Medical Leaves of Absence 

When we, or a family member, get sick or hurt it can be an extremely stressful time.    These situations are often made worse when we are afraid that we might lose our job by taking off time to recover or care for a sick family member. 

In California, some types of medical leave are protected under the federal Family and Medical Leave Act (FMLA) and/or the analogous California Family Rights Act (CFRA).

The first thing to know is “am I eligible?”

The FMLA/CFRA does not protect all workers.  These leave provisions only apply to those employees who meet the following: (1) have worked at least one year for their employer; (2) have worked at least 1,250 hours in the past year; and (3) whose employer has at least 50 employees working within 75 miles of the employee’s worksite.

According to U.S. Department of Labor, approximately 53% of the US workforce, are eligible for FMLA protection (the other 47% have to rely on their employer’s leave policies). Employees who work for an employer who does not meet the three guidelines above may still qualify for medical leave.  Contact Gienapp Law, APC (619) 234-3054 for a free consultation concerning your medical leave rights. 

How much medical leave is allowed under FMLA/CFRA?

Under FMLA/CFRA, employees are entitled to take a maximum of 12 weeks of unpaid medical leave to care for a newborn, newly adopted child, seriously ill family member or for their own serious illness (under FMLA this includes incapacity due to pregnancy, childbirth or related medical conditions). You may be entitled to an extension of leave past the 12 week maximum if you have a mental or physical disability that requires a leave extension as an accommodation of that disability.

What if I’m pregnant?

If you are unable to work due to pregnancy, childbirth, or related medical conditions, you generally qualify for 4 months of leave under the California Pregnancy Disability Leave Law (PDLL) – (see my other Blog post on Pregnancy Leave)  A pregnant employee is eligible for PDLL as long as the employer has at least five employees. After the initial 4 months, eligible employees can then take an additional 12 weeks of CFRA leave “for reason of the birth of her child, if the child has been born by this date.”

Procedure for seeking medical leave

Virtually all employees who are required to offer their employees FMLA/CFRA leave have forms for an employee and/or the employee’s medical provider to fill out.   It is important to follow the procedures your employer has for taking medical leave, including submitting the required information from a doctor or medical provider.   In some circumstances, an employer may even ask an employee to go to a doctor or medical provider of their choosing for a second opinion. 

Illegal Activity

It is illegal for an employer to treat you differently or punish you for asking about or taking medical leave. Under most circumstances, you also have a right to be reinstated to the same or a comparable position upon return from your medical leave. 

If you believe your employer has interfered with or retaliated against you for using medical leave, or you have questions or concerns about getting full access to your medical leave, contact Gienapp Law,APC (619) 234-3054 for a free consultation.  

Defamation

Defamation 

If someone says something about us that is untrue or mean spirited, it will generally hurt our feelings.  What if someone says it at work?  A coworker or our boss?  What if I get fired because of what someone else said about me?  What if it is not true?  Can I sue them?   What are my damages?

Some clarifications.  Slander, Libel, and defamation are all related.  Libel and slander are types of defamation. Slander is spoken defamation. Libel is written defamation.  But what, exactly, is defamation.  

The legal meaning of defamation, the type you can sue on, is quite narrow.  It is so narrow in fact, that in most cases, what you think and feel is defamation is likely not defamation in the legal sense.  

Legal Definitions 

In order to sue for Defamation, the event must violate the written law, found in California Civil Code §§ 45 to 47.     California law defines Libel as: “false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” 

California law defines Slander as follows: “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.”

In order to win a defamation case you must prove the following: 

1. A person made a defamatory statement to at least one other person besides you: 

2. The statement was a false statement of fact (i.e., something that can be proved true or false), not opinion. Bad performance reviews are typically held to be statements of opinion, so if you get one, you won’t normally be able to sue for defamation. 

3. The person who heard the statement reasonably understood that statement referred to you; 

4. The hearer reasonably understood that the statement meant something defamatory; 

5. The person who made the statement failed to use reasonable care to determine whether the statement was true or not before making it. 

Examples

A common complaint I receive is that a supervisor or manager put things in a performance review that are false or misleading.  Sometimes the review states that if the employee does not change their performance he/she risks getting fired.  Most times in California, things that go into a performance review are considered opinions only, meaning that they cannot be proven true or false.  Statements that are opinion only cannot be defamation.  Furthermore, usually performance reviews are not "published" to other people they are kept between the manager and the employee.  On the other hand if a manager says something that is not true, even in a performance review, that tends to directly injure the employee in his profession trade or business, and the manager says it to other people, it may be defamation.   

Another common situation involves job reference checks.  If you are looking for a job and a former employer says something to a prospective employer that is not true and hurts your chance to get the new job, you may have an action for damages against your old employer.  If this has happened to you, please call Gienapp Law, APC at (619) 234-3054 to discuss your options.  

If any person makes false statement about your professional reputation or competence, that people hear and believe are true, that speaker may be liable to you for defamation.  If a co-worker makes such a statement, you are usually limited to a lawsuit against your co-worker.  However if a supervisor or manager makes such a statement, you may be able to sue not only the person who made the statement, but your employer too.  

There are many legal pitfalls in the law of defamation.  If you believe you have a claim, it is important to not wait.  Claims of defamation must be brought within one year, and in some cases must be presented within six months.  If you believe someone has made a defamatory statement against you, please call Gienapp Law, APC at (619) 234-3054 to discuss.