cfra update - seyfarth shaw · gaye e. hertan presenters debbie l. caplan ©2015 seyfarth shaw llp...

CFRA Update: What Employers Need To

Know About the Amended

CFRA Regulations

©2015 Seyfarth Shaw LLP

Gaye E. Hertan

Presenters

Debbie L. Caplan


Overview

Quick refresher on 3 key leave laws and

what will not be changing

FMLA / CFRA / PDL

Amended CFRA regulations

Interplay of FMLA and CFRA

How will FMLA and CFRA be different?

How will FMLA and CFRA be alike?

Key issues / pitfalls to avoid for CA

3


3 Basic Rights Under FMLA and CFRA

An eligible employee has 3 basic rights:

1. An absolute entitlement to 12 weeks of leave

in a 12-month period (26 weeks for FMLA

military caregiver).

2. The right to have health benefits continued as

if still actively working.

3. The right to reinstatement to the same or

equivalent job.


FMLA / CFRA

Key Differences

• No family “service member” leave under CFRA

• Employee’s own pregnancy disability is not

covered by CFRA (PDL covers it)

• Registered domestic partners covered by

CFRA, but not FMLA

• Right to intermittent leave for bonding under

CFRA, but not FMLA

• When they do not run concurrently…


FMLA / CFRA

Run Concurrently, Except:

Pregnancy-Related Disability (PDL)

Care for Registered Domestic Partner with Serious Health Condition (CFRA only)

Qualifying Exigency (FMLA only)

Military Caregiver beyond 12 weeks or to care for individual for whom employee is “next of kin” (FMLA only)


*INTERPLAY * FMLA / CFRA / PDL

FMLA – 12 weeks

PDL – 4 months CFRA – 12 weeks

During pregnancy-related

disability, FMLA and PDL

run concurrently, but not

CFRA, which excludes

employee’s pregnancy-

related disability from the

definition of a “serious

health condition.”

After pregnancy-

related disability,

employee is entitled to

up to 12 additional

weeks under CFRA to

“bond” with baby or for

any other qualifying

reason.

0 12 wks 4 mo. 12 more

wks


Amended CFRA Regulations

Effective July 1, 2015

Located at 2 CCR §§ 11087 – 11097

California Family Rights Act statute has not

been amended, just the regulations

Incorporate the March 8, 2013 FMLA

regulations to the extent not inconsistent with

CFRA statute and regulations, other CA law, or

the CA Constitution

8


Overview of Changes

Incorporate newer version of FMLA regulations (3/8/13)

Technical and clarifying changes from past version

Some changes conform CFRA with FMLA

Some changes indicate where CFRA differs from FMLA

Updated CFRA Notice

Updated CFRA Medical Certification

Generally will not require overhaul of FMLA/CFRA policies,

but…

Use updated Notice(s) and Certification Form

Impacts leave administration

9


Examples of FMLA and CFRA Alignment

Eligibility - 7 year

break in service

Joint employer

Employee with no fixed

worksite

Time to respond to

employee leave request –

5 business days

Retroactive designation

Calculation of “12

workweeks” of leave where

employee’s work schedule

varies from week to week

Treatment of overtime

Holidays during leave

Minimum increments of

leave where it is physically

impossible to begin or end

work mid-shift

Fitness for duty release for

intermittent leave where

reasonable safety concerns

exist

10


Important Clarifications

1. Use of Paid Time Off During Leave:

What is “unpaid leave” under the FMLA/CFRA?

When may employees elect to use paid time off?

When may employers require use of paid time off?

What happens when the employee is receiving CA

benefits?

2. Exempt Employee Salary Issues During

Intermittent or Reduced Schedule Leave

3. Becoming Eligible During a Leave

4. Reinstatement Issues

11


Amended CFRA Regulations

Key Differences Between

FMLA and CFRA

vs.


Inpatient Care

FMLA

1. Requires overnight

stay in hospital or

other medical

facility.

CFRA

1. No overnight stay

required. Requires

admission to facility

where overnight stay

is expected even if it

later develops that

person did not remain

overnight.

Definition of Serious Health Condition


Incapacity

Plus Treatment FMLA

1. Incapacity must be for more than 3 consecutive full calendar days

2. The treatment by a health care provider must be “in person.”

3. Must see HCP within 7 days of first incapacity (first or only visit).

4. Must visit the HCP 2 times within 30 days of first incapacity, unless extenuating circumstances exist that prevent a follow-up visit within 30 days.

CFRA 1. Incapacity must be for more

than 3 consecutive calendar days (does not have to be full days.)

2. No “in person” requirement

3. No requirement that HCP be seen within 7 days of first incapacity.

4. No requirement that treatment be 2 times within 30 days of first incapacity.



Pregnancy

FMLA

1. Any period of

incapacity due to

pregnancy or for

prenatal care.

CFRA

1. Employee’s own pregnancy

excluded from the definition

of SHC under CFRA. Employees receive up to 4

months of PDL leave for their

own pregnancy-related

disability.

2. Pregnancy is still considered

a SHC for purposes of

family care leave.



