This is one of the most common scenarios. Yet, most employers fail to address physician notes or requests for leave by employees that are legally compliant with all potential federal and state laws that may apply. Given the lack of information initially provided, as is the case here and is typically the case, the onus is on the employer to abide by all potential laws the employee may be eligible for leave. These include:
- Federal and state family and medical leave laws, the Federal Family and Medical Leave (FMLA) and California’s Family Rights Act (CFRA) that generally applies to 50 or more employees;
- Federal and state disability laws, the Federal Americans with Disabilities Act (“ADA”) that generally applies to fifteen or more employees, and California’s Fair Employment Housing Act, that generally applies to five or more employees;
- Federal military leave laws, The Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA), that generally applies to employers of any size;
- California Workers’ Compensation Act, (“WCA”) that generally applies to 1 or more employees;
- California’s Pregnancy Disability Leave Law (“PDLL”) that generally applies to five or more employees;
- California’s Organ Donation Leave (“ODL”) and Bone Marrow Leave (“BML”) that generally apply to 15 or more employees;
- California’s School Activities Leave (“SAL”) and Domestic Abuse/ Sexual Assault/Stalking Leave, that generally apply to 25 or more employees;
- California’s School Appearance Leave, Jury Duty/Witness Leave, Victims of Crime Leave or California’s Voting Leave that apply to all California employers;
- California’s Civil Air Patrol leave, that generally applies to 10 or more employees;
- California’s Volunteer Firefighting, Reserve Peace Officer, and Emergency Rescue Personnel Leave, that generally applies to employers with 50 or more employees.
- California’s paid sick leave law, the Healthy Workplaces, Healthy Families Act of 2014, that generally applies to all California employers, with limited specified exceptions.
After determining all of the possible leave laws that cover your Company, then each law must be analyzed to determine if the employee is eligible to even qualify for the leave. Some of the federal and state laws run concurrently and others do not. In addition to legal compliance, any Company policies addressing leaves must also be followed by the employer.
Since most of the laws must allow the employee sufficient time to provide the requested information, employers typically must provisionally grant leave until the employee provides the required information. Since you are a California employer, you are likely covered under the Healthy Workplaces, Healthy Families Act of 2014. The number of days of paid sick leave the employee is entitled to is determined by reviewing your Company policy, California’s paid sick leave law, and any local ordinance that applies.
The administrative burden of obtaining the necessary documentation from an employee to certify the need for any of the leaves for which the employee may be eligible for is significant. In addition, an employer must track the employee’s time out on leave. This may seem straightforward, however, many of these leaves of absences provide for “intermittent” leave, which allows the employee to take sporadic leaves of absences in increments as small as 30 minutes. Moreover, an employer has to allow the qualified employee to take the protected leave, regardless of the employer’s current business condition. For example, an employer could already have several employees out on other protected leaves of absences, but still would be required to provide a statutory leave of absence to another employee, thereby making management of the workforce extremely difficult, as could be the case in the example here. Finally, each protected leave of absence brings with it a potential threat of litigation. If an employee is terminated or disciplined in proximity to a recent request or taking of a leave of absence, there is a significant risk of a lawsuit claiming retaliation or wrongful termination.