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.  

Sexual Harassment

Does sexual harassment still exist in the workplace?  Don’t we all know by now how to conduct ourselves at work?   The unfortunate answer to these questions is no.  Sexual harassment does still occur in the workplace; however California employment laws offer protection.

There are basically two types of illegal workplace sexual harassment: (1) quid pro quo and (2) what is called the “hostile work environment.”

Quid pro quo sexual harassment

“This for that” is the direct translation of quid pro quo. Quid pro quo sexual harassment occurs when the harasser offers something beneficial in the employment relationship in return for accepting romantic and/or sexual advances. For example, if a supervisor or manager offers a promotion or a raise in exchange for sex. Or threatens to write up or demote an employee unless the employee goes out on a date with the manager.   There are many other types of Quid pro quo sexual harassment that are more subtle.  If you have been made to feel uncomfortable at work or have been propositioned by your supervisor, a manager, or co-worker it is important to seek legal advice so that your rights are preserved.  Call Gienapp Law, APC at 619-234-3054 for a free consultation.  

Hostile Work Environment

Hostile work environment claims frequently do not involve claims of sexual or romantic advances; rather an employer creates, or allows to be created, an atmosphere in which the harassment is sufficiently sever or pervasive to create an actual abusive working environment, the so called “hostile work environment.”  

Subordinates, co-workers, supervisors, and even managers can all participate in creating a hostile work environment.  Harassment can come in the form of slurs, intimidation, offensive jokes, talk of a frank sexual nature, taunting, exposure to pornography while at work, groping, grabbing, ridicule, unwanted touching, and other similar behaviors.  Even a single severe act of sexual harassment can create a hostile work environment.  However in most cases a hostile work environment is created by many subtle (or not so subtle) acts, by one person or many, over a period of time.

Who is liable?

If the harasser is a supervisor or manager then the employer is directly liable to the harassed employee.  However if the harasser is a coworker or subordinate then the employer will only be held liable if the harassed employee complained to a manager or supervisor (HR or other) about the harassing behavior and the employer failed to take the steps required to stop the harassment. 

Retaliation

Unfortunately many victims of sexual harassment do not immediately report the harassment to their employers for fear of retaliation.  Reporting sexual harassment of any kind or type to an employer is 100% protected activity under California law.  If an employer retaliates in any way against an employee who has reported sexual harassment there are specific laws that protect the employee.  

If you have experienced sexual harassment in the workplace call Gienapp Law, APC at (619) 234-3054 for a free consultation. It is important to know your rights and take the steps necessary to protect your right.  Employees have rights too.  

Pregnancy Leave

Juggling a family and a job is stressful.  I frequently speak with men and women who are trying to balance job security with the demands of raising a family.  In this post I will review various regulations that relate to time away from work due to pregnancy.  Unfortunately for the well informed California Employee, the protections that exist vary depending on the type and size of your employer. 

California Pregnancy Disability Leave Law AKA “PDLL”

The PDLL requires employers who employ 5 or more employees to provide up to four months of leave to any employee who is disabled by their pregnancy.   The leave can be taken before, during, or after the birth of the child, or split into different time periods.  The employer is not required to pay any wages to the employee while out on leave; however the employer generally must hold the job open for the employee.  There is no length of service requirement for the PDLL meaning even recently hired employees are eligible for this leave. 

Paid Family Leave AKA “PFL”

Since 2004 California workers whose employer contribute to the State Disability Insurance (SDI) fund are entitled to six weeks of partial pay (usually about 55% of wages up to a maximum limit) each year while taking time off from work to: bond with a newborn baby, adopted or foster child; and care for a seriously ill parent, child, spouse or registered domestic partner.  This leave can be used in conjunction with other leave types available and is available to an employee starting day one of their employment. 

