1 LAW OFFICES OF GUTIERREZ, PRECIADO & HOUSE 2 251 South Lake Avenue, Suite 520 3 Pasadena, California 91101 4 (626) 449-2300 5 6 Re: Family Medical Leave 7 Site: 240 South Arroyo Parkway, 8 Pasadena, California 9 10 MR. HOUSE: If you don't know my name, I am 11 Calvin House. I am a partner at Gutierrez, Preciado & 12 House. Thank you for coming to our breakfast seminar 13 today. 14 And let me introduce to you the other lawyers 15 from the firm who are here. We have Sara Petit over 16 here, we have Iliana Alvarez, Isaac Ortiz, Eduardo 17 Montelongo. 18 And we put these on every three months, as a 19 lot of you know. At this point, our next one will be 20 on July 7, same place, topic to be announced. 21 If you did not receive in the mail the 22 announcement of today's seminar, make sure that you 23 give your name and address to Alice out there so that 24 we will be able to mail it to you next time. 25 We also announced the details on our web site, 1 1 the address of which appears on the back cover in this 2 column over here. Everyone got your materials as you 3 came in, I assume. There are two pieces. There is a 4 fold-over thing, and then there is a little insert that 5 we will be talking about. 6 And then we are offering an additional service 7 from this seminar, hopefully going forward. You see up 8 here we have a court reporter taking down everything 9 that I say, and she will also be picking up the 10 questions. This is Jonnell Agnew. She does lots of 11 court reporting for us, and she has kindly donated her 12 services so that we can get transcripts, which we will 13 post. 14 So if there are things that I say that haven't 15 made their way onto the written materials and you want 16 to check it later, you will be able to go to the web 17 site and pull down the transcript for today's session. 18 Our topic today is Family Medical Leave. And 19 in California, as you'll see on the front page of your 20 handout, there are actually four statutory schemes that 21 we need to be concerned with. 22 There are the state and federal family leave 23 statutes, which as of right now are fairly close to 24 each other, although there is one difference, and then 25 there is another major difference that is going to take 2 1 effect on January 1 of next year. 2 The federal statute is the one that is called 3 the Family Medical Leave Act, which gives rise to the 4 acronym F.M.L.A., and that's how most of us know this 5 whole general area of time off for family purposes of 6 one sort or another. 7 The California statute is called the 8 California Family Rights Act, which you will hear 9 referred to from time to time as the C.F.R.A. 10 So those two statutes set out the standard for 11 what we think of as Family Medical Leave. 12 Then we have a separate statute in California 13 that deals with pregnancy leave. It is part of the 14 state anti-discrimination law, the Fair Employment and 15 Housing Act. And that is normally referred to as 16 Pregnancy Disability Leave or P.D.L. 17 Then the fourth statutory scheme is a 18 disability insurance scheme which, as we will see, does 19 not actually give a right to time off. It provides a 20 monetary benefit to replace some of the money lost 21 while a person is taking time off for family leave 22 purposes. 23 State Disability Insurance has always been 24 available for those who qualify, if you take time off 25 to attend to your own health condition. And starting 3 1 July 1 employees become eligible to receive a monetary 2 benefit if they take time off for the other aspects of 3 family leave; for baby bonding or attending to the 4 health of a family member. 5 So in brief, those are the four statutory 6 schemes that we are concerned with. And now we want to 7 go through the details of how each applies, what 8 employers it applies to, and what it takes for an 9 employee to be eligible. 10 Now, the insert that you have we are going to 11 come back to when we get to the end, and after we have 12 been through all the schemes and eligibility, then we 13 will come back to this. And this is a form that the 14 U.S. Department of Labor has established. It is not an 15 official form, doesn't need to be used, but it's 16 helpful to look at how practically you would deal with 17 a leave request through the use of this form. 18 So let's start with F.M.L.A. and C.F.R.A. 19 Those are the federal and the state statutes that deal 20 with what we think of as Family Medical Leave. And 21 they are exactly the same, so when I talk about 22 eligibility and all of that, it is going to be exactly 23 the same except for two important distinctions. 24 First, and this is in effect right now, the 25 California Family Rights Act excludes any 4 1 pregnancy-related condition from its coverage. 2 And the reason that it does that is because we 3 have separate statutes; the disability provisions of 4 the Fair Employment and Housing Act, that covers that, 5 and you will see when we get to the very end the impact 6 of that on the amount of time that a pregnant woman is 7 able to take off. 8 So that is one difference. And the other is 9 that as a result of a new law that was passed last year 10 that becomes effective as of January 1 of next year, 11 January 1 of 2005, registered domestic partners become 12 eligible for all the rights and obligations of spouses. 13 And there was a right under the California 14 Family Rights Act to take time off to attend to the 15 serious health condition of a spouse, and the impact of 16 the new statute is that the C.F.R.A. will extend to 17 domestic partners as of the beginning of next year. 18 So those are the differences. Now let's go 19 through the things that are the same for both of them. 20 The statute does not apply to all employers; 21 it applies to public employers, and then it applies to 22 private employers who have 50 or more employees on the 23 payroll during any 20 or more weeks of either the 24 current calendar year or past calendar year. 25 So if you are right on the border of whether 5 1 you have 50 employees or not, you have to look back two 2 calendar years and look at the situation with regard to 3 any 20 weeks within those two calendar years. 4 So that's the employers that are covered. If 5 you are in that situation, you at least must post the 6 information about F.M.L.A./C.F.R.A., but as we will 7 see, there is a separate requirement to make a 8 determination when you have an employee eligible for 9 leave, and it may turn out that you actually are 10 covered by the law but you don't have any employees who 11 are eligible for leave. 12 So now let's move -- yes. Go ahead. 13 Q. Are part-time employees counted? 14 A. Yes, part-time; anybody who is carried on the 15 payroll. And sometimes that can even mean somebody who 16 is not receiving pay at the time because they are off 17 on some sort of leave, but you are still carrying them 18 for benefits or some reason like that. So it is 19 anybody who has been on the payroll during those 20 20 calendar weeks. 