Legal Question in Medical Leave in California

Re: Employer Responsibility for Paid Family Leave

This is what I tell employees:

If and when you are denied legally protected leave, or are illegally discriminated or retaliated against, then you can consider legal claims.

If your CA employer has at least 5 employees, they can not fire you because you are pregnant, must allow you to continue working as long as you are able, must 'reasonably' accommodate your disability, and must allow up to 4 months of unpaid pregnancy leave under FEHA.

If your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA/CFRA maternity/medical leave, continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits.

If you qualify for both, you get both. If you are out longer than those guarantees, they can fire you.

Upon termination from employment, you are entitled to COBRA conversion of your medical benefits [if any], allowing you to pay for and retain your insurance coverage.

Now, if they violate those rules, contact me for the legal help you'll need.

Decider from that, or seek consultation with counsel. Contact me if you want to arrange that.

Re: Employer Responsibility for Paid Family Leave

Great question.

If the pregnancy doesn't involved disability/medical condition protected under FEHA, then all your other sources are right. If, however, the pregnancy lead to complications that "limit one or more basic life activities" of an employee, then upon FMLA expiration, an employer who employs 5 or more employees must consider whether it would be a reasonable accommodation to the employee's condition to extend the leave beyond the time provided by

FMLA and other provisions. An employer has such an obligation unless this would constitute undue hardships on the employer's operation.

Thanks, and feel free to follow up.

Arkady Itkin

http://www.sanfranciscoemploymentlawfirm.com

Re: Employer Responsibility for Paid Family Leave

If you terminate her, you risk a retaliation claim -- that she was fired because she took the leave. There is some authority to the effect that an employer cannot mislead an employee regarding that employee's rights to CFRA leave -- You don't write what kind of notice you gave her, or what your personnel manual says about family leave. This area of law is very tricky, and you are right to be careful. Based on what you've written, I would be very careful before firing her. Don't know enough about your situation re: whether there is potential exposure on not returning her to her prior position. One possible way of dealing with the situation is to negotiate with her to sign a release of claims -- you pay her x amount of money (less than it would cost to litigate any claims) to sign a release agreement. Feel free to contact me by email if you wish. Good luck.