Do you know what to do if you have an employee has a need to take significant leave during a pregnancy?
Let’s navigate the CA Pregnancy Disability (PDL), FMLA & ADA challenges TOGETHER.
In less than 5 minutes LMS can provide you with strategies to manage your CA PDL/FMLA, ADA/FEHA, CFRA Baby Bonding (BB) challenges.
It really is crazy how complex handling medical leaves and accommodations has become in California. That being said, it is easy to understand why so many HR / Leave Coordination managers are not that clear on how to manage these situations.
Let me tell you how I helped this organization solve their challenges with unpredictable leave, avoiding litigation…
We are going to use an employee named Cara as an example...Cara is taking unpredictable leave during her pregnancy.
Problem:
Cara has exhausted all her CA PDL leave (17-1/3 weeks), prior to the birth of her child. The employer stated they ran FMLA concurrent to PDL for Cara’s ongoing intermittent and unpredictable leave so FMLA is also exhausted.
The employer transitioned Cara to ADA once FMLA was exhausted, had good faith interactive meetings, and changed her work schedule to accommodate the doctor's instructions for a three day work week.
However, Cara continued to miss work, even on the three days she was scheduled to work, Cara still came in late. Cara is not due to go out on official leave for the birth of the baby for several more months, what should the employer do?
Does Cara remain eligible for all this continued leave, is it all job protected leave?
The employee feels Cara is violating their generous absence policy. What should they do?
The Solution:
From what the employer indicated 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, but because Cara has a disability that was impacted by the pregnancy. Cara was also provided protection for “intermittent and unpredictable absences” under PDL/FMLA, until PDL/FMLA was exhausted. Then, Cara was provided a reduced work schedule, as an accommodation (during her pregnancy), once the FMLA and PDL was exhausted.
However, Cara is not complying with the agreed upon accommodation – and there was no request for ongoing, as needed, unpredictable leave as an accommodation under the ADA/FEHA, Cara just requested the reduced work schedule. At this point, It is important that Cara provide clarification from her medical provider verifying the use of her current leave. In other words, request Cara “cure” her medical certificate. Cara is both exceeding the number of agreed upon days off per week AND she is not complying with the agreed work hours when she is working.
If Cara is not able to “cure” her medical certificate to confirm the need for additional leave days and the unpredictable start time (in other words as needed, unpredictable, intermittent leave), you would then apply the company attendance policy in the same manner it is applied to all other employees. Make it clear to Cara during the Good Faith Interactive Meeting, as you carefully explain the curing process, that she must provide confirmation from the medical provider confirming the need for additional leave and the need for ongoing, as needed, unpredictable, intermittent leave or you WILL be applying the company’s attendance policy. Oh, and be sure to document this process and have Cara sign the Good Faith Meeting record.
However, once Cara cures the medical certificate, there will still be a need to re-engage in the Good Faith Interactive process and confirm, 1) it is not an Undue Hardship, or an unreasonable accommodation request to provide unpredictable, unreliable attendance as an accommodation under the ADA (regardless of the pregnancy), AND 2) that you can accommodate the additional days off that may be needed. It is very important to apply a systematic process when conducting the Undue Hardship analysis to assure you are in compliance with the ADA/FEHA.
Over the last 15 years we have had 100’s of HR professionals, consultants, HR Leave managers, benefits specialist, attorneys and even doctors come to our coaching/mentoring/training sessions: In The Trenches: California -The Ultimate Guide to California PDL, FMLA/CFRA, ADA/FEHA, PFL, SDI, PFL, and Workers' Compensation and Handling Performance Management and the related Harassment, Discrimination and Retaliation Challenges.
In The Trenches
By HR - For HR
The Ultimate Guide to California Medical Leaves and Accommodations, and Handling Performance Management and related EEO Harassment, Discrimination and Retaliation Challenges
Over the last 20 years, we have had 100’s of HR professionals, consultants, benefits specialist, attorneys and even doctors to our coaching/mentoring/training sessions. PDL, FMLA/CFRA, ADA/FEHA, PFL, SDI, PFL, and Workers' Compensation as well as strategies for Handling Performance Management and related Harassment, Discrimination and Retaliation complaints from protected employees.
Jay Wilk
CA Human Resource Consultant
“Beth's approach is easy to understand, comprehensive, and enlightening. Anyone who needs to administer leaves of absence for their company should attend this workshop. Participants indeed obtain everything they need to administer leave of absence policies and procedures for their employees after attending this workshop. Beth offers one-on-one guidance following participation in the seminar through her website, discussion groups, and posts. She is extremely knowledgeable, and this information is an extremely critical part of the human resources function.”
As you can see, it really is not hard to avoid litigation or to handle these types of situations, you just need the tools and procedures in place to guide you through the situation.
If you are an HR Professional and would like to get the tools and process in place to guide you through the situation click the button below to learn more about our 2-day workshops
