Managing employee leaves of absence can be a complex and often overwhelming process. With multiple state, federal, and local laws governing employee rights to leave, it’s easy to make mistakes that could expose your company to legal risks. Each leave request must be carefully reviewed to ensure compliance with various distinct, yet sometimes overlapping, legal obligations.
In this article, we break down five essential reminders to help you navigate the tricky landscape of leave administration. Whether you are dealing with the federal Family and Medical Leave Act (FMLA), California Pregnancy Disability Leave (PDL), the California Family Rights Act (CFRA), or any other state or local leave laws, these tips will help you avoid common pitfalls and protect your business.
1. Review Each Request Individually
The first step in successfully managing a leave request is to assess it on an individual basis. Different employees may be entitled to different types of leave depending on their eligibility and the reason for their request. For example, an employee who has only worked for you for two months is not eligible for CFRA or FMLA leave, however, if that employee has a certified pregnancy related disability, they are eligible for PDL because there is no length of service requirement.
It’s essential to review the specifics of each request to ensure that you’re meeting your obligations under both state and federal law. This includes providing timely notices and correctly designating the type of leave being taken. Overlooking these requirements can lead to costly mistakes, so a careful review of each case is crucial.
2. Document Everything
When it comes to leave of absence administration, thorough documentation is your best defense. From the moment an employee makes a request that could trigger a leave, you should keep a clear and detailed record of every communication, form, and decision. This documentation will not only help you administer the leave correctly, but also serves as evidence in case of a dispute or audit.
If an employee requests time off for a medical condition that requires a serious surgery, you should document the initial request, your response, and any supporting documents such as medical certifications. Proper documentation helps you follow the correct process for notice, designation, and other leave administration requirements.
3. Understand Your Obligations Regarding Benefits
One area where employers often run into trouble when administering leaves of absence is approaching how to manage employee benefits (i.e. medical, dental, and vision). Under protected leaves such as PDL, FMLA, and CFRA, you are required to continue providing the same benefits—such as health insurance—that the employee had while working. However, benefits do not have to continue during extended leaves under the Fair Employment and Housing Act (FEHA), unless specified otherwise by company policy or agreements.
Where it also gets tricky is employees are still responsible for paying their portion of premiums, just as they would be if they were working, even though while on leave they are not receiving paychecks because they are not working. Typically, their health insurance premiums come right out of their paycheck—so before the employee takes their leave, it’s important to develop a plan for how you’ll collect their premium payments. Contrary to what might be a customary practice, it is likely an unlawful deduction to take a balloon payment when they return to work for all past due health premiums.
Failing to continue benefits as required or mishandling premium payments could expose your company to legal risks—so it is definitely worth confirming if you’re abiding by the applicable leave law, and California wage and hour rules.
4. Avoid Retaliation Claims
Employees who take or attempt to take protected leave are shielded from retaliation under both state and federal law. This means you cannot terminate, demote, or otherwise discipline an employee for taking leave or exercising their rights.
One of the best ways to avoid a retaliation claim is to ensure that your discipline process is consistent and well-documented. If you need to take an adverse action against an employee who is on leave or has recently returned from leave, make sure the decision is based on legitimate, documented performance issues and is consistent with how you handle other employees in similar situations. It is also important to consult a knowledgeable attorney to avoid the appearance of retaliation.
5. Be Aware of Overlapping Leave Laws
Perhaps one of the most complicated aspects of leave administration is determining what leave law applies, and whether it overlaps with other forms of leave. Certain leave laws can run concurrently, meaning an employee may exhaust multiple types of leave simultaneously. For example, PDL and FMLA run concurrently, as can CFRA and FMLA depending on the circumstances. However, for CFRA and FMLA you need to be looking at not only the reason for the leave (i.e. type of serious health condition), but you also need to be analyzing who they’re requesting the leave for. For example, in 2023 CFRA was amended to allow employees to take leave for a “designated person,” which is, “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” (Cal. Gov. Code 12945.2.) This is an expansive definition, as it is vague on what constitutes someone who has “the equivalent of a family relationship.” For example, an eligible employee in California can take CFRA to care for a neighbor who is undergoing open heart surgery which would drain their CFRA 12-week bucket, but since caring for a designated person such as a neighbor is not a covered family member under FMLA, the employee does not use any of their FMLA time.
Not all leave laws overlap. PDL and CFRA, for instance, cannot and will never be used concurrently. This is because CFRA is not intended for pregnancy-related leaves since the Legislature created the PDL to address and expand rights for expectant mothers. Knowing which laws apply and when they can be used in tandem is crucial for managing employee leave properly.
Conclusion
Managing employee leaves of absence is a complicated, but essential task for California employers. It is a highly litigated area of law, so it’s important to understand your obligations and consult a knowledgeable attorney like those at Cook Brown LLP to navigate you through the process and set you up with proper procedures.