Bonding Leave

FMLA 1. Is only available if the

employer agrees, but the

employer’s agreement is not

required.

1. CFRA 2. Employee is entitled to take

intermittent bonding leave.

The basic minimum duration of the

leave is two weeks, except on two

occasions an employee may

request such a leave of less than

two weeks’ duration

The employer may grant requests

for additional leave in less than two

week increments, but is not

required to do so.

3. Remember, CFRA bonding leave

begins after pregnancy-disability

leave.

Intermittent Leave for Bonding


What Can Be

Required? FMLA

1. All information on

applicable DOL medical

certification (separate

ones for family member

SHC and employee SHC),

including “medical facts”

regarding condition.

CFRA

1. Date, if known, SHC

commenced

2. Probable duration of condition

3. For employee’s own SHC,

statement that due to the SHC,

employee is unable to work or

perform one or more essential

job functions

For family care, estimate of

the amount of time HCP

believes the employee needs

to care for the family member.

Medical Certification


FAIR EMPLOYMENT & HOUSING COUNCIL

CERTIFICATION OF HEALTH CARE PROVIDER

(California Family Rights Act (CFRA))

IMPORTANT NOTE: The California Genetic Information Nondiscrimination Act of 2011 (CalGINA) prohibits

employers and other covered entities from requesting, or requiring, genetic information of an individual or

family member of the individual except as specifically allowed by law. To comply with the Act, we are asking

that you not provide any genetic information when responding to this request for medical information.

“Genetic Information,” as defined by CalGINA, includes information about the individual’s or the individual's

family member's genetic tests, information regarding the manifestation of a disease or disorder in a family

member of the individual, and includes information from genetic services or participation in clinical research

that includes genetic services by an individual or any family member of the individual. “Genetic Information”

does not include information about an individual’s sex or age.

1. Employee’s Name: _____________________________________________________________________

2. Patient’s Name: ________________________________________________________________________

Patient’s relationship to employee: _________________________________________________________

If patient is employee’s child, is patient either under 18 or an adult dependent child:

Yes No

☐ ☐

3. Date medical condition or need for treatment commenced:

NOTE: THE HEALTH CARE PROVIDER IS NOT TO DISCLOSE THE UNDERLYING DIAGNOSIS WITHOUT CONSENT OF THE PATIENT:

______________________________________________________________________________________

4. Probable duration of medical condition or need for treatment: ____________________________________


5. Below is a description of what constitutes a “serious health condition” under both the federal Family and

Medical Leave Act (FMLA) and the California Family Rights Act (CFRA).

Does the patient’s condition qualify as a serious health condition?

Yes No

☐ ☐

If the certification is for the serious health condition of the employee, please answer the following:

Yes No

☐ ☐ Is the employee able to perform work of any kind?

(If “No,” skip next question.)

Yes No

☐ ☐ Is employee unable to perform any one or more of the essential functions of employee’s

position? (Answer after reviewing statement from employer of essential functions of employee’s

position, or, if none provided, after discussing with employee.)

6.


If the certification is for the care of the employee’s family member, please answer the following:

Yes No

☐ ☐ Does (or will) the patient require assistance for basic medical, hygiene, nutritional needs,

safety, or transportation?

☐ ☐ After review of the employee’s signed statement (See Item 10 below), does the condition

warrant the participation of the employee? (This participation may include psychological

comfort and/or arranging for third-party care for the family member.)

Estimate the period of time care is needed or during which the employee’s presence would be beneficial:

_____________________________________________________________________________________

Please answer the following questions only if the employee is asking for intermittent leave or a reduced

work schedule.

Yes No

☐ ☐ Intermittent Leave: Is it medically necessary for the employee to be off work on an intermittent basis due to the serious health condition of the employee or family member?

If yes, please indicate the estimated frequency of the employee’s need for intermittent leave due

to the serious health condition, and the duration of such leaves (e.g. 1 episode every 3 months

lasting 1-2 days):

Frequency: ____ times per _____week(s) _____month(s)

Duration: _____ hours or _____ day(s) per episode

Yes No

☐ ☐ Reduced Schedule Leave: Is it medically necessary for the employee to work less than the employee’s normal work schedule due to the serious health condition of the employee or family member?

If yes, please indicate the part-time or reduced work schedule the employee needs:

_____ hour(s) per day; _____ days per week, from ___________ through __________ date date

Yes No

☐ ☐ Time Off for Medical Appointments or Treatment: Is it medically necessary for the employee to

take time off work for doctor’s visits or medical treatment, either by the health care practitioner

or another provider of health services?

If yes, please indicate the estimated frequency of the employee’s need for leave for doctor’s

visits or medical treatment, and the time required for each appointment, including any

recovery period:

Frequency: ____ times per _____week(s) _____month(s)

Duration: _____hours or ____ day(s) per appointment/treatment

7.

8.

9.


ITEM 10 IS TO BE COMPLETED BY THE EMPLOYEE NEEDING FAMILY LEAVE.

