MAKING ENDS MEET WHEN YOU TAKE OFF WORK FOR FAMILY HEALTH CRISIS

You never know when a serious health crisis will arise in your family. Perhaps you are one of many California workers currently helping a family member in his or her fight against cancer. Maybe your spouse is suffering a debilitating illness related to Lyme disease or some other chronic illness. Caring for a loved one who is extremely ill can be quite stressful. In addition to the strain it may place on your personal physical and mental well-being, it can also cause major problems at work.

California, like most other states, has laws regarding family leave and benefits to which you may be entitled if you have to take an extended absence from your job in order to care for an ailing loved one. Such laws may vary, depending on which region of the state in which you happen to work.

Paid family leave facts that may pertain to your situation

Determining whether you’re eligible for family leave can be stressful. That’s because laws are not standard throughout the state. For instance, if you work in San Francisco, you may eligible for additional benefits that workers in other areas are not. Knowing where to turn for support ahead of time may help you avoid a lot of stress. The following list provides facts that may help clarify your particular eligibility issues:

  • In this state, you may able to receive more than half regular wages while on paid family leave, so long as that amount does not exceed $1,173 per week.
  • To collect paid family leave benefits, your situation must fall under an approved category, such as the need to miss work to bond with a newborn infant or adopted child or to care of an immediate family member who is ill.
  • Only certain family members qualify as immediate relatives, such as spouses, children or parents.
  • The type of illness your family member has must also be on the list of approved reasons to collect benefits. In short, a minor sore throat or even the flu typically does not satisfy eligibility requirements.
  • Your own illness generally does not qualify you for paid family leave benefits unless you happen to work in San Francisco.

Family medical leave laws are often complex and the last thing you need while caring for an ill loved one is to have to battle the system just to get the benefits you need to help make ends meet at home while you’re absent from work. Knowing what resources are available to help you simplify the process may prevent stress overload.

YOUR PREGNANCY SHOULDN’T LAND YOU IN AN UNEMPLOYMENT LINE

Are you one of many California mothers-to-be who feels as though she has waited a lifetime to conceive a child? No wonder when you learned of your expected bundle of joy, you wanted to rush right out and share your good news with all your friends, families and coworkers. Since you work in an office, you weren’t worried in the least that your pregnancy might somehow impede your ability to do your job.

You simply figured you’d get up and stretch your legs as needed as the months wore on and you neared your due date. In fact, you and your spouse already agreed you would work right up until your baby arrived. You had it all planned and were excited and eagerly anticipating the months ahead, that is, until  you told your boss you were pregnant and lost your job a couple weeks later.

There are laws against wrongful job termination

Like most states, employers in California may fire people at will. That does not give them free license to unlawfully terminate your position, however. There are several types of issues that may signify unlawful termination in the workplace, which are highlighted in the following list:

  • If you believe your boss fired you as a form of discrimination or harassment, you may have grounds to file an official unlawful termination complaint.
  • If you recently filed a complaint against your employer and were terminated in retaliation, you definitely have reason to further investigate the matter.
  • If you were working under a signed contract or legally enforceable verbal agreement, your employer can not violate those terms.
  • Your employer may also not violate existing state or federal labor laws.

In addition to causing you emotional trauma, your sudden and unexpected termination from work may have placed undue financial hardship on your growing family as well. It’s not uncommon nowadays for both spouses to work full time, just to make ends meet. Suddenly losing an entire income may take you to the brink of serious financial crisis. This is why the law allows you to fight against unfair treatment in the workplace.

How to prepare for action

It’s best to try to remain calm and not directly confront your former boss, no matter how tempting it may be to give him or her a piece of your mind. Instead, you may stand more of a chance for success if you ask an experienced employment law attorney to act on your behalf to request a review of your file and inquire as to the particular reasons for your dismissal. From there, such matters may be addressed in court, if necessary.

DENIED YOUR PROTECTED FAMILY LEAVE? HOLD THEM ACCOUNTABLE

The state of California grants its workers a great deal of rights, some of which are duplicated by or in conflict with existing federal laws. Two Acts that commonly are invoked by employees seeking leaves of absence from work are the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA).

