Administering agent leave ranks amid the best afflictive of challenges for employers, and for those operating in California the assignment is alike added daunting. They charge argue with a check of employee-friendly statutes, both accompaniment and local, including laws mandating employer-paid leave for affliction and added reasons. With federal law befuddled into the mix and new measures continuing to percolate, acknowledging with the countless acknowledged requirements is no baby feat.
The approved obligations can be disconnected into two accompanying prongs. “On the one hand, there is the appropriate to adequate leave from work; on the other, there is the appropriate to allowance backup while on adequate leave from work,” acclaimed Charles L. Thompson, an advocate with Ogletree Deakins in San Francisco. “How do I get leave, and how do I get paid for it?”
Apply the Best Employee-Protective Law
The California Ancestors Rights Act (CFRA) allows advisers to booty up to 12 weeks of leave due to their own or a ancestors member’s austere bloom condition, or for a child’s birth, acceptance or advance affliction placement. Administration charge accede with both the CFRA and the Ancestors and Medical Leave Act (FMLA), its federal equivalent. The adaptation rules are the same: Advisers charge accept formed for the employer for at atomic 12 months (as of the date the leave starts), formed at atomic 1,250 hours in the antecedent 12 months and assignment at a area with 50 or added advisers aural a 75-mile radius.
Where the statutes differ, however, the added employee-protective of the two applies. In best situations, that’s the CFRA. For example, the CFRA prohibits administration from allurement bloom affliction providers to analyze the employee’s austere bloom condition, while the FMLA allows the appeal of such information. (This agency that California administration should use the state’s medical acceptance anatomy instead of the more-intrusive federal Department of Labor form.)
Abundance Leave Is Separate
When an agent needs to booty leave because she is disabled as a aftereffect of pregnancy, accouchement or a pregnancy-related condition, such as astringent morning affection or gestational diabetes, the California Abundance Affliction Leave Law (PDLL) applies. The law grants advisers up to four months of adequate contributed leave, which the accompaniment measures as 17.3 weeks for a full-time employee. Importantly, while PDLL leave runs concurrently—at the aforementioned time—with FMLA leave for 12 weeks, PDLL leave does not run appropriately with CFRA leave, authoritative PDLL a abstracted leave entitlement.
Afterwards backbreaking PDLL leave, an agent may booty up to 12 weeks added beneath the CFRA for baby-bonding purposes. Advisers charge complete this bonding leave aural one year afterwards bearing or adoption. Although the FMLA allows administration to authorization that advisers booty bonding leave all at one time, California administration can crave bonding leave alone in minimum two-week increments, and alike then, advisers can booty bonding leave in beneath than two-week increments on any two occasions.
Leave May Be Reasonable Accommodation
What’s the best accepted leave-related catechism that administration ask? Thompson corrective this scenario: “My agent was out on CFRA leave for the abounding 12 weeks, and can’t appear back. He got a doctor’s agenda adage he bare accession three weeks; three weeks afterwards he got accession note, and another. The employer wants to know: Can I aish him now? How abundant leave do I accept to accommodate this employee? How abundant leave is too much?”
It’s a arresting bearings for employers, no doubt. But California law is bright that if an agent cannot acknowledgment to assignment afterwards CFRA leave, he or she may be advantaged to added contributed time off beneath the California Fair Application and Housing Act (FEHA), which protects advisers from disability-based discrimination.
“When the agent aboriginal says he needs added leave afterwards he’s beat ancestors medical leave, at that point you should be agreeable in the alternate action to actuate whether the agent has a disability, whether it is a reasonable adaptation to accommodate an continued leave of absence and whether reasonable apartment added than a leave of absence are available,” Thompson advised.
In fact, California affliction regulations especially accompaniment that an employer charge appoint in the alternate action if an agent who has beat his or her ancestors medical leave indicates that he or she needs added leave. (California law, clashing federal law, allows advisers to accompany claims for abortion to appoint in the alternate action in such instances.)
Quite simply, if a leave of absence is acceptable to accomplish it so the agent can acknowledgment to work, afresh it’s a reasonable accommodation, Thompson explained. “But you can’t accumulate adage ‘three weeks’ forever. At some point all the extensions add up to actuality an ample leave. And the law is clear: An employer does not accept to accommodate ample leave.” Moreover, an employer does not accept to accommodate leave as a reasonable adaptation if accomplishing so would be an disproportionate hardship. The best the leave and the greater the appulse on an employer’s operations, the added acceptable it is that an employer will be able to appearance disproportionate hardship.
Finally, California and federal law are bright that an employer cannot apparatus a best leave action that would acquiesce for the abortion of advisers afterwards they accept been on leave for a assertive aeon of time. Instead, administration charge appraise leave and disproportionate accident on a case-by-case basis.
Best Leave Rights Run Concurrently
Most agent leave rights run at the aforementioned time (with the barring of the PDLL and a few added approved provisions). That includes leave beneath the Americans with Disabilities Act and the FMLA, paid ailing leave, concise affliction leave, leave taken beneath workers’ advantage law and leave provided to amalgamated advisers beneath aggregate acceding agreements.
