Over $30 Million Recovered for Employees in the Past Three Years
AZADIAN LAW GROUP, PC REGULARLY REPRESENTS CLIENTS THROUGHOUT LOS ANGELES WHO ARE WRONGFULLY DENIED MEDICAL LEAVE OR RETALIATED AGAINST DUE TO TAKING MEDICAL LEAVE FROM WORK.
The right to medical leave and knowing that you have a job to return to is an invaluable benefit for employees going through an already difficult and often painful experience. We understand how being denied medical leave or having that medical leave interfered with can harm the employees recovery. Employers often also discriminate and retaliate against employees for taking medical leave, which can cause severe financial issues, losing medical coverage, and other negative consequences for employees and their families. The employment lawyers at Azadian Law Group, PC fight employers aggressively to make sure they secure the maximum recovery for employees whose rights to medical leave have been violated.
A qualifying employee (who worked for his employer for 1,250 hours or more during the past year for a company with 50 or more employees) is protected by the California Family Rights Act and federal Family Medical Leave Act (CFRA/FMLA).
Under these laws, an employee may be entitled to take up to three months of un-paid leave for:
- A serious health condition requiring inpatient care or continuing treatment
- A serious health condition of a spouse, child or parent
- The birth of the employee’s child or adoption of a child by the employee
Employers are prohibited from discouraging or interfering with an eligible employee’s right to take CFRA/FMLA leave. Further, employers may not terminate or take other adverse action against an employee because the employee is taking such a leave. The employer may request a medical certification regarding the medical leave.
When an employee returns from medical leave, he or she should be returned to the same position and same pay/benefits. See Cal. Code Regs. tit.2, § 11089(b) (“The employee is entitled to the same position or to a comparable position that is equivalent (i.e., virtually identical) to the employee’s former position in terms of pay, benefits, shift, schedule, geographic location, and working conditions, including privileges, perquisites, and status. The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.”)
An employer cannot retaliate against you for requesting or taking CFRA/FMLA medical leave. To prove retaliation the employee must show (1) the employer was an employer covered by CFRA/FMLA; (2) the employee was eligible to take CFRA/FMLA leave; (3) the employee exercised his or her right to take leave for a qualifying CFRA/FMLA purpose; and (4) the employee suffered an adverse employment action, such as termination, fine, or suspension because of her exercise of her right to CFRA/FMLA leave. See Moore v. Regents of Univ. of Cal., 248 Cal. App. 4th 216, 248 (2016).
The employee is protected even where the employee did not specifically request medical leave when the employer was aware of the employee’s need for medical leave.Moreover, although Claimant did not directly request CFRA leave for a qualifying purpose (his ankle injury which prevented Claimant from performing his essential job duties), he exercised his right to take leave when prompted to do so by Ms. Essex. See Moore v. Regents of Univ. of Cal., 248 Cal. App. 4th 216, 248 (2016) (“The relevant questions with respect [to the third element] is not whether a plaintiff expressly requested CFRA leave, but, rather, whether a plaintiff ‘exercised her right to take leave’ and whether the purpose for the leave sough was a ‘qualifying CFRA purpose.’”)
You can find a helpful brochure from the California Department of Fair Employment and Housing regarding your rights to medical leave here. A sample medical certification from the California Department of Fair Employment and Housing is available here.
The Protections To Employees Provided By California’s New Paid Sick Leave Law
A lot of California employees have questions about whether they are permitted or should be paid for missing work due to illness, such as calling out with the cold or flu or taking a family member to the doctor. California’s Paid Sick Leave Law, called The Healthy Workplaces, Healthy Families Act of 2014, provides a number of protections for California employees.
California’s Paid Sick Leave Law applies to all employers with employees working in California, regardless of the size of the employer (there is no minimum number of employees and employer must have). The law also applies to part-time employees and even employees who are exempt from overtime. However, there are certain exclusions for union employees who are covered by a collective bargaining agreement that provides for paid sick time and paid-time-off (PTO) and in-home support service employees.
Under California’s Paid Sick Leave Law, all employees must accrue paid sick days (one hour per 30 hours worked, up to cap of 48 hours/6 days). See California Labor Code § 246(b)(1); see also California Labor Code § 246(i). An employee cannot use his or her accrued sick days until 90 days of employment. See California Labor Code § 246(c).
The sick days can be used for the employee or for the employee’s parent, child, spouse, or domestic partner (kin care). See California Labor Code § 245.5(c). The time off can be used for diagnosis or preventative care. See California Labor Code § 246.5(a)(1).
Accrued sick leave time rolls over but the employer can limit use to 24 hours/or 3 days in a year. An employer cannot take away accrued sick days (“use it or lose it” policies or not allowed). See California Labor Code § 246(d). An employer’s paid-time-off (PTO) or earned-time-off (ETO) policies may satisfy paid sick leave requirements. See California Labor Code § 245.5(a)(1); see also California Labor Code § 246(e).
If you are unsure how much sick leave time you have accrued, check your paystub as employee’s sick leave balances must be reported on paystubs. See California Labor Code § 246(i).
Unfortunately, the law does not expressly prohibit the employer for asking for a doctor’s note as a condition for taking a paid sick day. (Whether or not requiring a doctor’s note is permissible is still open to debate.)
If the need for sick leave is foreseeable, the employee must provide reasonable advance notice to the employer. If the need for sick leave is not foreseeable, then notice must be provided as “soon as practicable.”
It is illegal for an employer to retaliate against an employee for using accrued sick days or for complaining that the employer is not following the law regarding paid sick days. See California Labor Code § 246.5(c).
It is important to note that law relating to paid sick leave are in addition to the protections against disability discrimination and the need to provide reasonable accommodations to disabled employees. Such accommodations can include medical leave and extended medical depending on the circumstances.
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