21 Now let's look at what employees would be 22 eligible to take the leave. Again, remember right now 23 we are just talking about Family Medical Leave under 24 C.F.R.A and the F.M.L.A. 25 In order for a particular employee to take 6 1 time off, he or she must have worked 12 months for the 2 employer. Now, those 12 months do not have to run 3 together. They could be spread out over years. But 4 they must have had at least 12 months of service, and 5 then within the past 12 months that person must have 6 put in 1,250 hours. 7 So must be employed for 12 months, and in the 8 preceding 12 months before taking the leave, the 9 employee must have put in 1,250 hours. 10 Now, the end result of that is that a lot of 11 the employees who may count towards the 50 actually 12 wouldn't be eligible for leave because they don't have 13 the 1,250 hours. 14 And the next requirement also limits the 15 circumstances in which employees can take leave. The 16 employee in question must be at a work site where 50 or 17 more employees are employed within 75 miles. 18 Now, what that means, let's assume we have a 19 company that has 30 employees in San Francisco, 30 in 20 L.A. and 30 in San Diego. That employer has more than 21 50 employees. There are 90. But there is no employee 22 who is at a work site where there are 50 or more 23 employees within 75 miles, so there is actually no 24 employee who is eligible to take any time off. 25 Q. Excuse me. 7 1 You have said that they had to have been 2 employed for at least 12 months of service with the 3 employee, and that could be over an extended period of 4 time, prior to them taking the Family Medical Leave? 5 A. Yes. 6 Q. I just want to make sure. 7 A. But as a practical matter, because of the 8 1,250-hour requirement it's unlikely that you are going 9 to have somebody that did three months one year, three 10 months the next, three months, three months, who would 11 be eligible, because they are not going to have 1,250 12 hours in the preceding 12 months. 13 1,250 hours works out to about -- somewhere 14 between eight and nine months of regular, five- 15 days-a-week employment. 16 Any other questions about those requirements? 17 Now, for C.F.R.A./F.M.L.A., what we think of 18 as the normal Family Medical Leave, the conditions that 19 give rise to the right to take time off are three. One 20 is baby bonding, the second is care of a family member 21 who has a serious health condition, and the third is 22 time off to attend to the employee's own serious health 23 condition. 24 For baby bonding, if both parents work for the 25 same employer, the employer can limit the combined 8 1 total for both to 12. So you don't wind up losing two 2 employees for 24 weeks total; you only lose the pair 3 for a total of 12 weeks together. 4 And that leave must be taken within one year 5 of the birth of the child, or if it's an adoption or 6 foster-child situation, within one year of the 7 placement of the child. 8 Q. When you say a combined total of 12 weeks, 9 would that be, say, eight weeks for the mother and the 10 balance for the father, but it can run consecutive? 11 A. Did you say "it can run consecutive"? 12 Q. Can it run consecutive? 13 A. It can run consecutive. 14 Q. So am I saying that right? If the mother 15 wants to be out the 12 weeks, the father gets nothing? 16 A. For baby bonding; correct. 17 Q. Okay. 18 A. But you see, it's going to depend upon what 19 type of leave the mother is taking, because if she's 20 taking P.D.L., that doesn't count against -- but we'll 21 get to that at the end after we have been through them 22 all. 23 But yes, that is the rule, 12 combined for 24 both parents for baby bonding purposes. 25 Q. Can they run concurrently, both the same time? 9 1 A. Could they both be out for six weeks, 2 essentially? 3 Q. Yes. 4 A. Yes, it's the combined total; that is what the 5 limit is on. They can both be out together, but it 6 would only be for six weeks if they were both out the 7 same amount of time. 8 Any other questions about that? 9 Q. So if she's out, she has 12 weeks for F.M.L.A. 10 and then an additional 12 weeks for C.F.R.A.? 11 A. It's actually -- when I get through, after we 12 are done with Pregnancy Disability Leave, we are going 13 to come to the chart that is on the back and address 14 that exact situation. It actually is four months and 15 then 12 weeks. But I'll explain how when we get to 16 that. 17 Q. Any other questions about the eligibility 18 part? We're going to get to Pregnancy Disability Leave 19 in a minute. Right now we are just talking about 20 straight family leave. 21 Now, the amount of leave that each person who 22 works for an eligible, for a covered employer is 23 entitled to, is 12 weeks. That's 12 weeks of leave. 24 It doesn't provide for payment. 25 Now, there is this paid family leave benefit 10 1 that we will talk about at the end that may provide 2 some money out of the state money that has been 3 collected for that particular program. 4 But the employer is not required to pay the 5 employee for that time off, although the employee is 6 entitled to use paid time that's available. 7 And the employer may require the employee to 8 use paid time off as part of the leave. So if someone 9 is going to take time off to attend to -- for baby 10 bonding purposes and they have vacation time on the 11 books, the employer can require them to use up that 12 vacation time while they are out so it's not still 13 sitting there when they come back. 14 Q. Do you have to use that time? 15 A. Do you mean the employer? 16 Q. Do the employees have to use their vacation, 17 if they choose not to? 18 A. If the employer requires them to, they must. 19 It's a matter of employer policy, but under the law the 20 employer has the right to insist that they use up their 21 paid time while they are off. 22 Q. Would that include sick leave? Like if, let's 23 say it's for baby bonding, can the employer require 24 that the employee use sick leave? 25 A. Can the employer require that the employee use 11 1 sick pay for baby bonding purposes? No. Sick leave, 2 you can require them to use it when it's for their own 3 serious health condition. For attending to the serious 4 health condition of a family member or for baby bonding 5 you can require them to use vacation time, but not sick 6 time. 7 If you have a policy that combines them both, 8 so you don't have a separate sick pay and vacation pay 9 but you have personal time off, then it's all treated 10 as vacation, so you can require them to use it all up. 11 Q. We have a number of situations where our guys 12 are coming back with the medical forms for F.M.L.A. 13 completed by the doctor indicating that they are there 14 to help the wife, to assist the wife. So we are kind 15 of forced to pay sick leave where we would normally 16 have them go on vacation. Is that under -- 17 A. No, that's under still another statute, which 18 I didn't even think to put in here, but we do have a 19 provision in California law that requires employers to 20 allow employees to use up to half of their sick time to 21 attend to the health condition of a family member. 