“The accepted aphorism is that administration should accomplish leave run appropriately as abundant as they possibly can,” Thompson said, in adjustment to abbreviate the admeasurement and appulse of the employee’s absence. “If my agent has an anatomic injury, I appetite to accomplish abiding that he’s additionally application his ancestors medical leave time for a austere bloom condition.”
Getting Paid for Leave
It’s a civic trend: Paid-sick-leave bills are proliferating above the country. At atomic bristles states now crave employer-paid ailing leave, and there are agnate laws in 25 municipalities and counting. At the federal level, a long-shot admeasurement alien in Congress in 2015 would authorization that clandestine administration accommodate seven canicule of paid leave anniversary year. And it was California that led the way, as is so generally the case. Nudged by San Francisco, which allowable the nation’s aboriginal paid-sick-leave admeasurement of its affectionate a decade ago, the accompaniment assembly anesthetized the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA), which applies to best administration aural the state.
Beneath the HWHFA, administration charge admission advisers paid ailing leave that they can use afterwards 90 canicule of employment. Administration can accord advisers 24 hours or three canicule “upfront” anniversary year for use throughout the year. These hours do not backpack over from year to year. Alternatively, administration can accommodate paid ailing leave on an accretion base of one hour of paid ailing leave for every 30 hours worked. If the employer uses the accretion method, the employer can cap leave accretion to 48 hours per year. The agent begins accruing afresh already the agent uses some paid ailing leave and avalanche beneath the cap. In addition, administration that use the accretion adjustment can absolute an employee’s use of paid ailing leave to 24 hours aural a 12-month period.
Advisers can use paid ailing leave for their own affliction or to affliction for assertive ancestors members. They additionally may use the leave for “safe time” in the accident of animal advance or violence.
Important changes to the HWHFA were afresh enacted: While the paid-leave allowances ahead amounted to 55 percent of an employee’s income, that akin will acceleration to 60 or 70 percent of an employee’s pay (depending on his or her income). Also, the accepted seven-day cat-and-mouse aeon that applies afore allowances bang in will be alone as of Jan. 1, 2018.
Accompaniment Law Establishes Floor, Not Ceiling
The HWHFA establishes minimum requirements alone and is accurate to agenda that administration may, of course, accommodate added paid-leave allowances aloft and above the approved floor. Administration additionally charge accede with any added applicative laws that action added acceptable paid ailing leave. In California, there are several.
For example, beneath the San Francisco Paid Ailing Leave Ordinance, which preceded the accompaniment law, advisers who assignment in the burghal and canton of San Francisco accumulate one hour of paid ailing leave for every 30 hours formed aural the jurisdiction. Administration with beneath than 10 advisers may cap ailing leave accretion at 40 hours; beyond administration may bind accretion to 72 hours. San Francisco’s accretion accouterment is added favorable to advisers than the accompaniment law.
Additionally, while the CFRA allows advisers to use alone bisected of their accessible ailing leave to affliction for ailing ancestors members, San Francisco lets advisers use all of their accrued leave to that end, if charge be; it additionally defines “family” added broadly, and allows an agent who does not accept a apron to baptize any added being for whom the agent may booty leave to affliction for.
Complicating matters: The San Francisco authorization is not added employee-friendly above the board, so its specific directives don’t automatically apply. For one, the state’s HWHFA’s rehire provision, which mandates that bare paid ailing leave gets reinstated if a afar agent allotment to assignment for the employer, is added acceptable to San Francisco-based employees.
Several added California cities now accept paid-sick-leave measures with allowances that beat state-law requirements. A Los Angeles ordinance—just active into law on June 2, 2016—will accommodate advisers alert as abundant paid ailing leave as accompaniment law requires. In Los Angeles and Santa Monica, auberge employees, specifically, get alike more. Emeryville and Oakland accept bounded paid-sick-leave laws, too. San Diego will anon accompany their ranks, through a voter-approved paid-sick-leave authorization anesthetized on June 7, 2016, which takes aftereffect already the votes are certified. Berkeley allowable paid leave legislation, able Oct. 31, 2017.
Employers operating in these localities charge undertake clause-by-clause comparisons to ensure they accommodate their advisers with the best allowances beneath all the applicative statutes.
Can Administration Array Paid Time Off?
Common now are paid-time-off (PTO) behavior that array ailing days, claimed canicule and vacation into one pool. Does the actualization of paid ailing leave crave a revamping of PTO? It depends. Administration with PTO banks as acceptable as the paid-sick-leave laws crave are acceptable in compliance; those that aren’t as acceptable will accept to accommodate added ailing days.
Further, administration charge accommodate their PTO accretion ante to the paid-sick-leave accretion ante allowable by law. Note, too, that California law requires administration to pay out accrued and bare PTO to advisers aloft termination, but does not crave the aforementioned with ailing pay, so it may be astute to abstracted the two about in adjustment to abate the accrued time that an employer charge pay at termination.
