February 27, 2015

Felicia Reid Quoted in Law360 article “Calif. Family Leave Reforms Won’t Ease Burden On Employers”


Originally published in Law360, February 25, 2014. Posted with permission.

Calif. Family Leave Reforms Won’t Ease Burden On Employers

By Erin Coe

California’s Fair Employment and Housing Council is proposing changes to make the state’s family and medical leave statute more consistent with federal law, but attorneys say businesses operating in California would continue to face greater restrictions, including limits on what employers can ask regarding a worker’s medical condition and how they can restructure their workforce while an employee is on leave.

The council recommended amendments to the California Family Rights Act in February 2014 to bring it more closely in line with the federal Family and Medical Leave Act, and following public comment, its proposal has been under review by the Office of Administrative Law since January. If approved, the proposed amendments would take effect July 1.

The amendments, which target employers with 50 or more workers, clarify that same-sex spouses are covered under the CFRA and that FMLA regulations should apply to CFRA leave as long as the federal law is not inconsistent with the state regulations.

“The amendments are helpful for both employers and employees in that they clarify CFRA rights and responsibilities and take away some of the guesswork,” said Robin Largent, a partner at Carothers DiSante & Freudenberger LLP. “Lack of clarity in recent years has left California employers not knowing whether or not California law follows federal regulations interpreting the FMLA or not and has made administration of leave programs difficult and risky for California and multistate employers covered by both sets of laws.”

But despite the proposed changes, several key differences between federal and California leave regulations would remain, such as California’s stricter stance on what employers can ask regarding a reason for a leave of absence or an employee’s medical condition.

“Employers can require the employee to have a medical condition certified by a doctor, but the scope of what they can ask is much more limited,” said Kristina Launey, managing partner of Seyfarth Shaw LLP’s Sacramento office. “This continues to be a pitfall for employers, especially those out of state that are used to a slightly more liberal FMLA process and are not as aware that in California they basically can’t ask anything related to a worker’s medical condition.”

Another difference is that while pregnancy disability leave runs concurrently with FMLA leave, it’s not covered under the CFRA, allowing for workers in the state to receive up to four months off due to a pregnancy disability, in addition to up to 12 weeks of leave for baby bonding under the California law.

“Employers are going to have to make sure they are tracking workers’ CFRA leave, especially because of the overlap with pregnancy disability leave and how it’s treated under California law versus federal law,” Launey said. “The amendments make fewer differences between CFRA and FMLA, but employers still have to pay close attention to what remains different between the laws.”

The council’s proposed reforms also are expected to impose more restrictions on employers in administrating a leave law that already fails to provide them with much flexibility, according to Felicia Reid, head of Hirschfeld Kraemer LLP’s wage-and-hour practice.

The council proposes a stricter reinstatement guarantee, which would entitle workers on leave to return to work even if their position had been restructured during the leave to accommodate the employee’s absence.

“It’s fairly common that when an employee is gone on leave, the employer shifts the work and realizes it doesn’t need the position anymore,” Reid said. “Employers may think if they have to reorganize and someone on leave is affected, then that’s OK and not a violation of CFRA, but the answer is: It depends. If the employer included the person in the restructuring because he or she was on leave, the employer has discriminated based on CFRA. However, if the reason is independent of the leave and would have been made had the employee not gone on leave, then the employer can deny reinstatement on that ground.”

This proposed change would make it easier for employees to challenge layoffs and restructuring that occurred during a CFRA leave and could lead to additional litigation, according to Reid.

“This clarifies what is OK and what is not in terms of a position elimination, but I think it will fuel disputes over whether a position elimination during an employee absence was valid or not,” she said.

Another proposed CFRA amendment states that employers can reduce exempt employees’ pay for intermittent leave or a reduced work schedule as long as the reduction isn’t inconsistent with the California Labor Code and the California Industrial Welfare Commission’s wage orders. Under that proposed provision, employers would have to pay for intermittent or reduced schedule leave if the employee works partial days and doesn’t have any vacation or sick leave time left, according to Reid.

“That is very different from FMLA, which allows employers to reduce exempt employees’ salary for intermittent leave, even if it involves partial workday absences,” she said. “This would make it more expensive for employers. It would require an employer to pay exempt employees for a whole day of work, even if they are taking leave on a partial-day basis.”

The council also seeks to amend the state law by raising the bar for when an employer can seek a second medical opinion after an employee submits a medical certification in favor of a leave request, according to Reid.

Under the current regulations, an employer can require a second medical opinion if it has any reason to doubt the validity of an employee medical certification, she said. Based on the amendments, an employer couldn’t automatically request a second certification and first would have to establish a “good faith, objective” reason to doubt the certification.

“This is certainly something I would have to counsel my clients on when they are figuring out what they can do when they suspect an employee is abusing leave,” she said.

Employers should be tracking what happens with the proposed amendments to make sure their leave policies and procedures are in compliance with the latest version of CFRA, according to Largent. Otherwise, they could be targeted in litigation.

“The new regulations confirm that CFRA continues to differ from FMLA in some important respects, and California employers large enough to be covered by these laws need to be mindful of these differences,” she said.

Still, the fact that the council wants to adopt federal rules in the wage-and-hour area at all is a huge deal because California usually likes to veer off in its own direction, according to Christopher Olmsted, a shareholder at Ogletree Deakins Nash Smoak & Stewart PC.

“These proposed regulations would help multistate businesses have a higher level of certainty so that when FMLA says one thing and California doesn’t say it’s inconsistent, they can rely on the federal regulations,” he said. “At least in this small corner of employment law, we will be a little more consistent with what’s going on in the rest of the country.”