****TO BE PROVIDED TO THE HEALTH CARE PROVIDER UNDER SEPARATE COVER.

10. When family care leave is needed to care for a seriously-ill family member, the employee shall state

the care he or she will provide and an estimate of the time period during which this care will be

provided, including a schedule if leave is to be taken intermittently or on a reduced work schedule:

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

11. ___________________________________ _________________________________________

Printed Name of Health Care Provider Signature of Health Care Provider

____________________________________

Date

12. ________________________________ ___________________________________

Signature of Employee Date


Serious Health Condition

“Serious health condition” means an illness, injury (including, but not limited to, on-the-job injuries),

impairment, or physical or mental condition of the employee or a child, parent, or spouse of the employee that

involves either inpatient care or continuing treatment, including, but not limited to, treatment for substance

abuse. A serious health condition may involve one or more of the following:

1. Hospital Care: Inpatient care in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or consequent to such inpatient care. A person is considered an “inpatient” when a heath care facility formally admits him or her to the facility with the

expectation that he or she will remain at least overnight and occupy a bed, even if it later develops that such person can be discharged or transferred to another facility and does not actually remain overnight.

2. Absence Plus Treatment: A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition), that also involves:

Treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct

supervision of a health care provider, or by a provider of health care services (e.g., physical therapist)

under orders of, or on referral by, a health care provider; or

Treatment by a health care provider on at least one occasion which results in a regimen of continuing

treatment under the supervision of the health care provider.

3. Pregnancy: Any period of incapacity due to pregnancy, or for prenatal care. ** Note: An employee’s own incapacity due to pregnancy is covered as a serious health condition under FMLA but not under CFRA.

4. Chronic Conditions Requiring Treatment: A chronic condition which:

1. Requires periodic visits for treatment by a health care provider, or by a nurse of

physician’s assistant under direct supervision of a health care provider;

2. Continues over an extended period of time (including recurring episodes of a single

underlying condition); and

3. May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes,

epilepsy, etc.).

5. Permanent/Long-term Conditions Requiring Supervision: A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must

be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

6. Multiple Treatments (Non-Chronic Conditions): Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services

under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation,

etc.), severe arthritis (physical therapy), or kidney disease (dialysis).


Amended CFRA Certification

Use the new form (or modified version of it), but

remember…

You cannot require more than: 1. Date, if known, SHC commenced

2. Probable duration of condition

3. For employee’s own SHC, statement that due to the SHC, employee is unable to work or perform one or more essential job functions

For family care, estimate of the amount of time HCP believes the employee needs to care for the family member.

You cannot require employees to complete a

particular certification form.

23


Authentication

FMLA

1. To make the contact, the

employer must use a: health care provider;

human resources

professional;

leave administrator; or

management official

1. Under no circumstances

may the employee’s direct

supervisor contact the

employee’s health care

provider.

CFRA

1. Follows FMLA.

2. This is a key change in

the CFRA regulations

and is positive for

employers.



Clarification FMLA

1. With the employee’s written

authorization, the employer may

contact the employee’s health care

provider to clarify a medical

certification. To make the contact,

the employer must use a:

health care provider;

human resources professional;

leave administrator; or

management official

2. Under no circumstances may the

employee’s direct supervisor

contact the employee’s health care

provider.

CFRA 1. Even with the employee’s written

authorization, an employer may not contact the employee’s health care provider to clarify a medical certification.

2. The only way to lawfully clarify under the CFRA will be to go through the employee:

Provide the employee with a letter to give to the health care provider seeking clarification and have the employee bring the information back or have the HCP send it directly to the employer.



Second / Third

Opinions FMLA

1. If employer has a reason to

doubt the validity of the

certification, employer may

require second/third opinion.

2. May obtain second/third

opinion for both: employee’s own serious

health condition

family member’s serious

health condition

CFRA

1. If employer has a good faith,

objective reason to doubt the

validity of the certification,

employer may require

second/third opinion.

2. May obtain second/third

opinion for only: employee’s own serious health

condition



Recertification FMLA

1. Permitted every six months, in

connection with an absence.

2. No more often than every 30 days,

and only in connection with an

absence. However, if minimum

duration of condition is more than 30

days, then employer must wait until

minimum duration expires (although

may still request every six months).

3. In less than 30 days if employee

requests extension of leave,

changed circumstances, reason to

doubt the validity.

CFRA 1. Only permitted upon expiration of

the time period certified.

2. Employers may obtain annual

certification for ongoing / life time

medical conditions.

3. Note that this is not a change – this

has always been the rule under

CFRA.



How to Prepare for

New CFRA Regulations

1. Make sure your leave policies are up to date.

2. Use updated Notice(s) as of July 1, 2015.

3. Use the new CFRA medical certification form as of

July 1, 2015.

4. Do not seek to clarify a medical certification directly

with a health care provider, even with the patient’s

consent. You must go through the employee to

obtain any clarification.

28


Thank You!

Gaye E. Hertan

Senior Counsel

Ph: (310) 201-5251

[email protected]

Debbie L. Caplan

Senior Counsel

Ph: (310) 201-5235

[email protected]

mailto:[email protected]

mailto:[email protected]

cfra update - seyfarth shaw · gaye e. hertan presenters debbie l. caplan ©2015 seyfarth shaw llp...

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