Leave Management Training Module 1 – Medical

Report
Department of Human Resources
Medical Leave Program
City and County of San Francisco
PART 1:
INTRO TO
MEDICAL
LEAVES
OVERVIEW:
KNOW YOUR LEAVES & BENEFITS
• City Employee Benefits
Employee Handbook, Civil Service Rules, City Charter, MOU
• City Laws & Ordinances
Sick Leave, Parental Pay, CIP, FFWO
• State Laws
CFRA, PDL, FEHA, Kin Care, Organ Donor
• Federal Laws
FMLA, ADA
CCSF ONLY EMPLOYEE BENEFITS
Paid Sick Leave* (SLP)
•
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•
•
13 days per year (104 hours) – for full time employees
Available to regularly scheduled employees
6 Month Waiting Period
130 days (1040 hours) maximum accrual limit
Authorized Use:
• Medical appointments
• Illness
• Bereavement
• Employee, dependent child, parent, spouse,
registered domestic partner or military care
*Employee Handbook pp. 32-33
CCSF ONLY EMPLOYEE BENEFITS
Unpaid Sick Leave* (SLL)
• Available to employees who do
not qualify for paid sick leave
• Appointing Officer has discretion
to approve or deny
• 3 month increments up to one
year
*Civil Service Rule 120, Article IV
CCSF ONLY EMPLOYEE BENEFITS
Family Care Leave* (FML)
•Up to one year of leave for any
FMLA/CFRA qualifying reason
•Extends leave under the federal Family
Medical Leave Act and California Family
Right Act (FMLA/CFRA) beyond 12-weeks
•Available to permanent employees (after
one year of employment) who don’t qualify
for FMLA/CFRA
•Appointing Officer has discretion to approve
*Employee Handbook p. 35
Local Laws
• Paid Parental Leave (PPL)
• Catastrophic Illness Program
(CIP)
• Sick Leave Ordinance (SLO)
• Family Friendly Workplace
Ordinance (FFWO)
Paid Parental Leave
• S.F. Charter, Appendix A, § A8.365 (PPL/PRP)
• Supplements SLP, VAP, FHP, and SDI, PFL, or any pay
available during pregnancy disability or bonding leave
• Full wage replacement benefit
• Available after
• 6 months continuous service, working at least 20
hrs/wk, OR
• 1,040 hours worked within 12 months prior to start of
leave.
• Employee required to exhaust accrued leave, but
• PPL benefit will be offset by any accrued leave the
employee elects not to use, but could have used during
the leave
• Up to 16 weeks, while on any FMLA/CFRA or PDL
qualifying leave
Catastrophic Illness Program
• SF Administrative Code Section 16.9-29A (CIP)
• Donated SLP and VAP hours (to individual or pool) to
benefit catastrophically ill employees and (VAP only for)
employees caring for catastrophically ill family members
• “Catastrophic illness” means life-threatening illness or
injury, as determined by DPH
• Available only to employees who can accrue and use
SLP and VAP (after 6 months employment) and who
have exhausted all leave balances
• Authorized Use
• Catastrophic Illness
• Care for catastrophically ill family member
• Employee must apply for short or long-term disability
benefits, if available/enrolled
Sick Leave Ordinance
• SF Administrative Code Chapter 12W (SLO)
• 1 Hour Sick Leave for every 30 work hours (~ 70
hrs/yr)
• Available after 90 days
• Covers SEIU Misc., Local 21, Local 261 (TEX/AN
Only) and Unrepresented
• Authorized Use
• Medical Appointments
• Illness
• Employee, child, parent, legal guardian, ward
(foster/adoption), sibling, grandchild,
grandparent (plus in loco parentis), spouse,
domestic partner or designated person
Family Friendly Workplace Ordinance
• SF Administrative Code Chapter 12Z (“FFWO”)
• Flexible schedule or predictable work
arrangement
• Available after 6 months
• May deny for a bona fide business reason
• Requires timely written response to request
• Authorized Use
• Contribute to ongoing care as primary person
• Care for child (age 18 ↓), parent (age 65 +) or
person in a family relationship (spouse,
domestic partner, sibling, grandchild or
grandparent, plus in loco parentis)
True or False
• If doctor states that employee needs
sick leave, employer must accept
statement without further inquiry?