Provisions of both mandate that covered workers at qualified business must be allowed time off work due to illness, either their own or a family member’s, as well as after the adoption or birth of a child.

While that seems fairly basic, it’s surprising how many companies run afoul of state and federal laws regarding employee leave requests. When improperly denied, the employees can appeal their human resources manager’s denials. The companies face legal liabilities and can be fined as a result.

Another way a company can run into trouble with either the CFRA or the FMLA is by retaliating against their employee who exercised his or her legal rights to take a protected leave of absence. Still other employees could face illegal retribution from employers for testifying or providing other information about alleged violations of these leaves of absence laws.

Because these laws can be deliberately misinterpreted to deny workers their legitimate leaves of absence, it may be necessary to take your case to the next level and file litigation against the company that denied you your covered leave.

This is generally a type of law best left to the legal professionals because the similarities of the laws can be confusing to a person unfamiliar with litigating these type of workplace leave violations in court.

Source: CalChamber, “FMLA and CFRA: Family and Medical Leave,” accessed Sep. 01, 2017

A DIFFICULT PREGNANCY SHOULDN’T AFFECT YOUR EMPLOYMENT STATUS

Not everyone has an easy pregnancy, but even a normal pregnancy will affect your employment in some ways. However, the way in which it can’t affect your job is your boss’s reaction. Your employer can’t discriminate against you in any fashion because of your pregnancy.

Your employer may even be required to provide you with certain accommodations during your pregnancy. This could even involve moving you into a different position temporarily. However, you should return to your original position when you return to work after the birth. If you are having a particularly difficult pregnancy, you may need to take time off work in order to deal with the issue. You are entitled to take that time.

What accommodations am I entitled to during my pregnancy?

Reasonable accommodations include those things that help keep you and your unborn child safe and comfortable while you are working. These may include many things, such as one or more of the following:

  • More frequent or longer breaks
  • A chair or stool
  • Less strenuous duties

This is not an exhaustive list of the accommodations you may need or that your employer may provide you. You can discuss other assistance with your employer.

You can get time off for pregnancy issues

As mentioned above, California law provides for something called pregnancy disability leave. If you suffer from a condition during your pregnancy that requires you to be off work, you can take up to four months. Your employer can require you to use your paid sick time first, but can’t require you to use your vacation time. You do not have to be employed for a certain amount of time or work a certain number of hours to use this type of leave.

Whether you receive payment for this time off depends on your employer’s temporary disability policies. In addition, if that policy allows for more than four months, you may take that same amount of time if necessary. You also do not have to take all of the time at once. You may use it to modify your work hours or work week. You may decide to take several days in a row at certain times, or you may take it all at once if you need to do so.

If your employer fails to provide you with reasonable accommodations or attempts to deny you pregnancy disability leave, you may file a complaint. The law affords these rights to you, and if your employer is subject to the laws regarding pregnancy discrimination and disability, you should receive them. If you need help obtaining what you need in order to work while pregnant, it is available.

RESEARCHING, APPLYING AND RECEIVING FAMILY LEAVE BENEFITS

Workers have the right to make the most of life’s great moments, as well as the responsibility to care for their families in times of trouble. In California, workers are eligible to apply for family leave for up to six weeks out of every 12-month period.

Qualifying events for paid family leave include the arrival or adoption of a new child, as well as the need to care for an immediate family member such as a child, spouse, parent, sibling or grandparent.

Family leave applicants require a medical certificate, including the diagnosis and probable period during which care is needed. A physician must also certify if the condition warrants family leave. New parents or adoptive parents may apply for leave within a year of a child’s birth or adoption.

Benefit amounts are calculated by the State Disability Insurance (SDI) program. Family leave benefits are subject to federal income tax, although not to California income tax.

A seven-day waiting period applies to new applicants before benefits may be received. Employers may also require that up to two weeks of vacation time or paid time off (PTO) is used before the benefit period begins.

Workers may not receive paid family leave if they are receiving disability insurance, unemployment insurance or workers’ compensation benefits that exceed their weekly benefit amount.

