The employment law experts at the California Chamber of Commerce field more than 1,600 calls on workplaces issues a month. And that’s on top of the inquiries sent their way at human resources seminars and other events. In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank, and CalChamber employment law experts Bianca Saad and Matthew Roberts discuss the most common HR questions they are asked concerning medical leaves of absence.
One of the most common questions Roberts gets from large employers is on the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA). The laws require employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons.
What employers frequently want to know, Roberts says, is what to do when an employee is not ready to return to work when their leave expires.
“A common mistake employers will make is assuming that once a job-protected leave like FMLA is over that that’s the only obligation an employer has to meet,” he tells Frank.
The FMLA accommodates for a serious medical condition, but the medical condition also may be covered under federal and state disability laws, Roberts explains. Due to these protections, “employers have a second obligation, separate from the FMLA, to reasonably accommodate their employees,” he says.
Roberts recommends that employers engage in an interactive process with their employee and determine if the employee may qualify for extended leave under the American with Disabilities Act or the California Fair Employment and Housing Act.
“The interactive process is designed, really, as an informal conversation with the employee and the employer to determine what accommodations exist to…help the employee come back to work,” he explains. “In the case where someone is on FMLA leave with a serious medical condition, there may be other accommodations out there that exist beyond leave that will help them return to work.”
Accommodating employees returning from leave can be a complicated process. Roberts recommends that employers seek legal counsel if an employee is not ready to return to work from a medical leave.
When talking to small employers, the most common question Saad is asked pertains to leaves of absence. Even if a small employer is not covered under FMLA or CFRA (because the employee number threshold is not met), the employer is still obligated to initiate an inquiry and engage in an interactive process, Saad explains.
The interactive process, Frank says, is “a fancy way of just saying talk to your employee; figure out what’s going to work, what kind of changes or modifications may need to be made. And it’s not always a leave of absence—it can be other arrangements.”
The interactive process is particularly important for small employers not covered under FMLA or CFRA because there are no bright-line rules that exist for them. The process will depend on a case-by-case basis that balances the needs of the employee, the needs of the business, and the nature of the business, Saad says.
When determining a reasonable accommodation, Roberts recommends that an employer review the employee’s job description to properly define what it is that the employee does. In doing so, an employer now has a guide for the conversation and can ask, “You do X, Y and Z, how can we help you do X, Y and Z?”
An employee’s physician may also provide guidance and limitations to help craft what employees can and cannot do, Saad tells Frank.
“It may be a back and forth process. The first shot might not make the basket and you might have to use that as a starting point, and that’s why it’s a ‘process’ and not just an event,” Saad says.