State and Federal
Medical Leave Laws
Overview of Medical Leave Laws
•
•
•
•
•
•
Family and Medical Leave Act (FMLA)
California Family Rights Act (CFRA)
Pregnancy Disability Leave (PDL)
Americans with Disabilities Act (ADA)
Fair Employment and Housing Act (FEHA)
Labor Code Provisions
• Workers’ Compensation
• Drug/Alcohol Rehabilitation
• Bone Marrow Donor
• Organ Donor
• Kin Care
Family and Medical Leaves
• Federal and California law permit eligible
employees to take time off for the
employee’s own serious health condition,
to care for a family member with a serious
health condition, for baby bonding and for
certain military-related reasons
• Relevant Laws:
• Family Medical Leave Act (FMLA)
• California Family Rights Act (CFRA)
Family and Medical Leaves (FMLA & CFRA)
• 12 weeks of job protected leave during a rolling 12month period (480 hours based on a 40 hr/wk schedule)
• Covers long-term leaves and intermittent leave
• Available to employees who are:
• Employed 12 months (need not be continuous)
• Worked 1,250 hours during 12 –month period prior to
the leave
• Work at a site where there are at least 50 employees
within a 75-mile radius
• Authorized Use
• Illness
• Care for others
• BOTH LAWS APPLY IN CALIFORNIA !
Family and Medical Leaves (FMLA & CFRA)
• Generally run concurrently
• Exceptions
• CFRA excludes pregnancyrelated disability as a serious
health condition
• CFRA excludes military exigency
leaves
• FMLA excludes domestic partners
FMLA & CFRA: Key Differences
FMLA
CFRA
Pregnancy-Related
Disability = Serious
Health Condition
Covered.
Not covered.
Pregnancy-related
disability is a separate
leave of up to 4 months
Registered Domestic
Partners
Not covered.
Covered.
Qualifying exigency
leave for employee’s or
family member’s military
deployment
Covered. Leave arising
out of the active duty or
impending call to active
duty for foreign
deployment of the
employee, spouse, child
or parent.
Not covered.
Care for ill or injured
service member
Covered. “Next of kin”
allowed 26 weeks w/in a
12 month period.
Only covered for 12
weeks if “next of kin” is a
qualifying family member
under CFRA regs.
Pop Quiz
• Jeff asks for 12 weeks of leave to
care for his registered domestic
partner who is disabled by a highrisk pregnancy. Following the
birth, Jeff ask for an additional 12
weeks of leave for bonding.
• How much leave is Jeff entitled to
receive?
Jeff’s Entitlements
• 12 weeks of CFRA leave to care for the serious
health condition of his registered domestic partner
(the employee’s own pregnancy is excluded under
CFRA, but Jeff is not pregnant here)
• 12 weeks of FMLA leave for bonding with his new
baby (Jeff did not use FMLA to care for his registered
domestic partner because it’s not covered)
• Jeff may be entitled to 24 weeks of protected leave
with the proper certification
• Note: Married City employees must split FMLA bonding leave. Married
City employees and registered domestic partners employed by the
City must split CFRA bonding leave
Reasons for FMLA/CFRA Leave
• An employee may take leave under FMLA and
CFRA for:
• The employee’s own serious health condition
• To care for a child, parent or spouse with a
serious health condition (Includes in loco
parentis. CFRA Only: Domestic Partners)
• For bonding with a newborn, adopted child or
child placed for foster care (within 12 months of
the birth or placement)
• To care for an ill or injured military service
member (FMLA Only: Military Caregiver Leave)
• Because of a qualifying exigency/reason
relating to a close family member’s military
service (FMLA Only)
Serious Health Condition
• A serious health condition is an illness, injury,
impairment or physical or mental condition that
involves:
• Inpatient hospital, hospice or residential medical
facility care OR
• 3 consecutive days of incapacity and ongoing
medical treatment (multiple appointments with a
health care provider, or a single appointment and
follow-up care such as prescription medication) OR
• Occasional incapacity and a regimen of continuing
care (at least two appointments with a health care
provider yearly)
• FMLA Only: Pregnancy (medical appointments,
incapacity, medically required bed rest)
Are you serious?
• Ron takes a leave of absence to help his 73year old father in Reno. His father became
depressed following the death of Ron’s sister.
While in Reno Ron assists with household
chores, drives his father to psychologist
appointments and settles his sister’s estate.
Ron’s father works full time and did not miss
any time from work due to his depression.
After three months Ron returns to work and is
demoted.
• Ron claims his FMLA/CFRA rights have been
violated. Is his father’s condition qualifying?
Dad’s condition could be serious . . . .
