalent (the Fair Employment and Housing Act)? The ADA applies to employers with 15 or more employees, and FEHA covers employers with five (5) or more employees.
2. What Are you Expected to Provide Under the ADA and FEHA? Very
generally, and we will define these terms more below, an employer must
make reasonable accommodation for the known physical or mental
disability of an employee. If
the requested accommodation is not "reasonable," in other words is an
undue hardship, then the employer must alert the employee of this and
engage in an "interactive dialogue" as to whether there is a reasonable
accommodation available that would allow the employee to perform the
essential functions of the job. A leave of absence may be such an
accommodation, if it is reasonable.
3. When is an Employee "Disabled"? A
physical or mental disability is defined as a condition that limits (in
California this means the employee has difficulty performing) a major
life activity (physical, mental and social activities and working), without
regard to whether the condition can be mitigated by medication,
assistive devices or accommodation. If an employee suggests that
they are physically or mentally unable to work, you may request that
their physician certify that this is indeed the case. Always use
an approved physician certification form to avoid creating unwanted
liability.
4. What is a "Reasonable Accommodation" in the Leave of Absence Context? The
law contemplates a variety of possible accommodations for disabled
employees that might allow them to perform the essential functions of
their job (for example, job restructuring, equipment, devices)
including, potentially, leaves of absence. In order for a leave of
absence to be a "reasonable accommodation," the leave must not create
"undue hardship" for the Company. A variety of factors will be
considered, including the cost associated with the leave, the effect on
expenses and resources or the impact of the accommodation on the
operations of the Company, the overall financial resources of the
Company (including number of employees and type of facility) and the
type of operations, the role of the individual requesting the leave,
etc. The threshold is a high one. For example, if the
Company easily could retain a temporary worker in that role at minimal
cost, it will be difficult for the Company to claim that doing so is a
hardship. If the employee has a specialized skill that is
difficult to cover with a temporary worker, then the Company will be in a
better position to suggest that a leave of absence is an undue
hardship.
5. Must the Employee Request Time Off as an Accommodation?
Not necessarily. The obligation to explore whether a leave of absence
is appropriate may be triggered if the employer knows or should know
that the employee needs time off due to a disability, or if the employer
perceives (accurately or inaccurately) that the employee is unable to
perform the essential functions of the job due to a
disability.
6. Will Insurance Continue During the Leave? That
will depend upon the Company's policies. A company is not
required to continue insurance during an ADA or FEHA leave of
absence. Make sure your policies are clear.
7. Is a Leave Provided as an Accommodation Paid or Unpaid? These are unpaid leaves, unless your policies provide otherwise. The employee may be eligible for SDI.
8. What are the Employee's Rights to Reinstatement? This
also depends upon the Company's policies and practices. Be clear
in your handbook and correspondence to the employee. If you cannot
guarantee that they will return to their prior or a similar position,
let the employee know.
9. May You Require and Have You Required That The Employee Provide a Release to Return to Work?
Employees who take leave of absence as an accommodation of a certified
disability should produce a doctor's note stating that they are able to
return to work without the risk of harm to themselves or others.
They should not be allowed to return until they produce such a
release.
10. Have You Marked Your Calendar With When the Leave Will End? Be
clear on the length you must grant by law or policy and make sure you
are following up with the employee near the return date. You can
and should have a policy that states that employees who fail to return
on their scheduled return date are considered to have voluntarily
resigned. Be sure to follow your own policy on consequences!
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Abby Accountant and the Accommodation
Abby is
an Accounting Specialist with Take No Time Off, a 49 employee company
in Alpine, California. Abby is responsible for inputting sales
data into the computer all day long, and lately she is behind in her
tasks. Her co-workers have heard her complaining of pain in her
shoulder. She is the anchor on the Company's wholly-optional rowing
team.
The Company wants to discipline Abby for falling behind on her inputting duties.
Can they do so without significant exposure to liability?
What if Abby blames her performance on her shoulder problems?
To see our thoughts and recommendations, click here.
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We
want your company to avoid the risky and costly missteps we see some
employers make in granting pregnancy disability leaves and in applying
the rules on accommodation.
We are happy to help:
- Are your policies in compliance with the law and best practices? We
are happy to work with you to review, draft and implement policies and
practices that establish clear and shared expectations on pregnancy and
other medical leaves of absence
- Do you have a system for responding to requests for leave? We
can provide counsel, both through anticipatory processes and in the
moment, on how to respond to a request for pregnancy disability leave or
a request for accommodation.
- Have you educated your managers? How
your managers respond to a request for a leave of absence can be the
difference between an efficient leave process and the risk of
liability. We can help you train your managers to recognize and
respond appropriately to requests for time off.
Keep
an eye out for next month's newsletter, where we will begin to
outline how effectively managing performance can be the key to
protecting your workplace from liability and increasing productivity and
loyalty. Yes, we are talking about Sustainable Performance
Management Systems.
If you would like to review our prior newsletters with tips and tools for Creating the Sustainable Workplace, click here.
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Schor Vogelzang & Chung LLP
Partnering to create your great workplace!
2170 Fourth Avenue, San Diego, CA 92101
P: 619.906.2400 F: 619.906.2401
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