22 That's what you are talking about; right? 23 So you get a doctor's certificate saying that 24 they have to take time off to help the wife. And so 25 that forces you to allow them to use up to half their 12 1 sick time. 2 Q. It goes beyond that, though. The sick days, 3 that would be half. It goes beyond that. 4 A. Why? 5 Q. I'm not too sure, we are in that area where we 6 are kind of forced to say, well, okay, the doctor is 7 saying that this person has to come up to assist the 8 wife and to help with the baby so -- 9 A. But you don't have to pay for it. After they 10 have used up half their sick time, then it's only for 11 their own illness that you have to pay for. 12 Q. Okay. 13 A. Beyond that, it's just a matter of employer 14 discretion as to how you want to handle the situation. 15 But the statutory requirement is, allow them to use up 16 to half of their sick time to attend to the serious 17 health condition of a family member. 18 So yes, that's an additional wrinkle that 19 isn't in here, but next time it will be. 20 So just to -- let me go back and sum up where 21 we are on the amount of leave. 22 You get 12 weeks off. If it's baby bonding, 23 that has to be taken within the year after the birth or 24 the placement, and if both parents work for the same 25 employer you can limit them both to a combined total of 13 1 12. 2 Now, the time off, the 12 weeks, the employee 3 doesn't to have take it all at once or in big chunks. 4 They are entitled to take it on an intermittent basis, 5 when it's needed. 6 And you can only charge their Family Medical 7 Leave bank with the shortest period of time that your 8 payroll system uses. If you have a payroll system that 9 pays people based on every 15 minutes, let's say, and 10 somebody is five minutes late because they had a 11 doctor's appointment and you want to charge their time 12 against F.M.L.A. for the doctor's appointment, you can 13 charge 15 minutes. 14 Am I confusing people? No? We got all of 15 that? 16 There is one additional complication here, 17 which has to do with exempt employees. Normally the 18 rule for exempt employees is, if they show up they get 19 paid for the week, unless they are off for some 20 personal reason. If they show up for five minutes 21 during the day, that counts for that day. You can't 22 charge them partial days. 23 An exception is made available through the 24 Family Medical Leave laws. You may, if somebody is 25 taking, if an exempt employee is taking time off for a 14 1 Family Medical Leave reason, you may charge that as a 2 portion of a day instead of just paying them for the 3 whole day. 4 All right. Have I confused you some more? 5 No, we're okay? Yes? 6 Q. One more time on that? 7 A. Normally -- see, because this touches on so 8 many areas we could really spend the whole day dealing 9 with all the Wage and Hour issues. Normally, under the 10 Wage and Hour laws, if you have an exempt employee and 11 that person shows up for work for five minutes, you owe 12 them for that day. If they miss an entire day of work, 13 because they're sick or they are off on some personal 14 business of their own, then you can charge that day 15 against their leave, or not pay them for it. 16 There is an exception to that rule for 17 F.M.L.A. If the exempt employee is taking half of a 18 day off for baby bonding purposes, you can -- for those 19 limited purposes, you can treat that person as 20 non-exempt and only pay them half the day. 21 Q. Is that only for baby bonding? 22 A. No, that is all F.M.L.A. I was using that as 23 an example. If it was for their own illness, the same 24 thing. 25 Q. Does an employer have the ability to in any 15 1 way control how the employee takes F.M.L.A. leave? For 2 example, if they are going to do it -- if we allow them 3 to do it intermittently, can we say, "Give us some 4 notice, give us an idea how you are going to do this"? 5 A. You are entitled to impose a notice 6 requirement. The problem is that if the need for leave 7 is unforeseeable, you can't insist on your notice 8 requirement. So if there is a sudden family emergency, 9 where they have to attend to somebody else's illness or 10 they suddenly become ill, then you're stuck because 11 they gave you as much notice as possible. 12 If it is a baby bonding purpose, generally 13 that's something that could be predicted ahead of time, 14 at least within a certain time frame, and you probably 15 would be able to insist on your notice requirement. 16 You can require notice of up to 30 days. 17 Q. I may be taking us down the wrong way. Tell 18 me, and you don't have to answer, if you have an exempt 19 employee who has exhausted all of their F.M.L.A., and 20 they are at work and they then take days off during 21 that workweek, or partial days -- 22 A. Then, right. 23 Q. -- do you pay them? 24 A. Then you are outside of F.M.L.A. 25 Q. You just have to pay them as an exempt 16 1 employee because they have exhausted it? 2 A. Right, because they have exhausted it, that is 3 true. 4 Q. Is there a rule about the 10 percent of the 5 higher earners? 6 A. Yes, key employees, and we are going to get to 7 that. 8 Now, next issue to deal with is how do we 9 count the 12 weeks, within what period of time? It's 10 12 weeks within 12 months, but there are different ways 11 in which you could count the 12 months within which the 12 12 weeks occur. 13 And those four -- there are four different 14 possibilities under the statute, and those are set out 15 at the bottom of the second page of your handout. 16 You can just use the calendar year. So if we 17 were dealing with -- if we used this method in 2004, as 18 soon as somebody used 12 weeks in 2004 they are done. 19 And if they use only a week in 2004, the minute we hit 20 2005, those weeks are all gone, and they start with 12 21 weeks in the new year. If they wind up taking the last 22 12 weeks of 2004 off, on January the 1st, provided that 23 they meet the 1,250 hours, they are entitled to 12 more 24 weeks for the next year. That is one method. 25 The next method is any fixed 12-month period. 17 1 So if the employer, for example, is on a fiscal year 2 that doesn't match up with the calendar year, you could 3 use that and it would work the same way. As soon as 4 that 12-month period ended, there would be a new 5 12-month period and there would be 12 weeks for the 6 next period. 