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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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Medical Leave–What is a Covered Condition under Family Medical Leave Act or California Family Rights Act?

There are many differences in the state and federal family leave acts with regard to covered medical conditions. California employees are entitled to take either federal Family Medical Leave Act time off or California Family Medical Leave. FMLA leave is available for a serious health condition of the employee, child, spouse or parent. Additionally, you may allege violation of FMLA or CFRA (California’s version known as California Family Rights Act), if you are denied time off for the birth of a child, placement of a child with the employee for adoption or foster care, or to care for an injured service member or veteran. A serious health condition is one requiring continuing treatment by a health care provider and includes a period of incapacity, or at least two treatments by a health care provided within 30 days. Treatment does not include absence for picking up medications or visits to a doctor where no medical exam takes place. Generally, alcoholism and substance abuse are not covered, but may be in limited circumstances if it leads to another serious health condition.

Depression is usually covered where the employee is under continuing treatment. Pregnancy is generally covered where the pregnancy leads to a serious health condition, but pregnancy without incapacity or complications is not covered under the federal law. Both parents are entitled to FMLA leave for birth of a child up to a combined 12 weeks. Cold and flu is generally not covered.

If one condition is not serious, then a combination of conditions might well be considered covered. In one recent case, an employee underwent thyroid treatment, a brain scan and her doctor said she was “in an alarming condition” and on the edge of a break-down, both physically and mentally. Taken together, these may be serious.

In some cases an employer may insist that the employee take a paid FMLA leave and not return until a mental health practitioner authorizes the return. Involuntary leave does not violate any FMLA right.

Many of our employee-clients ask for time under FMLA or CFRA (the 12 weeks available under both laws run concurrently). A son or daughter is defined broadly and includes a biological, adopted, or foster child, stepchild or legal ward, or a child “in loco parentis” (meaning “in place of the parent”, say where the natural parent is incarcerated). The child must be under 18 years of age or, if over, “incapable of self-care because of a mental or physical disability.” The disability means a physical or mental impairmtent that substantially limits one or more of the child’s major life activities.

In determining whether an adult child’s impairment substantially limits a major life activity, the c ourt look at: The nature and severity of the impairment; the expected duration; the anticipated impact over the long term and other relevant facts.

It is not unusual for employees in the work force today to be taking care of both children and their parents. Care for parents is also covered, as long as the parent has a serious health condition. If the employee is taking care of either a child or parent by giving psychological counseling, this is covered. Also, many of our clients take time off to find caretaker for their parents and this is protected.  However, in one recent case, assisting a family member to relocate for safety reasons does not qualify as care for a child or parent. In the Marchisheck vs. San Mateo County case, 199 F3d 1068 (9th Cir 1999), the employee asked for leave under FMLA to take her son to the Philippines to get away from a bad environment which included the son’s taking of drugs. He had emotional and behavioral problems. The court denied leave relief since the employee was not “caring for a family member” under FMLA since there was no ongoing medical treatment.

Disability arising from pregnancy is covered both for FMLA leave and for Pregnancy Disability Leave Law in California.

There is some tension between a California employee’s privacy rights and the employer’s “need to know” a medical condition in order to determine if leave is appropriate. In many cases, Under California law, the certification from your doctor may state only that in the health care provider’s opinion, there is a serious medical condition. Government Code 12945.2(k)(1); 2 Cal C. Regs Section 7297.0 (a)(2). Once the employer is aware of the doctor’s certification, the employer may require the certification to include the date the condition commenced (if known by the doctor); the probable duration of the condition and a statement that the employee can’t work or perform one or more of the job’s “essential functions”. In a recent case, the employee had gone to a chiropractor, and the court held that the employer may not reject the leave because the note was not from a medical doctor (MD). Faust vs. California Portland Cement, 150 CA 4th 864 (1007).

Finally, where the certification is for the employee to take care of the family member, the above criteria must be satisfied with the statement that in the opinion of the health care provider, the family member’s serious health condition warrants the participation of a family member to provide care during a period of treatment. This may include providing psychological comfort, arranging third party care or directly providing or participating in the medical care.  A standard California “Certification of Health Care Provider is contained in our next blog.

As always, this blog is educational, not legal, and advise can only be given to you by an attorney licensed in your jurisdiction and familiar with the facts of your case.