• Before the leave Ron should have received notice
of his FMLA/CFRA rights and responsibilities
• Ron should have been asked to provide certification
that his father’s health condition meets the
FMLA/CFRA criteria
• FMLA/CFRA includes chronic conditions that may
cause 3-days or more of incapacity without
treatment
• Dad’s health care provider should decide whether
Ron “needed to care for" his Dad, which
encompasses both physical and psychological care
• Don’t assume or guess FMLA/CFRA eligibility –
request certification from a health care provider
Military Caregiver Leave
Military Caregiver Leave
• FMLA entitles eligible employees to take up to 26
weeks of unpaid leave to care for a covered service
member with a serious injury or illness
• “Caregiver” includes
• Spouse/child/parent of the injured
service
member
• Next of kin of the injured service member
• No age limit on caring for a child who is an injured
or ill service member
• An eligible employee is limited to a combined total of
26 workweeks of leave for any FMLA-qualifying
reason during a single 12-month period
• Note: Not the same as FMLA - Military Exigency Leave
The call of duty
• Jane’s husband just returned from
deployment to Afghanistan with
severe PTSD. She requests a 16week leave of absence to join him at
an in-patient readjustment program in
Washington, D.C. Jane had already
requested 12-weeks of leave for a
knee surgery in six month. How much
leave is Jane entitled to receive?
Jane can get up to 26 weeks of FMLA leave
protections within a 12-month period
• Jane may be entitled to 16 weeks of FMLA
military caregiver leave protections with proper
certification
• CFRA may run concurrent with FMLA military
caregiver leave protections if husband’s PTSD
qualifies as a serious health condition
• Jane may be entitled to 10 weeks of FMLA leave
protections for her own serious health condition to
cover her knee surgery – with proper certification
• Jane runs out of leave protections after 26 weeks,
but there are options for extending her leave,
such as Family Care Leave
Pregnancy Disability Leave (PDL)
Pregnancy Disability Leave (PDL) Overview
• For birth mothers only
• Employee is unable to work due to
pregnancy-related disability, or
• Employee is unable to perform one
or more essential job functions, or
• Employee is unable to perform the
job without undue risk to herself or
others until completion of the
pregnancy
PDL Eligibility
• California’s PDL law applies to all
pregnant employees
• No length of service requirement
(contrast to City PPL with 6-month
service requirement and 20 hr/wk)
• Employer may require medical
certification of disability if required
for other types of leave
PDL Length of Leave
• Up to four months of leave per pregnancy
• Four months = the number of days/hours an
employee would normally work within four
months (693 hours for a 40 hr/wk employee)
• May be taken as continuous leave, or
intermittently, or as a reduced work schedule
• After the four months, an employee may
qualify for additional leave under
• ADA/FEHA if reasonable accommodation
is needed for disability
• CFRA for baby bonding up to 12 weeks
PDL vs. FMLA/CFRA
PDL
Pregnancy
Disability
Covered?
YES. 4 months
(runs concurrent with
FMLA leave)
FMLA
YES. 12 weeks.
CFRA
NO
Pregnancy Leave Only for periods of
Covered?
disability (Includes
prenatal care, severe
morning sickness, doctorordered bed rest,
childbirth, recovery from
childbirth, or any related
medical condition.)
Only for periods of
NO
disability. (Any
period of incapacity
due to pregnancy, or
for prenatal care.)
Baby Bonding
Leave Covered?
YES. 12 weeks
(unless exhausted
during PDL)
NO
YES.
12 weeks
PDL vs. FMLA/CFRA Interplay (Normal Pregnancy)
End
CFRA
End
FMLA
End
PDL
Birth
4.5 Months
Discretionary Leave
PDL & FMLA/CFRA Interplay (Difficult Pregnancy)
End
CFRA
Birth
End
PDL
End
FMLA
7 Months
Your Time is Up
• Ana was hired to a permanent civil service
position. She learned that she was
pregnant shortly after her hire date, and
she was diagnosed with a high-risk
pregnancy. Ana was granted 19 weeks of
leave and then she was released from her
probationary appointment because she
was medically unable to return to work.
She had exhausted her PDL entitlement,
and was still unable to return to work at
the time of her release. Were Ana’s leave
rights violated?
Can Ana have a little more time?