7 The third method is to count the 12 months 8 following the employee's first use of Family Medical 9 Leave. So if an employee goes off today on a week of 10 Family Medical Leave, a year from now would mark the 11 end of the first 12 months and then we start the next 12 12 months. 13 And then the final method is, I think, the one 14 that usually works out the best for employers, and that 15 is a rolling period, where you look back 12 months. So 16 if somebody wants to take leave starting today, you 17 would look back 12 months and see how many leaves they 18 took, and if they were 12 weeks within the past 12 19 months, they are not eligible for any leave until we're 20 far enough in the future so that when we count back 21 there is some time that is available. 22 You must notify employees which method you are 23 using, because if you don't and there is a dispute at 24 some point, the Court or any enforcement agency looking 25 at it will use the method that is most beneficial to 18 1 the employee. 2 And what happens in that situation is, there 3 is a case in the Federal Court from a couple years ago 4 where the employer was using one method, the Court 5 determined that they hadn't given adequate notice of 6 the method, and the employee was therefore entitled to 7 leave when it was asked for. 8 But the employer said "no," and because the 9 employee went out anyway, the employer fired the 10 employee for exceeding the attendance policy. The 11 employee had a claim for retaliation for taking Family 12 Medical Leave in that situation. 13 So the consequences of not announcing it, and 14 then having somebody be entitled to leave under some 15 other calculation methods, are the possibility of a 16 lawsuit with tens, if not hundreds of thousands, of 17 dollars of damage. 18 So it's very important to make sure that you 19 settle upon the method and get it publicized. 20 Q. So in other words, the choices are choices but 21 only to the extent that you establish a policy. 22 A. Right. You must establish a policy and follow 23 that policy. Otherwise, each employee will have their 24 own policy based upon what's best for them at the 25 particular time. 19 1 Q. Does the policy have to be the same for 2 everyone? 3 A. The policy has to be the same for everyone, so 4 you should post a notice, put it in the handbook, which 5 says, "Our method for calculating Family Medical Leave 6 is the following." 7 Q. If we are the County of Los Angeles, which has 8 90,000 employees and 50 departments, is it -- does the 9 County have to establish it, or is it the department? 10 A. That's a good question. I would want to check 11 and make sure, but the County is the employer. I think 12 the County has to be the one that does it. 13 Okay. That, in outline, is Family Medical 14 Leave. 15 Now, I mentioned that as of January 1 of next 16 year the California Family Rights Act is going to 17 extend these rights to domestic partners. It is 18 registered domestic partners, which in California has a 19 special meaning. It means registered with the 20 Secretary of State. And in order to register with the 21 Secretary of State, the domestic partners have to file 22 a certificate in which they swear to the following: 23 They share a common residence. 24 They are jointly responsible for each other's 25 basic living expenses. 20 1 Neither one is married or a member of another 2 domestic partnership. 3 They are not related by blood in a way that 4 would prevent them from being married to each other. 5 They are both at least 18, and they are either 6 of the same sex, or one or both of them is over the age 7 of 62 and eligible for Social Security. 8 So "domestic partner" doesn't mean "we're 9 living together." It means you filed a certificate 10 under oath with the Secretary of State which recites 11 those particular requirements. If that's the case, it 12 is a registered domestic partnership and the members of 13 the partnership will have the same rights as spouses 14 under the California Family Rights Act. 15 Q. Do those that have recently been married in 16 California, does that in any way affect this? 17 A. That won't affect this because -- well, as of 18 right now I guess there would be an issue, on January 1 19 it won't matter, but as of right now, if there were an 20 issue I guess the California Supreme Court will tell us 21 the answer within the next couple of months. 22 Actually, no, they won't. They declined to 23 take up the marriage issue so it's now back in the 24 local courts in California to resolve the issue. So I 25 guess it's up in the air at the present time. 21 1 But as of January 1, it won't matter because 2 they will have the rights of spouses as of the first of 3 next year. 4 Q. Calvin, I think that L.A. County started that 5 this year. January 1, 2004. 6 A. With domestic partners? 7 Q. Yes. 8 A. Was that County policy? 9 Q. Yes. 10 A. I mean, it's easier to roll it out now, I 11 suppose, than have it happen next year. 12 And there's nothing to prevent an employer 13 from having a policy that allows people to take time 14 off to attend to the serious health condition of a 15 domestic partner. And I think that, actually, some 16 public agencies in their contracts require that sort of 17 thing. So that may be part of what is going on with 18 the County also. 19 Okay. Well, that's family leave. Now we're 20 going to move on to Pregnancy Disability Leave. And as 21 I mentioned, California Family Rights Act excludes 22 pregnancy-related conditions from its coverage because 23 it's covered by the separate Pregnancy Disability Leave 24 statute. 25 Now, this statute is more encompassing than 22 1 the California Family Rights Act because it extends to 2 public employers, and then to all private employers 3 with five or more employees. So it covers a whole lot 4 more private employers than the Family Rights Act does. 5 And what the Pregnancy Disability Leave 6 statute says is that a woman who is disabled by 7 pregnancy is entitled to up to four months off to deal 8 with the effects of the pregnancy itself. 9 It doesn't have to do with baby bonding; 10 doesn't have to do with attending to somebody else's 11 health condition. So a spouse doesn't have a right to 12 pregnancy leave to attend to the pregnancy of the 13 mother. That might be available under straight Family 14 Medical Leave. The pregnancy leave is just for dealing 15 with pregnancy-related conditions. 16 And just being pregnant isn't enough. The 17 woman must be "disabled by pregnancy." And by that we 18 mean that because of the pregnancy she is unable to 19 perform the essential functions of her job without 20 undue risk to herself, or the successful completion of 21 her pregnancy, or to other persons at the workplace. 