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14 Aug '17
This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.#6 – Instituting A Maximum Leave Policy
Many employers have “maximum leave” policies, under which employees are automatically terminated after they have been on leave for a certain period of time. These can violate the Americans with Disabilities Act of 1990 (“ADA”) and the Fair Employment and Housing Act (“FEHA”). Simply put: a maximum-leave policy does not satisfy an employer’s obligation to engage in the interactive process and provide a reasonable accommodation to an employee who needs additional leave. (See EEOC, Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016).) This is the case even if the amount of leave time the employer permits is seemingly generous (for example, permitting employees on short-term disability to be out on leave for a year).
The ADA and FEHA require that an employer assess each disability accommodation request on a case-by-case basis. This means that it is unlawful to simply apply an inflexible maximum leave policy to an employee with a disability who needs more leave. Instead, the employer must provide additional leave unless granting the time off would cause an undue hardship or there is another effective accommodation that will allow that employee to work.
What this means to a worker who needs additional disability-related leave time: …
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This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.#5 – Failing To Treat A Request For Leave As Protected
When an employee needs medical leave, he should provide notice sufficient to make the employer aware that he needs the leave, as well as the anticipated timing and duration of the leave. (Cal. Code Regs., tit. 2, § 11091.) However, the employee need not use any legal terms or buzzwords to request medical leave. As the California Family Rights Act (“CFRA”) regulations confirm:
The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The mere mention of “vacation,” other paid time off, or resignation does not render the notice insufficient, provided the underlying reason for the request is CFRA-qualifying, and the employee communicates that reason to the employer. The employer should inquire further of the employee if necessary to determine whether the employee is requesting CFRA leave and to obtain necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information). An employee has an obligation to respond to an employer’s questions designed to determine whether an absence is potentially CFRA-qualifying. Failure to respond to permissible employer inquiries regarding the leave request may result in denial of CFRA protection if the employer is unable to determine whether the leave is CFRA-qualifying.
(Cal. Code Regs., tit. 2, § 11091.)
Oftentimes, even when employers know that the employee needs time off for a CFRA/FMLA- or ADA/FEHA-qualifying reason, they may claim that …
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This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.#4 – Failing To Provide Employees Information About Their Leave Rights
Employers have an obligation to inform employees about their leave rights. For example, an employer must “give its employees reasonable advance notice of employees’ [Fair Employment and Housing Act] rights and obligations regarding pregnancy, childbirth, or related medical conditions,” including by posting a notice of leave rights in a conspicuous location, including it in a handbook or distributing it to employees separately, and giving a copy to the employee “as soon as practicable after the employee tells the employer of her pregnancy or sooner if the employee inquires about reasonable accommodation, transfer, or pregnancy disability leaves.” (Cal. Code Regs., tit. 2, § 11049, subd. (a), (d).)
Similarly, “[e]very employer covered by the [California Family Rights Act (“CFRA”)] is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions and providing information concerning the procedures for filing complaints of violations of the Act with the Department of Fair Employment and Housing.” (Cal. Code Regs., tit. 2, § 11095.)
If the employer fails to provide an employee reasonable advance notice of their leave rights under the…
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This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.#3 – Denying Pregnant Women Their Full Leave Time
Far too many employers demand that women return to work prematurely from their pregnancy/maternity leaves because they do not understand the interplay between the Pregnancy Disability Leave Law (“PDLL”), the Family and Medical Leave Act (“FMLA”), and the California Family Rights Act (“CFRA”). This is often the case when companies rely on human resources professionals located out of state who are not familiar with California law.
While the FMLA and CFRA generally overlap in their coverage, pregnancy is one situation where they do not. The FMLA covers leaves related to pregnancy and childbirth, while CFRA excludes pregnancy and childbirth-related medical conditions from its definition of “serious health condition.” (See Cal. Code Regs., tit. 2, § 11093.) Pregnancy disability leaves are instead protected under California law through the PDLL, which provides for up to four months of job-protected pregnancy disability leave for women disabled by pregnancy, childbirth, or a related medical condition. (Cal. Gov’t Code § 12945, subd. (a)(1).) PDLL’s protections apply to all women who work in California for employers with five or more employees; there are no eligibility requirements. (Cal. Code Regs., tit. 2, § 11037.)
