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Employers are frustrated with the number of employees getting sick, taking leave, and filing workers comp claims. They want to know what their responsibilities are but at the same time they want to know whether they can discipline and/or replace sick employees. Unfortunately, companies often make mistakes in deciding whether and when to offer leave or some other accommodation, how family leave laws work, and whether to discipline or terminate an employee for absences caused by illness. This is not surprising, as the interaction between disability, pregnancy, workers’ comp and family leave laws is complex. This article overviews the most common mistakes employers make when addressing illness in the workplace.
Mistake #1: Failing to Interact with the Employee (or Doctor) Once on Notice of a Disability
As an initial matter, employers are obligated to affirmatively “interact” with employees, preferably in writing, once they are on notice of a disability. The disability laws require this interaction process as part of company-required compliance. Keep in mind that, in California , privacy rights are very strong and employers are not entitled to know what the condition is, just how it affects the employee’s ability to do the job. The written correspondence to employees and their doctor’s must comply with privacy and related legal requirements.
Mistake #2: Failing to Accommodate an Employee’s Medical Condition
Most employers have heard the word “accommodation” and understand that steps must be taken to ensure that disabled employees who can perform the work are given reasonable tools to enable them to do so. However, employers often fail to understand the rigors of the requirement. For example, many courts have found that an employee who has a medical condition may be accommodated by a leave of absence – and, in California , a leave up to a year has been deemed “reasonable.” While there are options to replace an employee on such a leave when business requirements so dictate, terminating employees with medical conditions (rather than offering them a leave or other accommodation) could be deemed a failure to accommodate under relevant employment laws.
Mistake #3: Failing to Place Employees on Family or Medical Leave
Employers who employ 50 or more employees have obligations under the Family and Medical Leave Act and, in California , the state California Family Rights Act (FMLA/CFRA). When an employer is on notice from any source that an employee might be suffering from a “serious health condition” as defined by these laws, the employer should immediately consider its obligations under these laws. As it relates to leaves, employers can usually place ill employees on a provisional FMLA/CFRA leave pending receipt of the doctor’s certification. This includes employees who are off work due to injury from a workers compensation event. Placing the employees on FMLA/CFRA leave, even if it is provisional, gets the “clock ticking” on the employee’s entitlement to 12 weeks of leave under these laws.
Mistake #4: Missing the Boat on the Pregnancy Laws
These are the most complex of the leave laws in California . In general, employers need to look to California ’s pregnancy disability leave laws, separate from the CFRA (pregnancy is not a “serious health condition” under the CFRA but it is under the FMLA). In California , a woman disabled by pregnancy is entitled to up to 4 months of leave. This includes morning sickness and any other illness related to pregnancy, and it includes the actual period of disability after giving birth. Employers need to set up a recording system to start the “clock ticking” like they do for FMLA/CFRA leaves. After the employee uses up her disability leave, then she is often entitled to an additional 12 weeks of “baby-bonding” leave, which is offered under the CFRA. In total, California women are eligible (but don’t necessarily qualify) for up to seven months of protected leave.
Mistake #5: Failing to Stay Apprised of the Changing Laws
Leave laws are in flux. There are usually numerous proposed amendments pending at both the state and federal level. Earlier this year, President Bush signed an amendment to the FMLA that extended greater protections to military family members. Eligible employees may take up to 26 workweeks of leave to care for an injured or ill immediate family member who is a “covered service member.” Eligible employees may also take 12 weeks of FMLA leave for “any qualifying exigency” arising out an immediate family member being called to active duty.
Additional FMLA amendments were announced in November 2008 and became effective on January 16, 2009. The regulations describing these amendments cover over 750 pages and generally create multiple technical changes. Among many of the changes are the following: employers must publish an FMLA notice even if they do not have eligible employees; employers must issue a WH-381 form regarding eligibility requirements and inform employees of their eligibility within 5 business days; employers must designate the leave under the FMLA within 5 business days and must provide a “rights and responsibilities” form which clarifies expectations and consequences; and settlement of preexisting or past FMLA claims is now permitted and release agreements can (and should) be modified to include a waiver of FMLA claims.
Note also that the ADA was also amended effective January 1, 2009. The new law (called ADA Amendments Act of 2008) broadens the federal disability laws. For example, the Supreme Court has traditionally offered a narrow definition of “disability;” the new law significantly expands the definition and even directs the EEOC to revise its regulations to broaden the definition. The new law also provides that corrective or ameliorative items, such as medicine, hearing aids and the like, should not be considered when assessing whether someone is disabled. California ’s law already encompasses many of the amendments and so while California employers will not be significantly impacted, any company with offices elsewhere will need to take note of these changes.
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