22 "Disabled by pregnancy" also means severe 23 morning sickness or the need to take time off for 24 prenatal care. So any one of those things qualifies 25 the woman for Pregnancy Disability Leave. She is 23 1 entitled to up to four months. And, like family leave, 2 that can be -- she can require it to be done on an 3 incremental basis. 4 Now, there's another wrinkle with Pregnancy 5 Disability Leave. The statute also says, if a doctor 6 certifies that a transfer is medically advisable, and 7 there is a position that's available, meaning you don't 8 have to kick somebody else out of it or create a 9 position, the woman has a right to a transfer into 10 another position that better accommodates her 11 condition. 12 The employer must accommodate the condition by 13 transferring her into another position if such a 14 position is reasonably available. 15 Q. But since her condition will -- hopefully she 16 comes out of it all right; her condition is not 17 permanent. Then what happens afterwards, once the baby 18 comes and she recovers and she's back? Does she go 19 back to her former position or does she stay in the 20 transfer position? 21 A. Once the condition that gives rise to the 22 right to leave is gone, then the right to the transfer 23 ends and it's up to the employer to decide whether she 24 stays there, if that works, or goes back to the other 25 job. 24 1 Now, she does have a right -- if there's a 2 difference in benefits she's going to have to go back 3 to the other job, because they have a right to 4 reinstatement, which means they can't suffer a loss as 5 a result of the pregnancy. 6 Q. What if the position we have available is a 7 lesser-paying position? Do you have to pay their 8 current salary or do you pay the salary -- 9 A. No. If it's a transfer, you pay them at the 10 salary they are going into. But they have a right to 11 go back to where they were before if they don't want to 12 stay in that one. 13 There's also -- kind of assumed in what I said 14 before, but we also should make clear that there is a 15 right to reinstatement under the California Family 16 Rights Act and the F.M.L.A. The whole purpose of the 17 statutes was to allow people to take this time off 18 without penalty. So if you take your 12 weeks of 19 Family Medical Leave, the employer must take you back. 20 Now, if there has been a downturn and jobs 21 have been eliminated, the job's not there anymore, 22 perhaps not. But as a general rule, you must take back 23 somebody who went out on F.M.L.A., and also somebody 24 who went out on Pregnancy Disability Leave. 25 Now, actually I forgot to mention something 25 1 with F.M.L.A. that someone asked about, and that's a 2 "key employee." 3 There is a right to return for everybody, 4 unless you are a key employee. Now I'm switching back 5 to F.M.L.A. And a key employee is someone who is among 6 the top ten percent in salary within 75 miles, and the 7 absence of that person would create a severe disruption 8 for the employer. 9 And in order to bar this person from returning 10 you must give this person notice when they request the 11 leave that they fall into this category. And then if 12 they do, and you decide that it's going to cause a 13 grievous economic injury, you must then allow them to 14 come back before you let them go. 15 Now we'll switch gears back to Pregnancy 16 Disability Leave. 17 The employee is entitled to up to four months 18 off. It can be on an incremental basis, just like 19 F.M.L.A. She has a right to return. 20 But there's this added wrinkle under Pregnancy 21 Disability Leave that there is a right to transfer if 22 the doctor certifies that it is medically advisable and 23 there is a position available. 24 At the end of the transfer, or at the end of 25 the leave period, there is a right to return. 26 1 Four months means four of the number of days 2 that the person would ordinarily work within those 3 months. So if we have someone who is a full-time 4 employee, works five 8-hour days a week, four months 5 means 88 eight-hour days. 6 That's in the regulation. So if you have some 7 portion of that, you just do the portion. So if 8 somebody is working four hours a day, they get half of 9 that amount of time. 10 Now, with respect to pregnancy leave, 11 employers may require the use of sick pay; may not 12 require the use of vacation, but employees may use 13 vacation if they wish to do so to pay for it. 14 Now, let's move to our form, the one-page 15 insert that is printed front and back. This is a 16 sample that the U.S. Department of Labor has developed 17 for employers to use in administering F.M.L.A. leave. 18 You are not required to use it. You can develop your 19 own version of it if you wish. 20 But it does everything that you need to do in 21 administering leave, so I just want to spend a couple 22 minutes going through the way the form is laid out and 23 how we would deal practically with somebody who wants 24 time off. 25 You have somebody who comes in and says, "My 27 1 mother is seriously ill, I need to be with her for a 2 period of time." We know we have a possible F.M.L.A. 3 situation, and now there is a requirement, actually, 4 that we respond to the request. You must respond to it 5 in writing. You would want to do so anyway to protect 6 the employer's interests. So let's look at how we 7 would document it. 8 You see that this is addressed to the 9 employee, if you look up at the top of the first page. 10 It is the employer who makes the decision about whether 11 it is F.M.L.A. leave or not. 12 Now, if you make the wrong decision, you can 13 open yourself up to a lawsuit, but at least in the 14 first instance it is the employer that makes the 15 decision. 16 So you have received a request. Now you are 17 responding to the employee and you're setting out the 18 conditions of the leave. 19 So you give the date, and there are things 20 that are triggered by the request in terms of your 21 response, so it's important to document the date. Then 22 you identify the particular condition that has given 23 rise to the possible right to leave. And then you set 24 out the period of time within which the person is going 25 to be gone, because as I mentioned earlier, as a 28 1 general matter, employers can impose a notice 2 requirement. 3 So you can have the employee tell you for what 4 period of time they are planning to take the leave. If 5 it's not possible for them to predict it, then you are 6 stuck with the amount of notice that they can give. 7 But you can at least start out by insisting on notice 8 and you can get that specified. 9 Then the form describes the employee's right 10 to leave. 11 And then, the next line down here gives the 12 employer's response to the request. You are or are not 13 eligible. 