• Always consider extending leave as a
reasonable accommodation for an
employee’s qualifying disability
• Ana’s pregnancy-related disability entitles
her to reasonable workplace
accommodations
• Ana may have been able to return to work
following a reasonable extension of her
leave, but there was no interactive
process to discuss granting her an
accommodation
• Leave extensions must be reasonable
Americans with Disabilities Act (ADA) and Fair
Employment and Housing Act (FEHA) Leave
Americans with Disabilities Act (ADA) and Fair
Employment and Housing Act (FEHA) Leave
• Under the ADA and FEHA, permitting use of accrued
paid leave, or unpaid leave, is a form of reasonable
accommodation when necessary due to an
employee's disability
• The leave must be likely to be effective in allowing the
employee to return to work at the end of the leave,
with or without further accommodation
• Indefinite leaves are not a reasonable accommodation
• If holding the job open is an undue hardship, then
must look for vacant, equivalent positions for which
the employee qualifies before considering separation
Americans with Disabilities Act (ADA) and Fair
Employment and Housing Act (FEHA)
Accommodations
• When an employee can continue to work with a
reasonable accommodation the employee
cannot be forced to take a leave of absence
• Similarly, an employer is not required to
approve leave when an alternative
accommodation would be just as effective at
returning the employee to work or keeping the
employee at work
• Can overlap with FMLA/CFRA leave
• May extend leave beyond 12-week FMLA/CFRA
limits as a reasonable accommodation
Workers’ Compensation Laws
Workers’ Compensation Leave
• California Workers’ Compensation Act provides an
exclusive system of compensation for employees injured
on the job
• A leave of absence may be required when an injured
employee is unable to work due to the injury/illness or
related conditions. The leave may be terminated due to:
• Business necessity
• Permanent and Stationary (P&S)/Maximum Medical
Improvement (MMI) Determination
• An employee who has a work-related injury/illness may
also be covered by:
• FMLA/CFRA leave requirements, where the workrelated injury/illness is a serious health condition
• ADA/FEHA reasonable accommodation requirements
where the work-related illness/injury is a qualifying
disability
We thought you weren’t coming back . . . .
• Tanya is a Water Treatment Operator who severely
injured her neck while moving equipment. She
required multiple surgeries to remove herniated
discs, fuse vertebrae and to insert a metal plate in
her neck.
• She received workers’ compensation benefits. A
QME doctor determined that due to her injuries,
Tanya would not be able to return to work at the
water treatment plant. The Department wrote Tanya
a letter explaining that she would be medically
separated unless she disagreed with the
determination that she is unable to perform the
essential functions of her job or another City job,
with or without reasonable accommodations. Tanya
did not respond and was medically separated.
Have her rights been violated?
Speak up Tanya
• The Department sent Tanya letters
inviting her to engage in discussions
about return to work
• Tanya’s failure to respond is
evidence that she was not interested
in return to work
• If an employee unreasonably refuses
to communicate, the employer may,
under the right circumstances, take
unilateral action
Practice Tips
• Invite employees on long-term leave to
engage in the reasonable accommodation
process to discuss return to work
• Send letters via certified and regular mail,
and via email if possible
• Document conversations about return to
work with employees on leave
• Give employees notice that long-term leave
may lead to medical separation under the
ADA and FEHA
• Employees are responsible for providing
updated contact information for PeopleSoft
records
Alcohol/Drug Rehabilitation
Alcohol and Drug Rehabilitation Leave
• California Labor Code §§ 1025-1028 require
employers to grant employee requests for time
off to participate in alcohol or drug rehabilitation
programs
• Must reasonably accommodate alcohol/drug
rehabilitation, unless an “undue hardship” exist
• Must allow use of accrued sick leave (City
policy requires employees to use leave
accruals)
• Must protect employee’s privacy
• Length of leave must be consistent with
rehabilitation program
• Request verification of program term
Bone Marrow Donor
Organ Donor
Donor Leaves
• California Labor Code §§ 1508-1513
require employers to grant time off for
bone marrow or organ donation
• Time off does not run concurrently with
FMLA/CFRA or other leave
entitlements
• Five paid days for bone marrow donors
• 30 paid days for organ donors
• Leave may be long-term or intermittent
• Employer must maintain group health
insurance
Kin Care
Kin Care Leave
• California Labor Code § 233 allows
employees to use sick leave to care for
family members
• Must allow employees to use half of their
annual sick leave to care for sick “kin”
• Does not require a serious health
condition
• “Kin” = child, parent, spouse, domestic
partner (in loco parentis too)
• Kin care absences are protected and do
not count as violating attendance
policies
Sick Pay
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Sick w/out Pay
Family Care Leave
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Sick Leave Ordinance
