UNDERSTANDING MEDICAL LEAVE LAWS:

A Summary To Employee Rights and Employer Obligations Under The ADA, FMLA, CFRA, FEHA, Pregnancy Disability and Workers' Compensation Statutes.

As the laws governing workplace leave become more complicated, it becomes critical that employees have a reference in place to assist them in understanding and identifying the particular law(s) implicated, and ensure the company responds promptly and appropriately when a request for leave is necessary. The Americans With Disabilities Act, the Family and Medical Leave Act, the California Family Rights Act, the Fair Employment and Housing Act and the Workers’ Compensation Act create an intricate and complicated system of employer obligations and employee rights that can confuse and ensnare even the most sophisticated and well-intentioned employee. Thus, it is critical that employees familiarize themselves with this complex body of state and federal statutes and regulations.

The ADA prohibits employers from discriminating against a "qualified individual with a disability" with regard to employment practices or terms, conditions, and privileges of employment. A disability can be either physical or mental. The ADA also requires employers to provide "reasonable accommodation" to enable an otherwise qualified individual with a disability to perform the essential functions of the job, unless to do so would cause an employer "undue hardship" or pose unacceptable safety and health risks.

Common examples of reasonable accommodations include leaves of absence, part-time or modified work schedules and reassignment to a vacant position. "Undue hardship" means an "action requiring significant difficulty or expense" when considered in light of, among other factors: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facilities involved, number of persons employed, and the effect on expenses and resources or other impact upon the facilities’ operations; (3) the type of operations; (4) the availability of tax incentives; and (5) the amount of assistance available to the employer from outside agencies or organizations.

The FMLA requires employers to provide eligible employees with 12 weeks of family or medical leave in a 12-month period and to continue whatever health plan benefits it offers during the leave. Employees may take this leave for their own serious health condition or for that of a spouse, child or parent.

The CFRA is substantially similar to the federal FMLA, with one major exception: the CFRA excludes from the definition of a "serious health condition" an employee’s disability "on account of pregnancy, childbirth, or related medical conditions." Leave for pregnancy disabilities is a separate leave entitlement under the California Fair Employment and Housing Act (FEHA), and is available in addition to the employee’s leave entitlement for other "serious health conditions" under the CFRA.  However, the CFRA does provide up to 12 weeks of leave in a 12-month period because of the birth of a child (child bonding leave).  For all leaves except pregnancy disability, CFRA leave runs concurrently with FMLA leave.

The FEHA imposes employer obligations in, among others, two distinct areas: physical and mental disabilities, and pregnancy. Obligations with regard to physical and mental disabilities are substantially similar to those imposed by the ADA. Obligations with regard to pregnancy-related disabilities are significantly more expansive than those imposed by the FMLA.

1. Physical And Mental Disabilities

Like the ADA, the FEHA prohibits employers from discriminating against employees and applicants on the basis of physical and mental disability. It also prohibits an employer from failing to reasonably accommodate the known physical or mental disability of an applicant or employee, unless the employer can demonstrate that the accommodation would produce undue hardship to the operation of its business.

2. Pregnancy

The FEHA prohibits discrimination against pregnant employees and requires employers to provide women disabled due to pregnancy, childbirth or related conditions an unpaid leave of absence for the duration of the disability up to a maximum of four months. This specific leave is known as Pregnancy Disability Leave (PDL) and is an entitlement distinct from and in addition to leaves under the CFRA, including child-bonding leave. Employees are eligible for PDL upon hire. PDL need not be taken in one block of time or only after the birth of a child. While on PDL, employees are protected from absence discipline and have a greater job reinstatement guarantee than what is required under the FMLA or CFRA. The FEHA additionally requires employers to transfer a pregnant employee to a less strenuous or hazardous position upon the employee’s request.

1. Benefits

California’s workers’ compensation statute, like those of most other states, requires employers to provide wage replacement and medical benefits to employees who are injured in the course and scope of their employment. These benefits must be provided whenever an employee is injured on or because of their job — regardless of fault. The fact that an injury results while an employee is working is usually sufficient to establish coverage and compensability under the Act. A worker need not establish the employer’s negligence or that the employer’s acts or omissions were the cause of the injury. Likewise, a worker’s negligence or actions causing or contributing to injuries will not disqualify the worker from receiving benefits.

2. Non-Discrimination

California Labor Code Section 132a declares it a state policy that employers will not discriminate against workers who are injured in the course and scope of their employment. The statute makes it a misdemeanor for any employer to discharge, threaten to discharge, or in any manner discriminate against any employee because he/she has filed or made known his/her intention to file a claim for workers’ compensation or an application for adjudication, or because the employee has received a rating, award, or settlement.

Whenever an employee is absent or requests time off work because of an illness, injury or other health condition, the employer must immediately determine what laws apply in order to determine its rights and obligations, and those of the employee. This involves a three-step process: (1) determining what statutes apply to the employer; (2) determining what statutes apply to the employee; and (3) determining what statutes apply to the employee’s health condition.

