Leave & Accommodations
Common violations
Sick leave
interference or dENIAL OF lEAVE
Failure to accommodate
No Interactive Process
lACTATION lAWS
School Activities leave
ADA Violations
Accommodations are adjustments to how an employee with a disability or serious health condition, works or the work they do in order to enable the employee to continue to work. This may include adjustments to how an employee works, where an employee works, and/or the tools an employee uses to work. Some common accommodations are as follows:
Leave - time off of work
Adjustment to start and end times for work
Increased or extended breaks
Changes to the work itself
Access to space for pumping/expressing breast milk for lactating mothers
Access to tools or equipment to enable an employee with a disability to do their job
The employer must respond to requests for accommodations that will enable someone with a disability to be able to perform their duties. An employer may not make a blanket statement that the employee cannot return to work unless they can return to full duty without accommodations. Rather, the law requires that an employer engage in an interactive process in determining what appropriate accommodations may be available to help the employee do their job. Great consideration must be given to the employee’s suggestion.
An interactive process should be a back and forth, ongoing conversation between the employer and employee on the accommodations that are needed. The goal is to try to find a reasonable accommodation, that is not overly burdensome on the employer, but makes it possible for the employee to work or work without pain. An example of a reasonable accommodation is a cashier being permitted to use a stool while checking out customers, and/or to take additional rest breaks, because of the cashier’s inability to stand for long periods of time due to a leg injury. The employer may require certification from your doctor regarding appropriate accommodations or what tasks an employee can and cannot do and whether the considered accommodations will solve the issue.
Both California state and federal law provide California employees with many protections when they require accommodations. Leave is time off of work and can be a reasonable accommodation. Some protected areas for leave are as follows:
Serious health condition of a qualifying employee or family member
Pregnancy
Disability
To attend school or child care related activities
Leave for victim of crime or domestic abuse
Under the Family Medical Leave Act (FMLA), an eligible employee may be entitled to take job protected leave from work. Job protected leave is time off work where the employee’s job is protected because the employer must hold the job open for the employee to return to work. A covered employer is one who has at least 50 employees within a 75 mile radius of the work site. A qualified employee must have been employed for the company for 1 year and must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave. Under FMLA an eligible employee may take up to 12 weeks of protected leave for the following reasons:
Care for one’s own serious medical health condition or that of a family member
Birth or adoption of a child
Qualifying exigency related to a spouse, parent, son or daughter on or called to active duty service.
The employee may be required to provide a doctor’s certification, but the process cannot be overly burdensome on the employee. The 12 weeks may be taken continuously (in one 12 week block of time) or may be taken intermittently (separate smaller blocks of time) or on a reduced schedule. The leave is generally unpaid. However, the employer may ask the employee to use acquired sick leave, vacation time, other paid time off or some combination thereof to cover the leave. An employee must give the employer reasonable notice in advance of their need for leave (typically around 30 days); however, under unforeseen circumstances such as an emergency, the advance notice requirements may not apply.
Upon return from leave, an eligible employee must be restored to their original job or equivalent job with the same pay, benefits, and other terms and conditions of employment. An employer may not interfere with, restrain, or deny the exercise of any right under FMLA. An employer also may not discharge or otherwise discriminate or retaliate against a person who has exercised or attempted to exercise their rights under FMLA. FMLA can be complicated; however a Labor & Employment Attorney can assist you in understanding your rights and responsibilities in your specific situation.
The California Family Rights Act (CFRA) is similar to FMLA in that it has similar qualifications and eligibility requirements as well as benefits. It is protected by state law. Some key differences are the CFRA extends the protections of FMLA to same-sex couples, where FMLA does not. CRFA however does not apply exigency to an injured or ill service member who is not a child, parent, or spouse of the employee. FMLA considers pregancy as a serious health condition whereas CFRA does not, and only provides protections from health problems or complications associated with pregnancy, not the pregnancy itself. Leave for pregnancy may however be available under the California Pregnancy Disability Leave.
School Activities Leave grants employees the right to take up to 40 hours a year off to attend their child’s school or child care activities. This law protects the rights of not just parents but also grandparents, foster parents, and guardians. Activities can include parent teacher conferences, dance recitals, sporting events and more. If a parent needs to pick up a child from school or day care because of an emergency or discipline issue, they can under this law. A parent may also take protected time off work to find a school or child care facility for their child. Employees still must provide reasonable advanced notice and may need to provide proof that the time taken off was related to a school or licensed child care provider activity. Up to 8 hours per year may be taken to find a school or licensed child care facility.
Leave laws often include an anti-retaliation requirement that states that an employee may not be treated poorly because they requested or took leave or utilized accommodations. Additionally an employer may not interfere with an employee taking leave. This includes discouraging an employee from or making it unnecessarily difficult to take leave. It also includes disturbing an employee while on leave. Further, an employer may not fail or refuse to promote or train employees who take or request leave. Leave and accommodation law can be complicated. A Labor and Employment Attorney can help you sift through the law, facts, and evidence to determine if you have a claim.
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Laws protecting California Employees From
Leave & Accommodation Violations
There are several laws which protect California employees from leave and accommodations violations. Here are a few:
Title VII of the Civil Rights Act of 1964
Fair Employment and Housing Act (FEHA)
Family Medical Leave Act (FMLA)
Americans with Disabilities Act (ADA)
California Labor Code 230.8
Healthy Workplace Health Families Act
California Family Rights Act
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How Can The Employment Justice Project Help?
There are several ways that the Employment Justice Project can help. Every case is different and while EJP can make no guarantee of results in your specific situation, here are a few examples of the assistance EJP may be able to provide:
Listen
Educate you on your rights and possible claims
Counsel and Advise
Request and review employee file and payroll records for evidence of violations
Review medical documentation
Interview witnesses
Educate your employer on your rights and their responsibilities under the law
Advocate on your behalf
Advocate for reinstatement
Advocate for resolution of your claims
Negotiate recovery of lost wages and penalties
Negotiate terms of settlement or severance agreement
Negotiate a neutral reference
Litigate, if needed and appropriate
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