Articles Posted in Family Leave

Starting on January 1, 2021, the California Family Rights Act will cover more employees and for more for reasons than ever before! You can find the text of the new law, SB 1383 here.

Who is Covered by the Current Law?

Under the current law, employers with fewer than 50 employees within a 75-mile radius were not required to provide family or medical leave to their employees. Likewise, employers with fewer than 30 employees within a 75-mile radius were not required to provide baby-bonding leave under the New Parent Leave Act. The employer size requirements left many employees without any job-protected leave to care for their own medical conditions, their family members’ medical conditions, or the birth or adoption of a new child.

Last week, the United States legislature passed the Families First Coronavirus Response Act in response to the ongoing COVID-19 pandemic. This new law provides some much needed relief for workers who are out of work because they or their family members have contracted COVID-19, or because they do not have child care due to school and daycare closures. Below is a summary of what rights you may have under the new law.

What does the new law provide?

  • 10 Paid Sick Days for full-time workers

We know many employees are facing uncertainty about their jobs in light of the current pandemic. You may have questions about what you can do if you are sick, or if you have been laid off due to cuts that have been made as a result of COVID-19 /Coronavirus. Many government agencies have put out guidance on how employees can protect themselves and benefits they may be entitled to if they are out of work due to the COVID-19 outbreak. Below we have summarized some resources that we hope will be helpful.

Sick with or Exposed to COVID-19

In California, the California Family Rights Act (“CFRA”) provide up to 12 weeks of unpaid job protected leave within a 12 month period to care for yourself or your immediate family if they have a serious health condition. A serious health condition includes any illness that causes any period of incapacity requiring absence from work, school, or other regular daily activities for more than 3 consecutive days. To be eligible for CFRA leave, you must have been employed with your employer for 12 months and you must have worked at least 1250 hours in that twelve month period and your employer must employ 50 or more people within a 75 mile radius. While the CFRA does not provide pay, other laws may provide wage replacement, and your employer may also have other benefits and programs that you may be able to utilize during this time.

In June 2017, San Francisco enacted a groundbreaking ordinance that requires employers to provide lactating employees with reasonable breaks and a safe, clean space to pump breast milk. The ordinance acknowledged the health benefits and importance of breast feeding to both children and lactating mothers. The ordinance also prohibited employers from retaliating against women who attempted to exercise their lactation rights and provided enforcement procedures. However, the ordinance only applied to employees who worked in San Francisco.

Although California has had basic “lactation accommodation” requirements since 2002, earlier this month, the legislature enacted an amendment to the Labor Code to provide lactation rights, similar to those enacted in San Francisco, to employees throughout the state. The changes to the law provide that a lactating employee is permitted a “reasonable amount” of break time to express breast milk for her child, each time she needs to do so, as well as a private room to express breast milk.

Even prior to these amendments, employers were supposed to provide a room other than the bathroom for an employee to express breast milk. The changes to the law reiterate that the room shall not be the bathroom and also sets forth several additional requirements including that the room must: (1) be safe, clean, and free of hazardous materials, (2) contain a surface to place a pump and personal items, (3) have a place to sit, and (4) have access to electricity or alternative devices (i.e. extension cords or charging stations). In addition, an employer must provide a sink and refrigerator (or other “cooling device” if a refrigerator cannot be provided) for storing breast milk.

On June 24, 2013, the United States Supreme Court issued two rulings that were met with a roar of approval from equal rights advocates from coast to coast. Just days before the annual LGBT pride celebrations got underway nationwide, the Supreme Court struck down the Defense of Marriage Act (“DOMA”), and issued another decision which resulted in same-sex marriages resuming in the state of California.

Although the most obvious effect of Hollingsworth v. Perry is that same-sex couples once again have the right to get married in California, many same-sex couples are now wondering how their rights, if they choose to get married, will be impacted with respect to their employment. One of the many benefits same-sex spouses are now entitled to is family leave under the federal Family Medical Leave Act (“FMLA”).

In U.S. v. Windsor, the Supreme Court struck down a provision of DOMA that defined the term “spouse” as only a person of the opposite sex who is a husband or wife, and defined “marriage” as a legal union between a man and a woman. There are over 1,000 federal statutes that use the term “spouse,” and among them is the FMLA which provides up to twelve weeks per year of job-protected unpaid leave for covered employees. Prior to the U.S. v. Windsor decision, same-sex spouses could not take FMLA leave to care for each other because they were excluded from coverage by the opposite-sex definition of spouse in DOMA. Now, however, same-sex spouses are entitled to coverage under the FMLA and may take leave to care for their spouse with a serious health condition. Unfortunately, however, this decision does not have an impact on couples in recognized domestic partnerships or civil unions which means, same-sex couples who are not married are still without FMLA rights.

