On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Lawsuit Prevention for Employers
Several new leave of absence laws enacted in California since 2010 have made the denial of any employee leave request a risky proposition. As a consequence, the only safe approach for employers presented with a request for time off is best expressed in four words: “Look before you leap.”
A consensus is emerging among legal commentators that these statutes, taken together, now comprise the most complicated subject matter in California labor law, bar none. That, as any veteran employer will attest, takes some doing.
Traditionally, California law allowed employers broad discretion as to when employees could be absent from work without jeopardizing their jobs. Time off was largely a matter of privilege subject to the employer’s discretion. It was not a matter of legal right.
The California legislature changed all that with several new leave laws that are both profoundly demanding of employers, and extremely complicated. These laws impose obligations which must be considered in combination with each other, and with numerous pre-existing laws, many of which are only tangentially concerned with time off from work. The most recent leave laws enacted in California authorize time off for:
- Crime Victims;
- Victims of Domestic Violence;
- Victims of Sexual Assault or Stalking;
- Sick Leave to Attend to Family Members;
- Paid Sick Leave for Employees;
- Organ and Bone Marrow Donation; and
- Volunteer Firefighters, Peace Officers and Rescue Personnel.
Exactly what obligations are imposed once a leave request is received, vary with each law. For example, many different federal, state and even local laws may apply to the same request for time off. Each of these includes different qualifying features, affirmative requirements and sanctions in the event of violation. These include the number of employees maintained by the employer, the reason provided with a request for time off, the duration of the requesting party’s employment and the number of hours worked annually by the employee, among others.
Moreover, the employer’s right to verify the reasons given for a requested leave vary with each statute, are often quite restrictive and as with other features specific to each leave-related law, often conflict. However, in the event of a conflict, the employer is not free to simply choose which law will be applied. On the contrary, consistent with California labor law generally, where a conflict of laws is presented, the employer is uniformly required to comply with the law that is most protective of employees.
In order to determine their leave obligations once a (written or verbal) leave request is received, employers are now required to identify each and every federal, state and local law that may have application to a given leave request, analyze the qualifying features of each, as well as the interplay between them, to identify which laws are applicable to the factual circumstances involved. In addition, the express requirements of each leave law can be dramatically altered by court rulings, regulations and subsequent “clarifying” or related legislation.
Employers are well-advised to take the new leave requirements very seriously, because the rejection of legally-justified leave requests will inevitably prompt angry resignations, as well as wrongful terminations, when employees who are aware of their new rights proceed to take leave without approval. This means that untold new lawsuits alleging unlawful discrimination, retaliation, harassment and/or termination are lying in wait for unwary employers.
As always, the starting point for any discussion of protecting employers is the employee handbook and any applicable contracts of employment. Assuming the foundational protections are in place, starting with at-will and mandatory arbitration policies, the handbook should include carefully drafted policies describing the terms of each leave of absence that might be requested, depending on the size and operations of each employer, and other factors as appropriate. These should emphasize the rights employers retain to require that written leave requests be presented to designated management personnel.
Once the various mandated leaves are carefully addressed in the handbook and employment contracts, employers should instruct all supervisors to immediately refer any request for time off, no matter how seemingly frivolous or unfounded, to personnel with the expertise and authority to identify every law that might apply to a given leave request.
Here, it is imperative the employers remember a cardinal rule of California labor law: that what any supervisor says, does or is subjectively aware of is imputed to the employer by law, whether a company’s decision-makers were actually aware of them or not. Otherwise stated, the employer’s legal posture in any situation can never be stronger than its weakest supervisor.
The task of identifying all laws that may have application to a given leave request, much less determining an appropriate response, can often involve far more than is apparent at first glance.
For example, under California’s pregnancy disability leave law, employees are entitled to up to four months off due to pregnancy-related disabilities. While this law does not require paid time off, California’s new sick leave law allows employees to apply all paid sick leave benefits. Moreover, the recently-enacted “kin-care” law may entitle the requesting employee to apply one half of accrued vacation benefits. If the employee is exempt, different rules apply. Even if paid benefits are not available, the employee must normally be provided unpaid time off, if he/she otherwise qualifies.
Moreover, for employers of 50 or more employees, the California Family Rights Act may authorize a pregnant employee to take an additional 12 weeks off to attend to the employee’s “serious health condition,” a term which embraces conditions beyond pregnancy-related disabilities. This law may also require the employer to pay health insurance premiums during the leave.
Many employers make the regrettable mistake of applying one law with the clearest application to a particular leave request, to the exclusion of others that have less obvious application. Employers are required to comply with all federal, state and local laws, individually, and in combination with other applicable statutes. Employers who reject a leave request authorized by any federal, state or local law do so at their own peril.
In the event a determination is made that the kin-care law, for example, has no application to a particular leave request, numerous other laws, including laws that do not address leaves of absence per se, may require the employer to grant time off. For example, California law may require an employer of five or more employees to grant an employee with a physical or mental disability time off, not as a leave of absence, but as a reasonable accommodation of the employee’s disability. Failure to do so, or the imposition of excessive verification requirements, can result in claims of unlawful retaliation and/or harassment, among others.
While a more detailed discussion is beyond the scope of this article, one point is essential for employers to understand. Employees requesting time off are not required to specify the proper name of the leave being requested, or to refer to the particular law relied to justify the request. They need only present facts that would entitle them to leave under any federal, state or local statute.
A verbal request for time off, “to care for my partner’s child in Denver,” for example, may be sufficient, under the kin-care statute, and an after-the-fact notification may be sufficient if the professed need for leave is the result of an emergency. It is the employer’s burden to determine if the reason advanced creates a right to leave under any applicable statute.
It is for this reason, combined with the complex interaction of the many laws bearing on this subject, that there remains only one thing that can be stated with certainty: the spontaneous denial of even a “ridiculous-sounding” leave request increasingly resembles a game of Russian Roulette… minus the game.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/