Tag Archives: Family Medical Leave Act

NEW CASE: $4.5 Million Reasons to Engage In the Interactive process (and Provide reasonable Accommodation) to your disabled employees

In a recent California case, employers nationwide are reminded of the importance of engaging in the good faith interactive process and attempting to provide reasonable accommodation to a disabled employee.  California jurors, in a special verdict, recently awarded a disabled former employee a $4.5 million verdict for violating the California Family Rights Act (CFRA) and California Fair Employment and Housing Act (FEHA) when the employer terminated the employee while she was out on CFRA leave.

The Case

In 2015, the former employee went out on medical leave (CFRA leave) for a broken arm.  Shortly after going out on leave, the former employee was diagnosed with major depression and her treating physician advised her employer that she would require more time off than the 12 weeks provided under the CFRA.

Rather than engage in the interactive process with the employee to try to find a reasonable accommodation (or extend the employee’s leave), the employer terminated the employee when her 12 weeks of CFRA leave expired.  The former employee filed a lawsuit against her employer claiming that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment.  The employee also claimed that her employer had violated FEHA by failing to engage in the interactive process with her about her disability and by failing to provide her with reasonable accommodation.

The jury agreed with the plaintiff and awarded her the $4.5 million verdict ($546,000 for back and front pay, over $1.9 million in compensatory damages and $2.6 million in punitive damages).

Take Home for Employers

While a California case, this case highlights to all employers the importance of working with employees who require accommodation for a disability (i.e. the importance of engaging in the interactive process).  This case might have been brought under California law, but there are federal laws (i.e. the Americans with Disabilities Act and Family Medical Leave Act) that impose the same requirements on employers.  Under these laws, employers are required to engage in the interactive process to determine what reasonable accommodations are necessary so an employee can perform essential job functions.

The following are important steps to follow when engaging in the interactive process with an employee:

  • Document!!!!! When an employee requests a leave of absence or a reasonable accommodation, document that request.  Also, provide the employee an acknowledgement of the request in writing, to document that the request was received.
  • Talk to the employee about the request. Sit down with the employee and discuss the request and possible accommodation(s) that the company can offer.  Request additional information from the employee (or his healthcare provider) where necessary in order to determine exactly what the employee can (and cannot) do.
  • Document (again)!!!!! After these conversations with the employee, send the employee a confirming memorandum summarizing your conversation, outlining accommodations discussed, and detailing any action items that both the employee and company need to perform in order to continue with the process.
  • Complete the company’s action items AND follow up with the employee. Be sure to complete any action items assigned to the company in the confirming memorandum.  Also, follow up with the employee to check the status of his action items.  Do not assume that the employee will simply complete them, periodically touch base with the employee.  And, as always, document both the company’s actions, but also the follow up conversations with the employee.
  • Repeat this process. This process will need to be repeated until an accommodation is reached or a determination is made that no accommodation is possible.  Remember, under the ADA (and FEHA), a leave of absence is considered a reasonable accommodation.

Remember, the interactive process is a continuing process with your disabled employees.  Just because an accommodation is reached, that does not end the employer’s obligation to engage in the interactive process.  Employers need to follow up with their employees periodically and verify that the selected accommodation is still working for the employee (i.e. enabling the employee to perform the essential functions of the position).  If it isn’t, then the company will need to start the interactive process all over again.

PENALTY INCREASE — STOP Before Violating These Laws

The US Department of Labor recently announced that it is increasing the penalties associated with violations of several employment laws.  The penalty increase applies to all penalties assessed after January 2, 2018 for violations that took place after November 2, 2015.

The increase in penalties applies to the following violations, among others:

Law Violation Type Old Maximum Penalty New Maximum Penalty
Family Medical Leave Act Failure to post required FMLA notices $166 $169
Fair Labor Standards Act Willful or repeated violations the FLSA minimum wage and/or overtime provisions $1,925 $1,964
Violations of the FLSA child labor law provisions $12,278 $12,529
Violations of the FLSA child labor law provisions that result in serious injury or death $55,808 $56,947
Willful or repeated violations of the FLSA child labor law provisions that result in serious injury or death $111,616 $113,894
Occupational Safety and Health Act Violations of the OSHA provisions $12,675 $12,934
Willful or repeated violations of the OSHA provisions $126,749 $129,336
Failure to post required OSHA notices $12,675 $12,934
Failure-to-abate violations of the OSHA provisions $12,675 $12,934

In addition to the above-listed laws, the DOL also increased the penalties for violations of several other laws, including the Employee Retirement Income Security Act, the Immigration and Nationality Act, and the Employee Polygraph Protection Act, among others.