14 If the employee is seeking leave for a 15 health-related condition of their own or of a family 16 member, you should not say, "Not eligible based on the 17 condition" unless you have a doctor's certificate 18 telling you that you are right. 19 If the question is, do they have enough hours, 20 do they have the 12 months in, then you can make that 21 decision based on your payroll records. But you don't 22 want to make a medical decision yourself. If you are 23 going to deny it to somebody because there is no 24 serious health condition involved, you want to have 25 medical certification. 29 1 If it's the employee's own health condition 2 and they give you a doctor's note and you are not 3 satisfied with it, you can require them at your expense 4 to go to another doctor. If that doctor disagrees, 5 then you require a third opinion, and that one is going 6 to be binding on both of you. 7 Now, I have a suspicion that it hardly ever 8 winds up being worth it to go through that process. I 9 have never yet found anybody who actually challenged 10 the employee's doctor certification, but the right is 11 there. 12 And you certainly don't want to be telling 13 somebody that they are not eligible based on your 14 assessment of the medical condition. 15 All right. So we've told them whether they 16 are or not. And then you tell them if it's being 17 counted against the F.M.L.A. And if you don't tell 18 them it's being counted against the F.M.L.A., you can't 19 later decide, unless the circumstances change, you 20 can't later decide that it was F.M.L.A. 21 So if somebody comes in and says, "I need next 22 week off," and you don't inquire any further and they 23 take the time off, and then you learn later that it was 24 because of a medical condition, it's too late to charge 25 against the F.M.L.A. So you want to make sure that you 30 1 got that part documented. 2 If you're going to get into medical 3 certification, there's Item No. 3 provides for the 4 possibility of that. 5 And then the decision about what's going to 6 happen to the paid leave that is available based upon 7 the rules that I set out for you. 8 Then we go over onto the back. During the 12 9 weeks of F.M.L.A. leave, the employee is entitled to 10 keep health benefits in place. The employer must pay 11 for it. 12 Now, often the employee is paying part of the 13 health premium. And they are going to be gone, and at 14 least part of the time they are probably not going to 15 have pay coming to them, so you are not going to have 16 something to deduct their contribution from. 17 This is the place in which you set out the 18 arrangements that you've made to collect their 19 contributions to the health benefits. If they don't 20 come back for 30 days after the leave, you can 21 recapture the amounts that the employer paid towards 22 the health benefits. 23 Q. We get flex money. You can purchase your 24 medical through that. If you're not on payroll, you 25 don't get your flex money, so it would be out of pocket 31 1 and we put you on direct pay. Can we do that? We make 2 them pay directly and we don't reimburse or do anything 3 like that. 4 A. So there is no -- there is basically no 5 employer contribution in your situation, because the 6 money is all out of the employee's paycheck. 7 Q. Exactly. Okay. 8 A. They are able to keep the benefits in place 9 under the same financial impact on them as you had 10 before, and that's fine. 11 Q. How does this relate to catastrophic illness? 12 Like someone diagnosed with cancer, and let's say they 13 are a new employee. They haven't been there 12 months 14 but they are going to have to have chemo and all of the 15 other things that are going to come about. Do you 16 cover them under something else, like do you do 17 Americans with Disabilities Act, or do you do something 18 else to be able to assist them? 19 A. Did everybody hear the question? The question 20 is, what if we have somebody who is not eligible, they 21 haven't met the service requirements of the F.M.L.A., 22 but they have a serious health condition like cancer or 23 something like that. 24 As far as the F.M.L.A. is concerned, they 25 don't have any protection. You can do whatever you 32 1 wish. 2 There is a possibility that they would qualify 3 for the protection of the Disability Discrimination 4 laws, which have been interpreted to require employers 5 to give people time off to deal with their 6 disabilities. 7 It's not defined the same way F.M.L.A. is, so 8 it doesn't tell you 12 weeks, eight weeks, or 9 whatever. It's just a reasonable time. So that would 10 be a possible limit on what the employer could do with 11 such a person. 12 Next, Item 6, we're on the back of the form. 13 You will or will not be required to present a fitness 14 for duty certificate. If somebody's off for some 15 serious health condition of their own, you may have a 16 legitimate concern about whether they will be able to 17 perform their job when they come back. A fitness for 18 duty exam is appropriate in those circumstances. 19 Then the next one deals with the key employee 20 situation that I talked about earlier, and this is the 21 way you would give the key employee notice that they 22 fall into that category. And if you decide while they 23 are gone that their absence will cause substantial and 24 grievous economic injury, then you can require them to 25 come back or to lose their job. If you don't give them 33 1 the notice, then they are entitled to the time off. So 2 if there is a key employee, you give notice here. 3 The next one tells them whether they have to 4 report in. 5 And then the last one deals with 6 recertification if they need additional time off after 7 the period that they have already set forth. 8 So again, this is -- the Department of Labor 9 developed this. It's not required. You can develop 10 your own form. But what this does is to show you how 11 you would deal with the documentation of a leave 12 request to protect the employer from possible problems 13 down the road. 14 Q. The top right-hand side says "Expires 15 6/30/02." 16 A. I would suspect what happened is that I 17 printed out the copy that I had downloaded to my hard 18 drive a couple of years ago. But thank you for 19 pointing that out, because when I go back I am going to 20 see if there is a new version of Form 381. 21 Q. If they're on a Workers' Comp and we put them 22 on F.M.L.A., do we still have to send a form like this 23 out to them? If we don't actually send them an 24 F.M.L.A. package and we just tell them that we are 25 putting them on F.M.L.A.? 34 1 A. So we have somebody who is injured at work and 2 goes off because of the injury at work. 3 Q. Right. 4 A. And you want to treat that as F.M.L.A. 5 leave, which you are entitled to do. All you need to 6 do is give them written notice. That's all that the 7 law requires. 