Law Office of Arkady Itkin
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FMLA/ADA Protection and Lay Offs / Termination

8/24/2014

1 Comment

 
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An employee who exercises his FMLA/CFRA or ADA/FEHA rights due to a qualifying disability or serious medical condition is considered to be in a "protected" class. This means that it is illegal for an employer to treat that employee differently because of his exercise the above workplace disability rights.   

Being "protected" does not mean, however, that an employee is protected from any employment action and enjoys some kind of immunity because of his FMLA or ADA status. For instance, when a lay-off takes place, and employee who is on FMLA or ADA leave is subject to lay-off just like any other employee. It would only be illegal to choose an employee for lay-off because of his FMLA /ADA status.   

The same applies to employment terminations. A disabled employee who engages in some kind of misconduct or violates an employer's policy can be lawfully terminated just like any other employee who never applied for FMLA leave or ADA/FEHA leave or other accommodations. Being in a "protected" class is not a shield against all harm. It's only a legal remedy against being treated differently because you are a member of that class. 
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An Example of an Insufficient Medical NoteĀ 

7/16/2013

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Below is an example of an actual medical note which is likely insufficient in order to put the employer on proper notice of you need for medical leave under FMLA, CFRA, ADA or FEHA. There are two main issues with this medical note:

First, even though it states that the employee has "several medical condition", it doesn't identify any such conditions. It would be helpful to the employer if the doctor who wrote this note was a little more specific about the nature of his patient's condition and the resulting limitations.

The second issue that it doesn't firmly excuse the employee from work for certain dates. "... prevent her from appearing" is not the same as "unable to report to work between (date) and (date).

You should not hesitate to review or have an attorney review the medical note you receive from your doctor, which you plan to transmit to your employer in order to have your medical leave approved, in order to make sure that it is sufficiently specific and complete.
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Reinstatement Under CFRA/FMLA Medical Leave

12/13/2012

 
Leave under FMLA or CFRA shall not be deemed to have granted unless the employer provides the employee ... a guarantee of employment in the same or a comparable position upon the termination of leave. Gov. Code 12945.2(a). It is an unlawful employment practice for an employer, after grating a requested CFRA medical leave, to refuse to honor its guarantee of reinstatement to the same or comparable position at the end of leave, unless the refusal is justified by a number of limited circumstances, the most common of which is lay-offs, which everyone is equally subject to.

When an employer defends against a wrongful termination claim based on FMLA intereference claim, the employer must demonstrate a legitimate reasons to deny reinstatement to the qualified employee, whose leave is about to expire, and who expects to return to work. 

One significant power of FMLA and CFRA laws favoring employees is that intent or motive is irrelevant in bringing claims for FMLA or CFRA violation. As long as the law has been violated, even if it an innocent mistake on the part of the employer, the employer will still be liable for CFRA/FMLA violation. The remedies may include payment of damages, reinstatement to work or both. For more information about your rights under FMLA and CFRA, as well as your disability rights at workplace, please visit our other California Employment Lawyer Blog.

After You Have Exhausted Your FMLA/CFRA Leave Rights

1/9/2010

2 Comments

 
Many disabled employees and their employers are under the mistaken belief that once their FMLA leave is exhausted, they have no right to any other leave and have to come back to work despite their health condition and/or disability. It is not uncommon for California employers to discipline, suspend or even fire employees who are unable to return to work after their FMLA/CFRA leaves expires. This however is often unlawful as it may violate the employer's obligation to engage in interactive process and provide reasonable accommodations to a disabled employee. 

Numerous California cases have held that finite leave may be a reasonable accommodation under the Fair Employment and Housing Act, provided that upon expiration of leave the employee will be able to perform his duties, and finite leave might be all that's necessary to accommodate the employee's medical condition. 

Unfortunately, many employee are not aware of this right and feel both hopeless and helpless after their FMLA leave expires. Extended leave under FEHA is of major help in such situations. 