If an application is denied or reduced, you have the right to an appeal before an Administrative Law Judge (ALJ) or the California Unemployment Insurance Appeals Board. Contact a legal advisor if you have been denied coverage under the Family Medical Leave Act or the California Family Rights Act.

Source: State of California Employment Development Department, “Paid Family Leave (PFL),” accessed June 30, 2017

HELP! MY EMPLOYER TERMINATED ME WHILE I WAS ON FAMILY LEAVE

Workers who are taking a leave under the Family and Medical Leave Act (FMLA) expect that they will have their job waiting for them when they return to work. This isn’t always the way that it happens. Some employers will terminate a worker who is on this type of leave. If you are terminated while on FMLA leave, you should find out if you can file a claim against the employer.

While it is not illegal to fire a worker who is on FMLA leave, it is important that employer ensure that they are firing the worker for a reason that isn’t related to the leave. Employers can’t fire workers because they take FMLA leave.

If the employer has another reason for firing the employee, that reason must be something that would have resulted in the termination if the employee wasn’t on leave. If you opt to file a complaint about the termination while on FMLA leave, it is up to the employer to prove that the termination was lawful.

Poor employee performance, corporate restructuring and a reduction in the workforce are all examples of lawful reasons why an employee might be terminated while on this leave. The employer can’t fire an employee for retaliation or for any discriminatory reason.

If you think that you were fired for an illegal reason while you were on leave, make sure that you explore your options for handling the situation. Reviewing the documentation the employer has regarding the termination is a good place to start if you are trying to decide whether the termination was lawful or not.

Source: Human Resource Executive Online, “Terminating an Employee on FMLA Leave,” accessed June 16, 2017

UNPAID LEAVE IS POSSIBLE FOR CHILDBIRTH AND OTHER INCIDENTS

Employees aren’t robots, so employers shouldn’t expect them to be able to work every shift without having any issues. Things like illnesses, pregnancies, adoptions and sick children come up. This is where the Family and Medical Leave Act comes into the picture.

Workers who are covered under the FMLA can take unpaid time off of work. There are certain qualifications that employees must meet to take the time off and there are limits to this leave. You can take the leave all at once, you can use it intermittently or you can use it to cover a reduced work schedule. Additional restrictions apply for these cases.

The unpaid leave only includes a total of 12 weeks in a 12-month period. It can only be taken for time off for the birth of a child, the adoption of a child, sick leave for the employee, time to care for the employee’s immediate family or the placement of a foster child in the home. Interestingly, employees can’t use the FMLA to care for in-laws.

Only certain employees can use the FMLA coverage. You must have worked for your employer for 12 months prior to needing time off. The location where you work must have 50 employees or there must be that many employees total in a 75-mile radius. You must have worked at least 1,250 hours during the previous 12 months.

If you meet the requirements and your situation falls under a covered area, your employer must provide you with the leave as long as you follow established procedures to get the time off. If you are denied this leave, you might opt to take action against the employer for an FMLA violation.

Source: U.S. Department of Labor, “Wage and Hour Division (WHD): The Family and Medical Leave Act,” accessed May 16, 2017

5 FAQS ON FAMILY LEAVE IN CALIFORNIA

If you struggle to balance work and family caregiving responsibilities, you are not alone. From new parents with infants to older workers with aging parents, caregiving issues are huge for many workers.

What are the options, in California, for helping to manage both your paid employment and caregiving duties?

In this post, we will use a Q & A format to take note of five useful things to know in understanding your options.

How many employers have company-specific policies that allow for paid time off?

Some supportive employers do offer paid family leave to employees to take care of a newborn or other family member. If you work for a progressive employer, in a favorable industry such as tech, the leave may even be several months.

Nationally, however, only about 14 percent of workers have access to paid family leave through employers. Indeed, the majority of workers in the U.S. do not even get personal medical leave under employer-provided insurance policies for temporary disability. Fewer than 40 of employees have such coverage.

Does California law go beyond federal law in providing family leave?

Yes.