Employers shouldn’t have such a tough time figuring out whether and when an employee is eligible for a protected leave of absence under California law (California Family Right Act – CFRA) or federal law (Family and Medical Leave Act – FMLA). This case is a prime example of the mishaps – here unremedied – that occur when an employer doesn’t understand and accurately convey the law to an employee, leaving the employee, Mr. Olofsson, in an unfortunate lurch. Olofsson v. Mission Linen Supply (2012) 211 Cal.App.4th 1236

Mr. Olofsson worked as a driver for Mission Linen Supply. His parents lived in Sweden and he had previously received time off to visit his parents in Sweden. When he learned his mother was scheduled for back surgery, he asked for seven weeks off to return to Sweden and care for her. He made his request approximately one month before his leave was to begin.

In response, the company acted like he would receive his family leave after he submitted the right paperwork and everything was squared away. He was assigned to train a temporary employee to cover for him while he was out.

Mr. Richey worked as a sales manager at a Toyota dealership. He suffered a back injury while moving furniture at home, and applied for family leave from Toyota. The leave was granted, but Mr. Richey was fired because his employer alleged that he was abusing his family leave by working in a family restaurant he owned while on his family leave. Mr. Richey contended that his work at his restaurant while on leave was limited, light-duty work, and that he really could not do his regular duties at the Toyota dealership. Richey v. Autonation, Inc., 210 Cal. App. 4th 1516 (2012)

When Toyota fired Mr. Richey, Mr. Richey evoked his rights under a mandatory arbitration agreement that Toyota required that he sign as a condition of his employment. After an 11 day hearing, the arbitrator ruled against Mr. Richey on his interference claim, i.e. his claim that Toyota interfered with or denied his right to family leave under the California Family Rights Act (CFRA) and the federal Family Medical Leave Act (FMLA). The arbitrator held that the employer was not liable because it terminated Mr. Richey’s employment because it honestly, but mistakenly, believed he misused his family leave.

Mr. Richey moved to vacate the arbitrator’s award, noting two things: (1) under both state and federal law, an honest mistake based on the employer’s state of mind is not a defense, and; (2) an arbitrator’s error of law that results in a denial of a party’s unwaivable statuatory right (in this instance his right to family leave) exceeds the arbitrator’s power and should be vacated.

Sometimes reading a U.S. Supreme Court case really makes you wonder whether the courts forget to enforce the intent of our anti-discrimination laws. Take the case of Coleman v. Maryland Court of Appeals 132 U.S. 1327 (March 20, 2012), contrast it with the Supreme Court’s prior holding in Nevada Department of Human Resources v. Hibbs 538 U.S. 721 (2003), and scratch your head.

Hibbs looked at whether the Family Medical Leave Act (FMLA) applied to and protected state employees and held that it did. The facts in Hibbs involved an employee taking family leave to care for a family member with a serious illness. The Supreme Court held that Congress, when passing the FMLA, intended to let a state worker sue its employer in federal court under FMLA (i.e., it meant to abrogate the Eleventh Amendment ban against suing a state in federal court.) In other words, state employees should be entitled to a family leave just like everyone else.

One would think that Coleman – examining basically the same question – would come out the same. Not so. In Coleman, the Supreme Court held that if the family leave is for the state worker’s own serious health condition, Congress didn’t intend to let the state worker sue. So in Coleman, the Supreme Court says state workers don’t get the same rights to family leave as does everyone else.

Under federal law, an employee can bring a claim against an employer for failure to reinstate him or her after a family leave permitted under the Family & Medical Leave Act (FMLA) (state law provides the same protection under the California Family Rights Act (CFRA)). An employer can defend against such a claim by proving that it has a legitimate reason to fail to return the employee to work, such as the employee cannot perform the essential functions of the position. 29 CFR Section 825.214(b). After Ms. Sanders took a one month family leave due to chemical sensitivities, her doctor returned her to work. Sanders and her doctor believed she could return to work because her employer, the City of Newport, had stopped using the type of paper that was causing her medical problems. The City of Newport refused to reinstate her, claiming that it could not provide her with a safe workplace, and did not know exactly what caused her chemical sensitivities. Sanders v. City of Newport, (9th Cir. March 17, 2011) 657 F.3d 772.

This case was tried in federal district court in Oregon on both a FMLA and a state family leave claim under Oregon law. Regarding the FMLA claim, Ms. Sanders asserted that it was the employer’s burden to prove that she was denied reinstatement for a legitimate reason. The district court disagreed, and instructed the jury that it was the employee’s burden of proof. Thankfully, the Ninth Circuit reversed, agreeing with Ms. Sanders, and establishing the important precedent that the employer bears the burden of proof on its claim that it has a reason not to return an employee back to work after a family leave.

Employees in California also have the protection of CFRA and CFRA itself indicates that the employer must “guarantee” reinstatement. Gov. Code Section 12945(a) and 2 Cal. C. Regs. Section 7297.2(a), (c). Although this doesn’t address the burden of proof issue, presumably the courts will interpret CFRA the same as FMLA for this issue.

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