Thus, in California, pregnancy disability leave under the PDLL runs concurrently with FMLA leave, but CFRA runs consecutively with it, so that an employee can get an additional 12 weeks of baby-bonding leave after their pregnancy disability leave ends. What this means is that a California employee who is covered by PDL, CFRA, and FMLA can get nearly seven months of leave (technically, four months and twelve workweeks) as she first exhausts her pregnancy disability leave for her own pregnancy- and childbirth-related conditions, and then takes the next twelve weeks as CFRA time to bond with her baby.
In addition, women who continue to be disabled by pregnancy or childbirth-related conditions even after the expiration of pregnancy disability and CFRA leave may also be entitled to…
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This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.#2 – Failing to Consider All Medical Leave Rights Together
Each of the leave laws that protect California employees operate independently of each other. This means that “[a]n employer must therefore provide leave under whichever statutory provision provides the greater rights to employees.” (29 C.F.R. § 825.702(a).) For example, the Family and Medical Leave Act (“FMLA”) allows an employer to place an employee returning from a covered leave in an “equivalent” position. (29 C.F.R. § 825.215.) In contrast, under the Americans with Disabilities Act of 1990 (“ADA”), an employee who is granted leave as a reasonable accommodation is “entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship.” (See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (Oct. 17, 2002), at Q&A 18.) Therefore, if an employee on a medical leave is covered by FMLA, the California Family Rights Act (“CFRA”), the ADA, and the Fair Employment and Housing Act (“FEHA”), the employer would need to reinstate her to her original position following a return from a medical leave, absent the employer demonstrating undue hardship.
The FMLA regulations, at 29 C.F.R. section 825.702, provide several additional examples of the interplay between the ADA and FMLA, including the following…
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All too often, when employees with disabilities request medical leave, employers fail to properly respond to the requests. They may deny medical leaves to which employees are entitled, may impose requirements that are not lawful, or may fail to honor employees’ reinstatement rights. Over the next few weeks, this series will explore the top ten ways that employers deny employees their medical leave rights.#1 – Failing to Consider Leave as a Reasonable Accommodation
When employees with disabilities request medical leaves, employers sometimes make the mistake of considering their obligations only under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. section 2601 et seq., and California Family Rights Act (“CFRA”), Government Code section 12945.2. Employers may wrongly believe that if employees do not meet the eligibility criteria under the FMLA and CFRA, or if they have already exhausted their FMLA/CFRA leave, they are simply ineligible for job-protected medical leave.
The law is clear, however, that leave can be a reasonable accommodation under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. section 12101, and the Fair Employment and Housing Act (“FEHA”), Government Code section 12940 et seq. (See, e.g., Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 [holding that “a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties”]; Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243 [“Even an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer.”]; EEOC, Employer-Provided Leave and the Americans with Disabilities Act (“EEOC Leave Guidance”) (May 9, 2016); 29 C.F.R. Pt. 1630 App. § 1630.2(o) [identifying as possible reasonable accommodations “permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment”].) Note that the FEHA looks to the ADA to provide a “floor of protection,” with the FEHA providing equal or greater protections to employees. (Cal. Gov’t Code § 12926.1.) For that reason, federal authorities are helpful in exploring the minimum protections afforded to employees.
ADA/FEHA leave often covers situations where FMLA and CFRA leave do not apply…
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21 Jun '17
What is sexual harassment? A lawyer’s response.
Sexual harassment is rampant in many workplaces. Sometimes it can take extreme forms (for example, sexual assault), but other times it can be created through offensive and inappropriate comments that a supervisor or coworker considers to be “just joking.” Unwanted sexual conduct and comments can turn an otherwise perfect job into a nightmare.