Under the federal Family and Medical Leave Act (FMLA), employees who have worked for a certain amount of time for an employer are entitled to take unpaid, job-protected leave for up to 12 weeks upon the birth or adoption of a child, to care for an immediate family member, or for a serious health condition.

In California, a state law called the California Family Rights Act (CFRA) provides similar protections. Like the FMLA, leave under CFRA is unpaid.

CFRA differs from FMLA, however, in how it treats pregnancy. Under the FMLA, pregnancy is classified as a “serious health condition.” Under CFRA, pregnancy is not lumped in with other serious health conditions. Instead, if you are pregnant and work for an employer with five or more employees, CFRA grants you the right to take up to 16 weeks (about four months) of pregnancy disability leave (PDL).

What about paid leave?

As noted earlier, some employers do offer paid leave to allow employees to take on caregiving duties. Most employers, however, do not.

In California, state law provides for a 6-week paid family leave (PFL) program to bond with a new child or take care of a seriously ill family member.

PFL benefits are only partial. They offer eligible workers up to 55 percent of what they were making previously. And they only last for six weeks.

To be sure, that’s better than nothing. But when what you making is cut nearly in half, clearly that’s a serious financial hit.

What if you work part-time or intermittently? Can you still be eligible for PFL?

Yes, it is possible to be eligible for PFL, even if you work intermittently or part-time. But you must be able to show you are unable to keep doing that work due to caregiving duties. You must also show a wage loss.

What about keeping your job when you come back from using family leave?

Under the FMLA, if you who work a company with 50 or more employees, your job is protected while you’re gone on leave.

Last year, Governor Brown vetoed a California law that would have created comparable protections for employees at small businesses with between 20 and 49 employees. This means that, even in California – one of only a handful of states with paid family leave – you can lose your job for using that leave if you work for small employer.

DO YOU KNOW YOUR RIGHTS UNDER FMLA AND CFRA?

Taking care of yourself and your family means that you sometimes need to take time off due to serious illness or injury. In other cases, you deserve time to be with that new baby when he or she comes home. Both federal and state law help protect these rights, which means that you can do what you need to do without jeopardizing your job.

The California Family Rights Act and the federal Family Medical Leave Act both allow employees to take time away from their jobs to care for a serious health condition suffered by themselves or their family members or to bond with their newborn children. Many of the provisions of the two acts overlap, but there are differences. First, if you are planning to ask your employer for leave under FMLA or CFRA, you need to understand what rights each of them provides.

Do I qualify to take time off under CFRA and FMLA?

To qualify for CFRA leave, your employer must meet the following criteria:

  • Private employers: Employ a minimum of 50 people for at least 20 weeks a year in the preceding or current calendar year. Those 50 employees include:
    • Commissioned employees
    • Employees who received no compensation
    • Part-time employees
    • Employees on leave who are expected to return to active employment
  • Public employers: No limitation on a number of employees.

Under CFRA, you must:

  • Be employed for a minimum of 12 months
  • Worked 1,250 hours during the 12 months preceding when you want to take leave
  • Work for an employer with a minimum of 50 people working within 75 miles of your worksite

If you and your employer meet these conditions, you may apply for leave under either FMLA or CFRA.

How much time is available under CFRA and FMLA?

The acts entitle you to a total of 12 weeks within 12 months. How you take the leave is up to you, but it cannot exceed this maximum. One exception for this falls under FMLA, where you may take a total of 20 weeks off if you care for an ill or injured member of the United States Armed Forces.

Any sick and vacation leave you to accumulate during the course of your employment could help offset the fact that you ordinarily do not receive pay during leave under CFRA or FMLA. Your employer must provide you with the position you left or a comparable one (including same pay and benefits) upon your return.

Other rules for you and your employer exist under both acts. Before applying for leave under either act, consult an attorney to be sure that you and your employer qualify and to discover what rights and responsibilities each of you must adhere to before, during and after your leave. Too many people fail to understand leave under the CFRA and FMLA, and disputes often arise. Your attorney can help avoid any disputes or help resolve them if they already occurred.