Managing CALIFORNIA Family Rights Act and FMLA Compliance

By Martha J. Cardi

Think workers comp is hard to manage? Try FMLA, state and other leaves of absence.

 

These overlapping and ever-changing leave laws are so complicated many employers either grant too much leave in fear of being out of compliance, or refuse leave that legitimately should be granted, exposing the employer to risk of lawsuits. (WCxKit)

 

How employers (and/or their TPAs) manage FMLA can have a big impact on costs, productivity, employee morale and, perhaps most important, reduce the risk of legal action for claims of noncompliance. Quite simply, it pays to devote the resources to make sure it is done right.

 

To give you an idea of how complicated managing these leaves can be, consider this hypothetical scenario and how it should be correctly handled. While reading, keep in mind that, while this scenario looks overblown, in real life it actually can get much more complicated than this.

 

California Family Rights Act and FMLA

This scenario about how FMLA and state laws interact in a domestic partnership with multiple illnesses shows how the timing of multiple leaves can have a huge impact.

 

Marie and her registered domestic partner Susan live together with Susan’s 10-year-old child, Thomas.  Thomas is diagnosed with a serious health condition and needs physical care at home. Both Marie and Susan work for California employers that are covered by both the California Family Rights Act (CFRA) and the FMLA.

 

Can Marie and Susan take time off to care for Thomas?

 

Both FMLA AND CFRA provide 12 weeks of job-protected leave within one leave year to care for certain family members as defined by the statutes. As Thomas’s mother, Susan is entitled to take up to 12 weeks of job-protected leave under both FMLA and CFRA to care for him. Her leave under each act runs concurrently. After 12 weeks she has exhausted her FMLA and CFRA entitlements for her employer’s defined leave year.  

After Susan has exhausted her leave rights, Marie takes time off to care for Thomas. Marie also is entitled to 12 weeks off under each leave act. CFRA provides time off to care for a child with a serious health condition under two conditions.  (1) If the child is the child of the employee’s domestic partner and/or (2) a child with whom the employee stands “in loco parentis” (in the place of a parent or like a parent, providing care and/ or support).

The FMLA does not provide leave to care for the child of a domestic partner, but does provide time off to care for a child with a serious health condition if the employee is in loco parentis to the child.  Because Marie, Susan, and Thomas all live together and Marie helps provide financial support and parenting care for Thomas, she qualifies for this leave and in caring for Thomas, exhausts both her FMLA and CFRA rights for the leave year.

Note that the result would be the same if Marie and Susan work for the same employer. Neither FMLA nor CFRA require parents employed by the same employer to share time off to care for a child with a serious health condition.

To understand the complexity of these laws, suppose that before Thomas’s illness, Susan had experienced her own serious health condition. Marie stayed home from work for 12 weeks to provide Susan with physical care during her injury and recovery. This leave is covered by CFRA, which provides leave rights to care for a registered domestic partner with a serious health condition. Susan has exhausted her CFRA time for the leave year, but, her time off does not count toward her FMLA leave rights, as the FMLA does not provide job-protected leave to care for a domestic partner with a serious health condition.

Then when Thomas becomes ill with a serious health condition and needs physical care at home. Marie can take another 12 weeks of leave during the leave year to care for Thomas because she stands in loco parentis to him, and her FMLA rights were not exhausted during her time off to care for Susan.

Note that if Susan’s and Thomas’s serious health conditions occurred in reverse order, Susan’s CFRA and FMLA rights both would have been exhausted in caring for Thomas first, and she would not have had any job-protected time left under CFRA to care for Susan. 

What Should You Be Doing to Better Manage Leaves?

The takeaway from this example is that leave laws form a complex web that continually has to be untangled for each case. In addition, these laws are constantly being amended and updated as challenges are decided on in court. (WCxKit)
 

Every employer should:

1. Make sure supervisors are aware that leave laws are complex and that they should not try to handle leave requests without help from their HR, benefits, or legal department.

 

2. Make sure supervisors are aware their attitude is important, and that if they respond negatively to requests for leave, it could be construed as FMLA interference and expose the employer to potential legal action.

 

3. Understand that employers do not have to grant every leave request just to avoid the risk of noncompliance. With proper understanding of leave laws, there are many ways that employers can reduce the burden of unnecessary leaves while still giving employees the leaves to which they are entitled.

 

Up-to-Date Leave Law Information is the Key.

No human being can be expected to hold this kind of complexity in his or her head, and researching leaves on various government databases is both time consuming and increases the risk of missing any important change or guidance on a gray area. Be sure you have the most current information on FMLA, state and other leave laws available in a format that is easy to search, complete and always up-to-date. If you encounter any “gray areas” in leave laws, be sure to seek expert advice to minimize the risk of legal challenges.