Seyfarth Synopsis: Employers are usually mindful of the many laws governing employee medical leaves and how they interact. But what about accommodation for non-medically necessary leaves? This post discusses the basics of employee leaves for elective medical procedures.

California employers who administer employee leave laws navigate a complicated labyrinth. Employers must consider interactions among federal

Seyfarth Synopsis: Many employers have “no fault” attendance policies in place to manage employee absenteeism.  Are these policies putting California employers on shaky ground? Read on….

“No fault” attendance policies are one popular method among employers to, with consistency, counsel, discipline and, in some instances, terminate employees who rack up excessive absences.  Under these policies,

By Colleen Regan

New guidance on how to comply with the California Family Rights Act (CFRA) is nigh. 

On January 13, 2015, the California Fair Employment & Housing Council approved revised regulations interpreting the CFRA, attached here. Procedurally, the regulations now go to the Office of Administrative Law (OAL) for additional consideration and eventual

By Colleen M. Regan

From the promontory of the first full week in January, we look out over the California employment law landscape and offer our fearless predictions for the coming year.

  1. State enforcement agencies are on the prowl. Employers are increasingly finding themselves the targets of California enforcement agencies, particularly the Department of Fair

By: Lindsay Fitch

Just when you thought you finally understood employee rights and employer obligations under the Family and Medical Leave Act (“FMLA”), you realize that you are in California, where employee privacy rights loom large and the California Family Rights Act (“CFRA”) also comes into play.  Although both laws are intended for the same purposes—to provide employees of larger employers with protected time off for various medical conditions and family situations—the CFRA tightens the reins on the information available to the employer.  Of course you want to give your employees what they need, but you also want to make sure the request is legitimate. 

So, as a California employer, what are you entitled to ask your employee about the need for CFRA leave?  Far less than under the FMLA, it turns out.  You can ask: 

        Is the employee qualified?  Under both the FMLA and CFRA, employees are qualified for leave when they have a serious health condition or when they need to care for a family member with a verified serious health condition.  A “serious health condition” is an illness, injury, impairment or physical or mental condition that involves one of the following: 

  •       Hospital care
  •      Absence (incapacity) plus treatment  
  •      Chronic conditions requiring treatment
  •      Permanent/long term conditions requiring supervision
  •      Multiple treatments for certain (non-chronic) conditions
  •      Pregnancy (a serious health condition under FMLA, but not under CFRA) 

        How Should I Know?  I’m Not a Doctor.  Fortunately, you can require a medical certification to verify the serious health condition, which must include some specific information to be sufficient.
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Employers usually reserve the right to approve in advance when their employees can schedule requested vacation time.  But can an employer with a garden-variety vacation/PTO policy (i.e., non-union, non-ERISA) ever require employees to use accrued vacation or PTO for an otherwise unpaid absence from work? 

Consider the following commonly occurring scenarios: 

1.  Sally needs to take a leave of absence to care for her ailing father. 

2.  Mike needs to take a leave of absence to deal with his own disabling medical condition. 

3.  Pregnant employee, Marcia, just found out she is ordered to bed rest for the remainder of her pregnancy. 

4.  Frank announces his plan to retire.  Then his supervisor makes her own announcement: Frank must use his vacation now, before his resignation is effective. 

5.  When the company closes for the last week of the year, all employees must use their vacation or PTO time. 

Remember the Rules:

Contrary to what many employees believe, vacation or PTO is not an entitlement.  It is a matter of agreement between the employer and the employee.  So, the accrual and terms of use can generally be subject to whatever reasonable restrictions and requirements the employer’s policy provides.  The key to validity here is the reasonableness of the restrictions. 

Reasonable restrictions can be things like:

✓     Only full-time employees are eligible for vacation
✓    
No one is eligible to accrue vacation until completing 90 days of employment
✓    
Vacation can be taken in minimum increments of, say, 4 hours or 1 day 
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