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Catastrophic Illness Program
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CFRA
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Pregnancy Disability
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Military Caregiver Leave
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ADA
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FEHA
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Organ Donor
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Kin Care Leave
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Kin Care Leave
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Organ Donor
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Workers’ Compensation
Bone Marrow Donor
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Bone Marrow Donor
Alcohol/Drug Rehab
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Workers’ Compensation
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FEHA
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ADA
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Alcohol/Drug Rehab
Military Caregiver Leave
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FMLA
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Pregnancy Disability
CFRA
FMLA
Catastrophic Illness Program
Sick Leave Ordinance
Family Care Leave
Sick w/out Pay
Concurrent Leaves
SP Sick Pay
Leaves That May Run Concurrent
(Always Look for Exceptions to Concurrent Use)
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Pay and Benefits During Leave
• FMLA and CFRA are unpaid, but City policy
requires employees to use accrued SLP while on
unpaid FMLA/CFRA leave
• Employees may elect to use SLP, VAP, CTP, FHP
or other accrued leave while on an FMLA/CFRA
qualifying medical leave of absence
• Employees may apply for State Disability
Insurance (SDI), Paid Family Leave (PFL) or
Social Security Disability while on medical leaves
• Some MOUs require use of accrued SLP to
supplement SDI
• Employer must continue group health insurance
during FMLA/CFRA and PDL
Temporary Disability Benefits & Leaves
Bene fit
Workers’
Compensation (WC)
Paid by
Eligibility
Length
Employer
Immediately
Two years
Employer
Immediately
One year
State Disability Insurance
(SDI)
Employee
8th calendar day of
disability
One year
Long Term Disability
(LTD)
Employer (except
MEA)
Catastrophic Illness
Program (CIP)
Employer (donation by
other Employees)
Family Medical Leave Act
(FMLA) / California Family
Rights Act (CFRA)
N/A
One year and 1250+
12 weeks
hours
in last 12 months
Family Care Leave
N/A
One year
CA Labor Code 4850
(Public Safety Only)
Paid Parental Leave
(PPL)
Pregnancy Disability
Leave (PDL)
Paid Family Leave (PFL)
Employer (if all other
paid leave exhausted)
N/A
Employee
Two years
Immediately
Indefinite (or
until eligible for
LTD)
Immediately
8th calendar day of
family member’s
disability
Work Related Illness
or Injury
Work Related I lln e ss
o r I n ju ry
Non-Work Related; Birth
180 or 90
day elimination
period
1040+ hours
Covers
One year
(discretionary)
12 weeks
bonding
(16 weeks if
disability)
4 months (not
concurrent with
CFRA)
6 weeks
Work or Non- Work
Related
Catastrophic Illness of
Employee
Illness of Employee or
Family; Birth
Illness of Employee or
Family; Birth
Disability or Birth
Disability related to
Pregnancy/Child Birth
Birth
STATE DISABILITY INSURANCE:
ELIGIBILITY REQUIREMENTS
1) Unable to work for 8 consecutive days
•That means employees cannot be paid right away.
2) Employed
3) Lost wages
•Employees must have lost wages, or are earning less, because of the disability.
4) $300 SDI deductions from paycheck withheld in previous pay period
5) Under the care of a licensed doctor/accredited religious practitioner for the first 8 days
•If employees miss this timeline, the EDD can adjust the employee’s claim date so that it does fit this requirement.
6) Medical certification of disability
•A licensed midwife, nurse-midwife, or nurse practitioner may complete the medical certification for disabilities related to normal
pregnancy or childbirth.
7) Complete/mail form within 49 days of disability
HELPFUL LINKS/SOURCES
FMLA
• Full text: http://www.dol.gov/whd/fmla/fmlaAmended.htm#SEC_105_PROHIBITED_ACTS
• Implementing regulations: 29 CFR 825
• http://www.ecfr.gov/cgibin/retrieveECFR?gp=1&SID=428c7b52c36ff13c3fe694b83a63895d&ty=HTML&h=L&n=29y3.1.1.3.54&r=PART#
29:3.1.1.3.54.7.489.2
• FMLA Advisor: http://webapps.dol.gov/elaws/whd/fmla/overview.aspx
PDL
• Full-text: California Government Code 12945
• Implementing regulation: California Code of Regulations, Title 2, Div. 4, Chapter 1, Subchapter 6a. Starting with
section 7291.2 (search “California Code of Regulations 7291.2”)
CFRA
• Full-text: California Government code 12945.2
• Implementing regulations: California Code of Regulations, Title 2, Div. 4.1, Chapter 5, Subchapter 2, Article 11,
Starting at Section 11087
FEHA
• Full-text: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=12001-13000&file=12940-12951
• Implementing regulation: California Code of Regulations, Title 2, Div. 4, Chapter 1, Subchapter 9, starting at
section 7293.5
ADA
• Full-text: Ada.gov
• Implementing regulations: 29 CFR 1630
• http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=29%3A4.1.4.1.20#29:4.1.4.1.20.0.26.17.7
• JAN Network
DHR Medical Leave Program Contact
•Janie White
•Program Manager
•(415) 551-8903
[email protected]
QUESTIONS

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