There are two categories of sexual harassment:
- Quid pro quo sexual harassment, and
- Hostile work environment.
Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment occurs when a supervisor or person with authority conditions an employee’s job or job benefits on the acceptance of sexual advances or conduct, or when the supervisor makes employment decisions based on whether the employee accepted the sexual advances/conduct. A supervisor can engage in quid pro quo sexual harassment in a number of ways, including with sexual propositions, graphic discussions of sexual acts, and sexual comments on the employee’s body.
It does not need to be explicit. For example, if a supervisor insinuates that an employee will have to sleep with him to advance in the company, that is quid pro quo sexual harassment. Having to submit to sexual advances–or even having to laugh along to someone’s inappropriate sexual jokes–should never be a factor in whether someone succeeds at work. . . .
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Mizrahi Law is pleased to announce that founder Ramit Mizrahi has been selected for two highly prestigious lists:
- Super Lawyers® Up-and-Coming 100: Southern California Rising Stars 2017, and
- Super Lawyers® Up-and-Coming 50: Women Southern California Rising Stars 2017.
This is the third year that Super Lawyers has identified its most highly rated Rising Stars on top 50 and top 100 lists.
This also marks the fifth year that Ramit Mizrahi was selected a Super Lawyers® Southern California Rising Star. Only the top 2.5% of eligible attorneys in Southern California are selected as Super Lawyers Rising Stars, reflecting peer recognition of excellence in practice. Ms. Mizrahi was selected in the area of Employment Law (Plaintiff side), recognizing her commitment to helping employees.
Ms. Mizrahi’s selection as one of the top 100 Rising Stars and top 50 Rising Stars women–already a highly select group of attorneys–reflects that she is highly respected among her peers and is one of the top-rated attorneys in Southern California.
Ms. Mizrahi remains committed to serving as a tenacious advocate for her clients while working to build collegiality and community in the legal profession.
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On June 20, 2017, Ramit Mizrahi will be speaking about mediating discrimination cases. The panel, titled “Mediating Employment Discrimination Cases in Changing Times,” will be presented at the Southern California Mediation Association’s 2017 Employment Mediation Institute.
Date and time: Tuesday, June 20, 2017, 6-9 p.m.
Description:
Have you found yourself thinking lately, “Wow, the world is changing at a rapid pace and I don’t know what will happen next?” Just as we have seen significant changes in the political and social realms, the field of employment law is rapidly evolving. State laws have taken on a greater importance, including with respect to protections for LGBT employees and undocumented employees. Additionally, long-standing rules have been construed in recent years to expand the scope of protected activity and protection against retaliation. There is much uncertainty ahead.
Please join our panel as they discuss the evolving employment law landscape, along with the practical implications and application for practitioners and mediators. Each of the panel members are at the forefront of handling cutting edge employment and labor law matters and will share their expertise, insights, and predictions for the world of employment law to come.
It promises to be a great evening!Location: Pepperdine University West LA Campus, Pepperdine University Plaza, 6100 Center Drive, Los Angeles, CA 90045.
Tickets are available here.
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On March 8, 2017, Ramit Mizrahi will be speaking about the summary judgment cases that every California employment lawyer should know. The panel, titled “The 50 Cases You Need to Know to Obtain and Oppose Summary Judgment,” will be part of the Los Angeles County Bar Association’s 37th Annual Labor & Employment Law Symposium.
Date and time: Wednesday, March 8, 2017, 10-11 a.m.
Description: Learn the top 50 cases you need to know in preparing and opposing motions for summary adjudication and/or summary judgment in major areas of employment law, including claims of harassment and discrimination based on race, gender, age, disability and claims of retaliation.
Location: Millennium Biltmore Hotel Los Angeles, 506 S Grand Ave, Los Angeles, CA
Tickets are available here.
