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It can be tricky to know what to do to avoid litigation or just how to handle these challenging medical leave and accommodation situations.
How do you respond when one of your employees gets injured on the job in California?
Ellie was injured on the job. Let’s navigate her Workers’ Compensation, FMLA/CFRA & ADA case TOGETHER
It is crazy how complex handling medical leaves and accommodations has become in California. So, it is easy to understand why so many HR professionals are not that clear on how to manage these challenging situations.
Let me tell you how we helped one organization solve their challenges with Ellie and avoid litigation.
Ellie was injured on the job and has been on Workers’ Compensation leave. Her doctor gave her a return to work release with an on-going accommodation requiring weekly treatments by her chiropractor. Unfortunately, Ellie is in constant pain and begins going to the chiropractor more frequently and is late to work on a regular and frequent basis.
Ellie’s supervisor applied the company’s attendance points system, and just before Ellie was about to be disciplined, she informed her manager that her tardiness is related to her workers’ compensation injury. The HR Manager wants to help understand what they need to do next and what documentation is needed?
First, we want to make sure that Ellie is designated as FMLA/CFRA, if eligible, for any time she takes off related to her Workers’ Compensation Injury. Since Ellie has already returned to work but appears to be having continued challenges, send an FMLA/CFRA conditional designation notification pending eligibility verification from her Medical Provider, for her Serious Health Condition.
The FMLA/CFRA Certificate should cover all her time off for the Chiropractic care as well as her need to have a little extra time in the morning, so we would expect the FMLA/CFRA certificate to confirm the need for as needed, intermittent leave for continued treatment, with specific estimated times off needed.
This could be also be considered an accommodation under the ADA, but always apply FMLA/CFRA first for leave, then transition to the ADA when FMLA/CFRA is exhausted, if it is not an undue hardship to continue to provide an unpredictable start time. But what are you going to do about the existing attendance points?
If you knew or should have known, the ongoing late starts were a result of a protected Serious Health Condition under FMLA/CFRA, you will need to determine if you should retroactively rescind the designated attendance points that were accumulated as a result of not working with the employee sooner to determine if the late starts were related to her medical condition. Or on the side of the employee…AND… always act in good faith.
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Leave Management Solutions also has all the forms, checklist, flowcharts, directions and resources you need to respond to and designate CFRA leave (and ADA/FEAH and PDL with or without workers’ compensation) in your organization. We have been working with FMLA and ADA for over 27 years and provide expert testimony in this area. By HR for HR, let us be the experts so you dont have to. We will also be conducting a deep dive 3 – 1/2 day training, May 5-7, to specifically review simple, step by step strategies for implementing the new CFRA, specifically if you are a small employer and have never been challenged with this compliance requirement before.