For a complete table of the increased penalties, click here.

NEW LAW: California Passes Parental Leave for Small Employers

Attention California employers … on October 12, 2017, California Governor Jerry Brown signed the New Parent Leave Act (SB 63) into law.  Under this new law, starting January 1, 2018, certain California employers are required to provide eligible employees with 12 weeks of unpaid, job-protected parental bonding leave.

Which employers are covered under this law (and required to provide this new leave)?

California employers who employ 20 to 49 employees within 75 miles of each other are covered by this law and required to provide this new benefit.

Does this new law extend FMLA/CFRA baby-bonding leave time?

No, this law does not apply to employees who are covered under the FMLA/CFRA, as these laws already provide 12-weeks of baby bonding leave.

However, an FMLA/CFRA-employer that has smaller locations (e.g. locations where the employees are not FMLA/CFRA-eligible due to not meeting the 50 employees within 75 miles requirement) are required to provide baby bonding leave to those employees who work at a worksite with between 20 or more employees in a 75-mile radius.

What employees are eligible for California Parental Leave?

The eligibility requirements are extremely similar to those under the FMLA/CFRA.  In other words, an employee is eligible for Parental Leave if he/she meets the following requirements:

  • The employee has worked for the employer for at least 12 months,
  • The employee has worked at least 1,250 hours in the 12-month period preceding the use of leave, and
  • The employee works at a worksite with 20 or more employees in a 75-mile radius.

How much leave is available to eligible employees?

Eligible employees may take up to 12 weeks of unpaid, job-protected leave during a 12-month period to bond with a new child within one year of the child’s birth, adoption, or foster care placement.

Is this leave paid leave?

No, the leave itself is unpaid.  However, employees are entitled to use accrued paid time off, such as paid vacation and sick leave, during the leave.  In addition, employees may also use California Paid Family Leave benefits for 6 weeks of this leave.

Do employers have to maintain an employee’s health benefits under this leave?

Yes, in addition to providing the leave of absence, employers are required to maintain and pay for the employee’s continued coverage under a group health plan at the level and under the same conditions that coverage would have been provided had the employee continued to work. Yet, if the employee fails to return to work following the leave, the employer is able to recover their portion of the premium provided that the employee’s failure to return is not due to the continuation, recurrence or onset of a serious health condition, or “other circumstances beyond the control of the employee.”

What if both new parents work for the same employer?  How does the leave work in that case?

In a case where both parents work for the same employer, both parents are entitled to a combined total of 12 weeks of unpaid parental leave.  The employer may, but is not required to, grant simultaneous leave to both employees.

What steps should employers take to prepare for this new leave?
Before this new law takes effect on January 1, 2018, California employers should first determine if they are covered employers under this law.  If yes, then affected employers should take steps to develop new policies and procedures relating to this leave of absence.  In addition, employers should train their managers and supervisors on how to comply with these new requirements.

Employee Provided FMLA Coverage Regardless of Company’s Size

The United States Sixth District Court of Appeal ruled that an employer was required to honor its promise of FMLA coverage, regardless of the employer’s size.  In Tilly v. Kalamazoo County, the court found that the employee had relied on the employer’s assurance of FMLA job protection prior to going out on leave.  The employee began his leave knowing that he was leaving in the midst of a big project.

At the beginning of his leave, an employer representative sent the employee a letter wherein he was told that he was “eligible for FMLA leave” and that it was “important that we [] utilize Family Medical Leave Act (FMLA) leave” during his time off.  The employer also provided him a “Notice of Eligibility and Rights & Responsibilities” form (the “Eligibility Notice”) with the box checked that the employer was “inform[ing]” him that he was “eligible for FMLA leave.”

The employer realized later that they, in fact, did not have 50 employees within a 75 mile radius and therefore, FMLA did not apply.  The employer then proceeded to terminate the employee citing the unfinished assignment as justification.

The employee sued the employer for violation of his FMLA rights.  The court found that the employer’s assurance that the employee was covered under the FMLA prevented the employer from later revoking the protections afforded under the FMLA, regardless of whether the employer actually had 50 or more employees.