California Family Rights Act AKA “CFRA”

Leave under CFRA may be available if all of the following are true: (1) the employee has worked at least one year for their employer; (2) the employee has worked at least 1,250 hours in the past year, and (3) the employer has at least 50 employees working within 75 miles of the employee’s worksite.  If eligible as described above, an employee is able to take up to twelve weeks of leave in addition to the PDLL.  CFRA leave can be used to “care for a sick child, spouse, or parent with a serious health condition; or to care for a newborn child, newly adopted child, or foster child.”  As with PDLL this leave is without pay, however the employer is usually required to reinstate the employee to the same or similar position once the leave has ended. 

In addition to the leaves listed above, some employers have leave policies, and/or short term disability benefits that may cover some wages while a pregnant employee is out on pregnancy disability leave.  Depending on their medical condition and physician care, some pregnant employees may qualify for California State short term disability benefits (STI). For more information from the State of California on Pregnancy and employment go here.

As you see there are several leave types available for the pregnant California employee.  In addition to the basic information as described above, each leave type of a few other terms and conditions.  For information specific to your situation please call 619-234-3054 for a consultation.

Finally, it is illegal for any employer to treat you differently or punish you for taking pregnancy leave as described above. You generally have a right to be reinstated to your position upon return from your leave.  If you feel your employer is retaliating against you in any way for accessing pregnancy leave, call Gienapp Law, APC at 619-234-3054 for a free consultation. 

Hostile Work Enviornment

The Hostility Issue AKA The Hostile Work Environment

I frequently get telephone calls from disgruntled employees who believe they work in a hostile work environment.  Many times an employee tells me of their “Type A” personality boss who has worked his or her way into a position of authority in the workplace and runs his or her office with an iron fist.  I will call the person of authority the "bossy boss."  The bossy boss believes anger, fear, and outbursts are the best way to motivate and will frequently raise their voice in an effort to strike the proper tone.   To make matters worse the bossy boss is usually uneven.  One day a confusion or an error by an employee receives a simple clarification and correction, but the next day the same confusion or error receives a series of threats and insults and a vein popping display from bossy boss which leaves the employee in a state of shock.

Frequently by the time the employee is calling me he or she is about to go on stress leave and has four of the five signs of post traumatic stress disorder.  The employee calls me because he or she want to sue their employer for allowing a hostile work environment.   Before I address the bossy boss situation I will briefly describe the oft misunderstood term “hostile work environment.”

The term “hostile work environment” arises out of the body of laws which prohibit sexual harassment at work. Sexual harassment is verbal, physical, or sexual behavior directed at an individual because of his or her gender.  It consists of any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.   The question frequently arises, when do words alone arise to the level of sexual harassment.  The answer involves the famous “hostile work environment.” 

The “hostile work environment,” also called the “abusive working environment,” is a term created by Judges used to describe behavior that crosses the line from mere speech to illegal and actionable sexual harassment.  The California Supreme Court describes the line as follows, the harassment complained of must be “sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.” Aguilar v. Avis Rent a Car System, Inc.   Other Judges have interchanged the words “abusive” and “hostile” in describing this sexually charged working environment.   However the elements are the same; severe or pervasive sexually oriented conduct and a working environment that is somehow changed and altered as a result of the conduct. When both are present we have the “hostile work environment.”   In recent years the same term has been used to describe harassment based on other protected characteristics including religion, race, national origin and in California, sexual orientation. To find out more information about discrimination in the work place go here.

What about our bossy boss. Is threatening your subordinate employee legal?  Can a boss yell at his or her employee until the employee has to seek stress leave? Does the stressed out employee have any legal options?  It depends.  Unfortunately California does not have civility laws.  A mean spirited, uneven bossy boss who yells threats and insults is not necessarily in violation of any employment laws; especially if the bossy boss is an equal opportunity screamer, meaning every one in the department gets the same terrible treatment.   However, if some people in the department are singled out for worse treatment than others, there may be actionable harassment.  In any case it is always a good idea to check with any employment attorney to determine what options are available.  If something is happening at work that you feel may be unlawful your best defense is to become fully informed of your rights.  Call Gienapp Law, APC for a free consultation 619.234.3054 or visit our web site.