8 Now, if you have a -- you said F.M.L.A. 9 package, or something like that? If you have a 10 standard way that you are dealing with Family Medical 11 Leave, you should probably use the same method so that 12 you're not accused of treating somebody who is out on 13 an industrial injury differently than everybody else. 14 Because that can provoke its own liability concerns. 15 So I would say the way you should -- the 16 requirement is just document it, but I think you should 17 use the same procedure for everybody that you are going 18 to put on F.M.L.A. 19 Q. If someone requests a leave, and you send them 20 an F.M.L.A. package, and we know that they're sick, 21 maybe going into the hospital, but they never return 22 the package to you, or they don't return the request 23 form, do we still have to treat them as if they are on 24 F.M.L.A.? 25 A. Right. You see, there is no requirement under 35 1 the law that the employee document the request. The 2 documentation requirements are all on the employer's 3 side. 4 So if you get notice that somebody is taking 5 time off for a reason that's covered by the F.M.L.A.; 6 F.M.L.A. applies. And then you want to document it 7 yourself. Now, if you don't get it back, at least you 8 have your copy of what you sent them. 9 Q. If you have no record from the doctor, you 10 have nothing to really substantiate this medical 11 condition -- we've had that where people will say -- 12 A. Somebody comes in and they say, I am going 13 out -- do they say it's for illness or not? 14 Q. Yes, they say it's for illness. 15 A. If they come in and say it's for illness, you 16 have the right to seek certification. If they don't 17 give you the medical certification, it doesn't qualify 18 as F.M.L.A. 19 Let's move on, then, to the paid family leave 20 and state disability part of it, which is down at the 21 bottom of the third page of your handout. 22 We have a State Disability Insurance program 23 which pays people certain benefit amounts over a set 24 period of time if they are themselves disabled. That's 25 been in place for a long time. 36 1 What has happened this year is that the state 2 has extended this program to cover family leave. So if 3 somebody needs to take time off to care for a seriously 4 ill child, spouse, parent, or domestic partner -- so 5 this program covers domestic partners. The C.F.R.A. 6 entitlement only kicks in on January 1. But this 7 benefit part starts on July 1 of this year. 8 Employers have already been deducting the -- 9 this is all funded by employee contributions, and those 10 contributions have been deducted starting as of January 11 1 of this year. The benefits become available on July 12 1, and the benefits will amount to about 55 percent of 13 the lost wages, from a minimum of $50 up to a maximum 14 of $728. 15 As with state disability, there is a seven-day 16 waiting period. So it's only on the eighth day that 17 the person actually gets money. The benefits are paid 18 for up to six weeks over 12 months. 19 Now it's important -- this covers all 20 employers and all employees, so it's important to 21 understand that this program does not confer a right to 22 time off. So if the employer doesn't have 50 23 employees, and the employee comes and says, "I need 24 time off for baby bonding," the employer can say, "No, 25 you may not take the time off," and then if they take 37 1 the time off, the employer may fire them. So this is a 2 matter of the relationship between the employee and the 3 employer. 4 However, that employee, provided they are 5 otherwise eligible under the program, is entitled to up 6 to six weeks of this 55-percent-of-wages pay to cover 7 that time that they are attending to baby bonding. 8 So it is an insurance benefit, just like 9 S.D.I. It is not tied to an employment right. 10 Q. Would you explain the sentence where it says, 11 "To receive benefits, the employee must use up to two 12 weeks of paid leave benefits"? 13 A. The employer has the right to -- well, the 14 E.D.D. has the right to insist that before they pay, 15 the employee must use paid time that is available up to 16 the amount of two weeks. If somebody has accumulated a 17 whole lot, they only need to use that two weeks. 18 If they don't have any time available, that's 19 confusing. If there's no time available, they don't 20 have to. They're eligible for it immediately. 21 Q. This is kind of going back to the F.M.L.A. 22 issue. A doctor certification -- all the doctor has to 23 certify is that they have a serious health issue? 24 A. Right. 25 Q. We don't have to know anything else? 38 1 A. You don't want to know the rest, because you 2 have privacy issues, and you have concerns about the 3 way the disability laws would interact with it. That's 4 all you want. 5 So let's go to the last page, where a lot of 6 confusion arises when we get Pregnancy Disability Leave 7 intersecting with Family Leave, and I hope that I've 8 made it clear in this little chart I have down at the 9 bottom. 10 The rules are the following: Pregnancy 11 Disability Leave is not -- is separate from California 12 Family Rights Act leave. The two can never overlap. 13 However, pregnancy-related conditions can constitute a 14 serious health condition under the federal F.M.L.A. 15 And so Pregnancy Disability Leave and federal 16 F.M.L.A. can run together, and during any 12 weeks of 17 F.M.L.A. leave, the employer must keep the health 18 benefits in place. 19 So what you have on the chart is, the woman 20 becomes pregnant, and then I've set out the timing of 21 the P.D.L. based upon what I have been told about what 22 normally happens. 23 The doctor will certify that the woman is 24 disabled by pregnancy for approximately three and a 25 half months before the birth. Because it's only 39 1 "disabled by pregnancy" that triggers the right. 2 Now, this could be, actually, sporadic over 3 the entire length of the pregnancy; if there's severe 4 morning sickness, if there's time off for prenatal 5 care, or if the nature of the pregnancy is such that 6 the woman can't perform her job during the whole length 7 of the pregnancy. So it may actually get used up 8 before the birth of the baby. 9 But as I understand it, in a normal situation, 10 the doctor will certify that for the three and a half 11 months leading up to the birth of the baby the woman is 12 disabled by pregnancy. So that gives us three and a 13 half out of the four months of P.D.L. leading up to the 14 birth of the baby. 15 F.M.L.A., we will assume for the purposes of 16 this, applies to the situation created by the 17 pregnancy; qualifies as a serious health condition 18 under F.M.L.A. 19 And so we've run the 12 weeks of F.M.L.A. 20 concurrently with the first 12 weeks of the P.D.L. 21 leave. The F.M.L.A. time is then all gone, the federal 22 12 weeks. During those 12 weeks, the health benefits 23 stay in place. But the right to further health 24 benefits ends at the end of the F.M.L.A. time. 25 Then we have the birth of the baby, and then 40 1 we have two more weeks, half a month, of P.D.L. leave, 2 because the woman remains disabled as a result of 3 childbirth and any related conditions. 