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Leave Management Solutions
Integrated Medical Leave and Accommodation Management System™

Your Employee is on Medical Leave longer than expected. What do you do?

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Question:

Kelsey’s company has never had to formally process an employee through medical leave. Kelsey has two employees who have been out since October and November 2020 respectively for their own personal medical issues. They were not expected to be out very long but Kelsey was just notified through their respective doctors they will be out until March or longer. Neither medical leave is related to Workers’ Comp.

We have 22 employees in a manufacturing setting and have brought on temps to take on their workload. Both employees are suspected of using the system to their advantage so we want to make everything official and take the proper steps. Kelsey has received the CFRA medical certificate but does not know the next steps. Kelsey would also like to retroactively put them on CFRA leave if that is possible.

Answer:

You have 5 workdays from the date you know or should have known of the qualifying event for CFRA to designate or send an eligibility notice requesting additional documentation (like the Medical Certificate).

If you missed sending the 5 day deadline, you cannot and should not retroactively designate CFRA (this applies to FMLA also) leave. CFRA should start the date you get the letter out if you miss the notification deadline, however, you protect the employee for the full-time period.

The NEW CFRA regulation started January 1, 2021, so that is the first date the employees would be eligible (so no Nov / Dec time is valid for the New CFRA), and they will then have 12 weeks available for 12 months rolling forward to use the 12 weeks of CFRA leave.

It is very possible you have “gamers” already – or employees willing to commit fraud to access CFRA.  Regarding potential fraud, you will want to address the suspected fraud issue within days of receiving the medical certificate.  Leave Management Solutions has developed clear strategies for both designating CFRA (FMLA/Pregnancy) and a systematic method for dealing with potential fraud. LMS has been implementing our fraud and abuse management system for almost 30 years, assisting employees in addressing potential misuse of CFRA (FMLA/Pregnancy) ADA /FEHA, and other related state’s medical leave and accommodation regulations.

For now, you will want to designate the leave to start the day you send the letter, (if you get it out tomorrow that could start from that date), through the end of the medical return to work date or 12 weeks, whichever is sooner. Once CFRA has exhausted, any additional leave beyond 12 weeks, would need to be protected under ADA/FEHA (if they are considered to be a Qualified Individual with a Disability and it is not an Undue Hardship to continue the leave).

It is important to establish a clear, consistent procedure for responding to and managing CFRA (FMLA/Pregnancy) leaves and the ADA/FEHA leave and accommodation transition correctly. The litigation associated with getting this wrong can be costly.

Want to learn more? 

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, March 3-5, 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.

 

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