One common issue that arises under the above circumstances is whether the leave was finite or too indefinite, because the employers have no duty to accommodate an employee or keep his position open while he is on disability of he is expected to be on leave indefinitely.
2 Comments

Pregnancy and PDLL, FMLA and CFRA interception

2/20/2009

 

Under federal law, leave taken for an employee's incapacity due to pregnancy, childbirth or related medical condition is governed by FMLA, just like leave for any other "serious health condition" of an employee. However, the CFRA (California Family Rights Act) expressly excludes an employee's incapacity due to pregnancy, childbirth, or related medical condition. 

Pregnancy disability leaves under the PDLL run concurrently with leave taken under the FMLA.
Thus, if an employee takes 12 weeks of leave due to her pregnancy, childbirth or related medical condition and the employer gives the proper FMLA notices, the employee will have exhausted her annual entitlement to FMLA leave and will have exhausted 12 weeks of the fourt month PDLL leave entitlement. 

Since CFRA doesn't run concurrently with PDLL, CFRA can be taken after PDLL leave. Following a pregnancy disability leave, an employee will still have the right to take a CFRA leave of up to 12 weeks "for reason of the birth of her child, if the child has been born by this date" assuming, of course, that the CFRA leave rights were not exhausted during that year prior to the pregnancy disability leave. 

If the maximum amount of both types of leave is taken, the maximum total leave entitlement will be 4 months plus 12 workweeks (4 months of pregnancy disability leave under the PDLL, of which 12 weeks may also be FMLA leave plus 12 workweeks of CFRA leave). 

An employee is only entitled to use the maximum amount of pregnancy disability leave if she was actually disabled by pregnancy for four months, and is entitled to CFRA leave only if she meets CFRA eligibiltiy rules and has not previously used the CFRA leave for another purpose.

When Your FMLA Leave Expires

10/8/2008

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Many employees suffering from a disability or a particular medical condition qualify for FMLA leave, under which they are entitled to be placed on unpaid leave for up to 12 weeks in a year, assuming that certain FMLA conditions are satisfied. 

However, very few employees are aware that upon expiration of FMLA leave, they might be entitled to additional time off as a reasonable accommodation to their disability / medical condition. Under California law, an employer must engage with an employee in a good faith interactive process to find out if the employee may be provided reasonable accommodation to his or her disability / medical condition at workplace. One of those reasonable accommodations can be extending the employee's leave beyond FMLA leave, unless this extended leave would impose undue hardship on the employer's business. An employer who fails to engage in this interactive process to investigate whether reasonable accommodations can be provided to the disabled / sick employee may be liable for disability discrimination, failure to accommodation and other violations of employment laws in California. 

If you believe that your employer did not fulfill it's obligation under California law and you would like to discuss your situation at workplace, contact San Francisco employment attorney Arkady Itkin for a free, no-obligation consultation.

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What is FMLA (Family Medical Leave Act)?

7/22/2008

 

The federal Family and Medical Leave Act (FMLA) provides job security to an employee who is absent from work because of the employee's own serious health condition or to care for a specified family members with serious health conditions, as well as for the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee. 

Employees eligible for FMLA are entitled to 12 workweeks of leave in a 12-month "leave year." An employee may take FMLA leave for any of the following reasons: (1) the serious health condition that makes the employee unable to perform the essential functions of the position; (2) the serious health condition" of a spouse, child or parent; (3) the birth of a child or to care for such child; or (4) the placement of a child with the employee for adoption or foster care. 

Employers may require medical certification of the existence of a serious health condition. Further, FMLA leave is unpaid unless available paid time off is taken (e.g. vacation, paid sick time or paid personal time off) and/or unless disability beneftis are available. 

At the conclusion of an FMLA leave, the employee must be reinstated to the same or an equivalent job, unless he or she is a "key employee" who is given appropriate notification. An employer must maintain health plan benefits for an employee on FMLA leave on the same basis as if the employee were actively employed; and all benefits, including those that lapsed during the leave, must be restored immediately upon the employee's return to work.

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; arkady@arkadylaw.com
Photo used under Creative Commons from Ernst Moeksis