4 Now, again, in the particular situation, it 5 may be different. There may be complications that 6 extend much further. And she is entitled to the time 7 off until the four months are used up. 8 But I have just assumed that we have that half 9 month left. So at the end of that half month we have 10 not used any California Family Rights Act time because 11 pregnancy is excluded from C.F.R.A. So the entire 12 12 weeks of C.F.R.A. time remains available for baby 13 bonding. So we run the C.F.R.A. leave from the two 14 weeks after birth until the 12 weeks are used up. 15 The green bars up at the top relate to the 16 possibility of getting compensation under the state 17 insurance programs run by the E.D.D. 18 S.D.I., State Disability, if the woman's 19 pregnancy is such that she meets the definition of 20 "disabled" under S.D.I., she is entitled to S.D.I. 21 benefits. 22 And according to the E.D.D. website, normally 23 they will pay for four weeks before childbirth and up 24 to six weeks after. But it depends upon the actual 25 condition and the certification that is made to the 41 1 E.D.D. But I've used their example to show the length 2 of the S.D.I. benefits. And then at that point the 3 paid family leave kicks in for up to six weeks. 4 The rule is, for paid family leave you must -- 5 it's on the eighth day that you get a benefit, but 6 there was an amendment at the beginning of this year 7 which says if you've taken S.D.I., the waiting period 8 is waived for the P.F.L. part. That is why they 9 actually run together here. So we have up to the 10 combined amount for benefits coming from E.D.D. or 11 pregnancy. 12 There you have it. We made it to 13 9:00 o'clock. So questions? And if anybody has to 14 leave, that's fine. 15 Q. If you require someone to take their paid time 16 off, and it's the time off when they are on F.M.L.A., 17 say, on this chart, and they have at least 12 weeks, so 18 they couldn't get paid for State Disability until after 19 they finish using their paid time off? 20 A. On the paid Family Leave part? 21 Q. Yes. 22 A. They must use up to two weeks of their pay. 23 And if you're getting pay you are not qualified for the 24 program. 25 Q. If it's paid time off, we only have to require 42 1 them to use two weeks, we can't require them to use 2 more? 3 A. No, the employer can require them to use the 4 whole amount. This is an E.D.D. requirement. In order 5 to be eligible for the benefit program you must use up 6 to two weeks of your vacation to supplement your pay 7 during that time. 8 Q. So if we require them to use everything, they 9 cannot collect disability until after they're not -- 10 A. No, no. Well -- 11 Q. -- being paid? 12 A. I don't know the answer to that. I think that 13 they can, but I'm not a hundred percent sure. I think 14 it's just two weeks. 15 Q. I have an employee who was off on F.M.L.A. and 16 P.D.L. concurrently, and we paid for benefits during 17 F.M.L.A. Do you think they are eligible to take 18 C.F.R.A. afterwards? 19 A. No. The C.F.R.A. specifically says that if 20 you have used -- if you had the health benefit under 21 F.M.L.A., you don't -- that doesn't kick back in. So 22 it's only 12 weeks of health benefits per 12 months. 23 Q. I'm going to lay out a weird scenario. Under 24 P.D.L. you have an employee, and your doctor says that 25 they can't do the position that they're currently in. 43 1 You don't have a position, or they don't want to go to 2 the position you have. 3 Can you be forced to keep them in their 4 position at a reduced schedule or reduced workload 5 or -- 6 A. It can be, well, reduced schedule, yes. 7 Because that's part of the leave. The time that 8 they're not working counts towards the leave. Reduced 9 duties, no. 10 Q. Okay. That's what I wanted to get to. Thank 11 you. 12 A. All right. 13 Q. At the end of the 12 weeks on F.M.L.A., can 14 you terminate someone even if they're on Workers' Comp? 15 A. No. That's a whole new -- the Workers' Comp 16 thing, F.M.L.A. doesn't change Workers' Comp. For 17 Workers' Comp, you should wait until they are permanent 18 and stationary generally, but that is a Workers' Comp 19 issue, not an F.M.L.A. issue. 20 Anything else? 21 Q. One more. This is kind of an unusual one, but 22 it came up in the County. A domestic partner situation 23 in which a domestic partner takes off the 12 weeks of 24 C.F.R.A. Would he then, because it's not covered under 25 F.M.L.A., is he then also entitled to his 12 weeks of 44 1 F.M.L.A. for his own -- 2 A. I think probably so. 3 Q. I think so, too. 4 A. I think that's right. I had not even thought 5 of that, but it has to be true, because it's a federal 6 statute which doesn't depend upon the state rules. 7 Q. So he has -- 8 A. He has his own time. 9 Q. -- more coverage, then? 10 A. I think that's true. Interesting point. 11 And there was another question? 12 Q. Do they accrue benefits while they are on 13 F.M.L.A.? 14 A. They who? 15 Q. If the employee is on F.M.L.A., does the 16 employer have to accrue their benefits, like for 17 seniority leave? 18 A. No, only if you do it for other people who are 19 out on leave. And that's usually triggered by pay. 20 So, no. 21 Q. We had a Workers' Comp, we initially thought 22 it was Workers' Comp, he got an F.M.L.A. packet and 23 turned it in. Doctors determined it's not Workers' 24 Comp, it's his own injury. Do I start a new F.M.L.A. 25 period? 45 1 A. No. 2 Q. It can still continue? 3 A. It's the same health condition, so you are all 4 set. 5 Anything else? 6 Q. There are no forms like the F.M.L.A. form for 7 C.F.R.A., are there? 8 A. I haven't seen any. 9 Q. For requesting C.F.R.A. time? 10 A. Right. Except for the pregnancy part, it's 11 the same, but I haven't seen any that the state 12 instituted. So you should develop your own. 13 Actually, that's a good point, because as we 14 move into next year and we have further divergence 15 between the two, this probably would not do the trick 16 for a California employer. Because it doesn't refer, 17 for example, to domestic partners, so you are going to 18 want to adapt the form to our situation. 19 Q. If the employee has a different health 20 condition later and they want to use their 12 weeks, 21 they can't -- 22 A. That's it. It's 12 weeks. It's not however 23 long it takes to deal with the condition. 24 Thank you all very much for coming. We are 25 only a phone call or e-mail away if you have questions 46 1 when you get back to the office. 2 And we'll see on you July 7, I hope. 3 (Proceedings were concluded.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47