Paid Affectionate Leave and “One-Offs”
Proving already afresh to be the bellwether, San Francisco on April 5, 2016, allowable the nation’s aboriginal absolutely paid affectionate leave law. Currently, California’s Paid Ancestors Leave affairs provides fractional allowance backup for advisers who are on adequate leave for assertive condoning affidavit beneath added statutes, including baby-bonding. San Francisco’s Paid Affectionate Leave Authorization obligates administration to accomplish up the aberration amid the employee’s pay and the state’s fractional allowance replacement. Employers with 50 or added advisers charge accede alpha Jan. 1, 2017.
California administration additionally charge account a host of added accompaniment law accoutrement that ensure advisers will be able to booty adequate leave to accomplish aggressive service, vote, serve board duty, affirm in court, appear parent-teacher conferences, accord organs or cartilage marrow, serve as advance firefighters or assets accord officers, or to accomplish civilian air convoying duties. For workers active by the state, alike added accoutrement apply. Some of these measures administer to all employers; some accept minimum-employee thresholds. All run appropriately with added forms of leave.
Putting the Pieces Together
Administratively, the overlapping obligations can be boxy to navigate, decidedly for administration operating in abundant California municipalities (or in added states, too). Consider, for example, a aggregation that manages hotels above California and elsewhere. It charge attack with statewide obligations, alien bounded measures and added sick-leave accoutrement altered to the industry.
If one of its landscapers “floats” amid accessories in Oakland and San Francisco, she accrues paid ailing leave beneath the San Francisco Paid Ailing Leave Authorization for the hours formed in San Francisco—which she cannot use in Oakland—while additionally accruing ailing leave beneath Oakland’s sick-leave authorization for hours formed in Oakland, which she cannot use in San Francisco. However, all of her hours would calculation against accompaniment paid ailing leave. Meanwhile, her analogue in Santa Monica gets still added ailing leave, per bounded ordinance.
Perhaps alfresco of California, the aggregation endows its assorted leave allowances to full-time agents only. In the Golden State, though, part-time front-desk attendants, melancholia lifeguards, and added part-time melancholia and acting workers are covered beneath the HWHFA, and so are advantaged to paid-leave benefits, irrespective of the employer’s accepted allowances plan. While administration are accustomed to be added acceptable to full-timers, added agents charge be afforded at atomic their approved alms of leave.
Meanwhile, the auberge employer may accept altered obligations against its amalgamated employees, as abounding accompaniment and bounded laws accommodate aggregate acceding carve-outs. The account is that union-represented workers can accommodate alike bigger deals, or barter abroad their approved leave rights for a bigger plum. “This is not unusual,” Thompson acicular out. “Paid ailing leave is generally acclimated as a acceding chip.” Consequently, the company’s nonunion workforce may accept bigger leave benefits. On the added hand, some bounded ordinances don’t accommodate such exceptions, abacus yet accession band of complexity.
Do federal advisers break at the hotels back traveling on government business? An controlling adjustment issued by President Barack Obama requires federal government contractors, alpha in 2017, to accommodate advisers with one hour of paid ailing leave for every 30 hours worked. If it survives a awaiting acknowledged challenge, that admeasurement will awning a ample swath of clandestine administration in California—like the auberge abettor here, perhaps—that authority federal affairs and subcontracts.
Rules Present Authoritative Challenges
All the while, the company’s amount systems charge attempt to accumulate up. One accepted affliction point for employers, said Thompson, is the claim that employees’ accessible ailing leave antithesis be appear on their allowance statements anniversary payday. “It has accurate to be difficult administratively,” he said, “particularly if the employer processes the amount itself.” Abounding administration artlessly aren’t readily able to accede with the allowance account obligation.
Employers additionally attempt with adjustment their aggregation behavior to the disparate mandates. Is it best to advance one compatible leave action that covers all the bases or apparatus several altered behavior customized by jurisdiction?
“Many California administration with operations in added states adopt a compatible access to paid time off and leave, application the leave laws that are best acceptable to the agent so that the employer does not accept to anguish about altered behavior in altered handbooks,” Thompson replied. This action reduces authoritative problems as well, and can avoid assurance issues that can appear due to perceived unfairness.
Stringent Notice and Record-Keeping Requirements
The aggregate of these enactments—both the adequate agent leave and allowance backup provisions—carry acrimonious notice-posting, record-keeping and accompanying administration provisions, with after-effects for administration that don’t comply. The statutes about affection anti-retaliation protections for employees, too.
From an operational standpoint, administration charge anxiously blueprint their staffing needs with the apprehension that the availability of paid agent leave may able-bodied aftereffect in added agent leave. A abortion to plan appropriately can aftereffect in short-staffing and the consistent overtime costs.
Finally, accumulate a alert eye. New paid-sick-leave proposals are looming, in California and elsewhere, and those currently on the books are consistently accountable to change.
Lisa Milam-Perez, J.D., is a acknowledged editor/senior writer-consultant for Wolters Kluwer Acknowledged and Regulatory U.S. in Riverwoods, Ill.
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