Q. Cara has exhausted all her PDL leave (17-1/3 weeks), prior to the birth of her child. We ran FMLA concurrent to PDL, for the same intermittent and unpredictable absences. We transitioned her to ADA, had good faith interactive meetings, and changed her work schedule to accommodate the doctor’s instructions for a three day work week. Cara has continued to miss work, even on those days she is scheduled. She is not due to go out on official leave for birth of the baby until January 29th. If she leaves prior to that, is she eligible for any protected leave? She is violating our excessive absence policy. What do we do?
A. From what you indicate above I understand Cara has been provided a reduced work schedule as an accommodation – for a medical condition that meets the criteria under the ADA/FEHA, not just because she was pregnant, correct? However, you mention that you provided the same “intermittent and unpredictable absences” under PDL/FMLA, so was it a reduced work schedule, but she could take whatever days off she wanted, it is not clear. Either way, if Cara is not complying with the agreed upon accommodation – unless of course you agreed to on-going, as needed, unpredictable leave as an accommodation under the ADA/FEHA, I suggest you request Cara provide clarification from her medical provider verifying the use of her current leave. In other words, request Cara cure her medical certificate to confirm the current use of leave, either because she is exceeding the number of agreed upon hours/days per week OR she is not coming to work on the agreed work schedule. If Cara is not able to cure and confirm the need for the additional leave days/hours/or unpredictable change in work days, apply your company policy in the same manner you apply it to all other employees. Make it clear to Cara during the curing process of your intent. However, if Cara cures the medical certificate, it appears there may be a need to reengage in the Good Faith Interactive process and reconfirm if it is indeed an Undue Hardship, or unreasonable request to provide unpredictable, unreliable attendance as an accommodation or a changing work schedule. Please be sure to apply a systematic process to assure you are in compliance with the ADA/FEHA.
Here are some of the resources on the LMS Membership webpage to help you comply:
Pregnancy Disability CA Section:
Leave Diagram TRAININGS
- SS2012 What Do I Need to Get Started with PDL – FMLA – CFRA
- HC1002 ADA for Pregnant Employee
- HC1006 FMLA – PDL with CFRA and ADA – FEHA
- HC100 ADA Accommodation Good Faith Meeting – Undue Hardship Analysis Checklist
Forms and Letter
- CA3401 PDL – FMLA – CFRA Exhausted Conditional Designation Transition to ADA – FEHA
- CA2103 FMLA – CFRA Designation Letter
- FD1002 ADA Accommodation Undue Hardship Analysis Form
If you’re not an LMS Member, you can easily do the following to learn more!
- Request a DEMO from us.
Do you want to quickly become a Medical Leave and Accommodation Rockstar, but you’re not sure where to start? Don’t miss our FINAL 2018 San Jose 2-day workshop on Medical Leaves and Accommodations called:
LMS Can Help! Leave Management Solutions (LMS) is hosting a workshop series focused on managing medical leaves and accommodations in California properly, to avoid time-consuming and costly mistakes.
A few topics we will cover:
- How to stop or prevent things like Medical Leave/Accommodation abuse from getting in the way of the running of your organization
- How to master integrating the various medical leaves/accommodations, including when multiple leaves run concurrently
- How and when to transition from FMLA/CFRA to ADA/FEHA. (NOTE: Errors in this area are the cause of most lawsuits I am retained to be an Expert Witness for.)
- How to complete (and properly document) a Good Faith Interactive Meeting
- How to complete the super important Undue Hardship Analysis
- How to give 100% actionable answers you can implement now.
Our next workshop is in San Jose on December 6th to 7th and you won’t want to miss it!
NOTE: This publication is for informational purposes only and is from the perspective of Beth De Lima, an in-the-trenches Medical leave and Accommodations Human Resource Consultant and HR Expert. Ms. De Lima has over 25 years of experience assisting companies with managing leaves and accommodations under FMLA and ADA, as well as providing expert testimony regarding HR industry standards of care regarding employment litigation nationally.