Medical Leave Questions Are Answered at "Roundtable" Seminar
As part of its monthly "HR Roundtable" series, Carlton DiSante & Freudenberger recently hosted seminars in Los Angeles, Irvine and San Diego to educate HR professionals about handling employee leave issues. The seminars covered the often confusing interplay between the various California and federal leave laws, including the Family and Medical Leave Act ("FMLA"), the California Family Rights Act ("CFRA"), the Pregnancy Disability Leave law ("PDL"), and the new "Kin Care" and "California Paid Family Leave" laws.
The following are a few of the more challenging questions posed by seminar participants:
Elective Surgery
Q: If an employee has elective surgery that is not medically necessary, can that constitute a "serious health condition" entitling the employee to leave under the FMLA or CFRA?
A: "Yes." Neither statute contains an exclusion for elective procedures, such as cosmetic surgery. Thus, so long as the procedure (including the recovery process) involves a course of ongoing medical treatment or "incapacity" that is sufficient to meet the definition of a "serious health condition" the leave rights under the statutes are triggered. It is true, however, that an employer can require up to 30 days' advance notice when the employee has discretion over when the procedure is scheduled.
"Kin Care" Leave
Q: Under California's "Kin care" law (which generally requires that employers authorize the use of up to half of an employee's paid sick leave for the care of sick family member), if an employee gets 10 days a year of paid sick leave and uses 8 of the days for his own illness, would he only have two sick days remaining? Or, if he needed to care for a family member, would the employer be required to give him an extra three days of sick leave so that he can actually use a full five days of sick leave for kin care?
A: The employee would have only two days of paid sick leave left to use. This is because the statute (Labor Code § 233) only applies to paid sick time that is already "accrued" and "available" for use. The statute does not require employers to give extra days of paid sick leave that would not otherwise accrue under the employer's existing policy. Thus, since the employee in the example is only allowed to accrue a maximum of 10 paid sick days per year, the Kin Care law would not give him any additional sick days and he would have only two remaining (regardless of whether he uses them for his own illness or to take care of a family member).
Pregnancy Leave
Q: If a company has a policy that provides for salary continuance for pregnancy disability but not for other temporary disabilities, could it have potential discrimination issues?
A: "Probably Not," but this is a controversial area in which employers should tread carefully. In its famous (some would say "infamous") 1976 decision in General Electric Co. v. v. Gilbert, the United States Supreme Court held that discrimination on the basis of pregnancy is not a form of gender discrimination under Title VII. Rather, according to the Court, it is merely discrimination between pregnant and non-pregnant women. Thus, providing extra benefits for pregnant women -- basically a form of "affirmative action" for pregnant employees -- would not support a Title VII claim of gender discrimination by male employees. California law, on the other hand, expressly equates pregnancy discrimination with gender discrimination. But California law would not apply if, as is usually the case, the company's temporary disability plan is governed by ERISA, which precludes the application of state law to plan benefit decisions.
If you would like to request a copy of the written handout from these seminars, entitled "Medical Leaves: How to Avoid Lawsuits by Navigating the Maze of State and Federal Law," or if you would like information about upcoming seminar topics and dates, send an e-mail request to Cal Labor Law.
Caveat: Reasonable legal minds may differ on many of these issues and you should always consult an attorney about the particular facts and circumstances of a particular situation.