1. ADA: Employers with 15 or more employees

2. FMLA/CFRA: Employers with 50 or more employees

3. FEHA: Employers with 5 or more employees, but only employers with 15 or more employees are subject to obligations regarding mental disability

4. Workers’ Compensation: All private employers

1. ADA: Applies to the employee who is "qualified," that is, who satisfies the requisite skill, experience, education and other job-related requirements of the employment position and who is able, with or without reasonable accommodation, to perform the essential functions of the job

2. FMLA/CFRA: Applies to the employee who has worked for employer for at least 12 months, has worked at least 1,250 hours in the preceding 12-month period, and works within 75 miles of 50 other company employees

3. FEHA: Applies to all employees, including employees compensated by temporary service agencies, but not independent contractors

4. Workers’ Compensation: Applies to all employees, except independent contractors or unpaid volunteers who are injured on the job

Each of the statutes varies in the types of health/medical conditions encompassed within their protections. Evaluating the employee’s condition is critical in determining which statute or statutes apply. Note that a single condition may fall under the protections of two or more statutes. In addition, the nature of an employee’s health condition may change over time. For example, a workplace injury becomes, after three days of incapacity, a "serious health condition," and finally evolves into an ADA-protected disability when the injury is a permanent disability that substantially limits the employee in a major life activity. In such situations, an employer’s obligations change over time as different laws are triggered. Thus, employers must evaluate an employee’s condition at each decision-making juncture to determine their legal rights and obligations on an ongoing basis.

1. ADA: A Physical Or Mental Disability

In order to rise to the level of protected "disability," a physical or mental impairment must substantially limit an employee in one or more major life activities. "Major life activities" are defined broadly under the statute and include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, thinking, concentrating, interacting with others, and working. "Substantially limits" means that an employee is unable to perform or is significantly restricted as to the condition, manner, or duration under which he or she can perform a particular major life activity, compared to the average person.¹

2. FMLA: Serious Health Condition

The definition of a "serious health condition" under the FMLA is very broad and covers a variety of physical and mental conditions. It is defined as an illness, injury, impairment or physical or mental condition that involves:

• Inpatient care in a hospital, hospice or residential medical facility;
• Incapacity of more than three days plus continuing treatment by a health care provider;
• A period of incapacity due to pregnancy or for prenatal care;
• A period of incapacity or treatment for a chronic health condition that requires periodic visits to a health care provider rather than a continuing period of incapacity;
• A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective, e.g., Alzheimer’s disease, severe stroke; or
• A "serious health condition," that involves as little as three days of illness and a visit to a doctor with some kind or "continuing treatment": any period of incapacity due to pregnancy or prenatal care; or periodic medical treatments for a chronic health condition that causes no incapacity.

3. CFRA: Serious Health Condition

The definition is identical to FMLA above, except that it excludes incapacity due to pregnancy or prenatal care.

4. FEHA

a) Physical Disability

The FEHA defines physical disability as a physiological disease, disorder, cosmetic disfigurement, or anatomical loss that both: (1) affects the neurological, immunological, musculoskeletal, special sense organs, respiratory, speech, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin or endoctrine system(s) and (2) limits an individual’s ability to participate in major life activities. In addition, to the extent the ADA’s definition of "physical disability" would include more conditions, that definition is incorporated into the FEHA.

b) Mental Disability

The FEHA defines mental disability as "any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities" (excluding unlawful use of controlled substances or other drugs).

c) Disability Due To Pregnancy, Childbirth Or Related Conditions

An employee is disabled due to pregnancy, childbirth or related conditions if, in the opinion of her health care provider, the employee is unable to work at all or is unable to perform one or more of the essential functions of her job without undue risk to her self or the successful completion of her pregnancy, because of pregnancy, childbirth or related conditions.

d) Pregnancy/Affected By Pregnancy

Pregnancy includes pregnancy, childbirth and related medical condition, as well as the employer’s mere perception that the employee is pregnant or has a related medical condition. Affected by pregnancy means that a health care provider has certified that it is medically advisable for a woman who is pregnant or who has a related medical condition to transfer to another job.

5. Workers’ Compensation: Work-Related Illness Or Injury

Generally, compensable injuries are those physical injuries and, in some cases, mental injuries that are sustained in connection with a job and that arise out of or are incidental to the employee’s performance of services for the employer. However, injuries that the employee has caused deliberately, intentionally or willfully, under intoxication or during the commission of a crime are excluded from coverage.

A health condition that qualifies for protection under more than one statute may trigger inconsistent or contradictory employer rights and obligations under each of the statutes to which it may apply. In such a case, the employer must follow the statute that offers the employee the most protection, unless some legal authority allows the employer to do otherwise.

What kind of information is an employer allowed to obtain regarding the employee’s health condition?

1. ADA/FEHA (Disability)

An employer cannot require medical examinations and cannot make inquiries of the employee about the employee’s disability, its nature or severity, unless the examination or inquiry is job-related and consistent with business necessity. An examination or inquiry may thus be needed to address problems with an employee’s job performance or safety or to determine if an individual in a physically demanding job continues to be fit for duty. The scope of the examination, of course, must be limited to a job-related inquiry. In addition, if an applicant or employee requests an accommodation for a disability, and the accommodation is not obvious or the employer questions whether the accommodation is really needed, the employer may request documentation supporting the employee’s request.

Notably, the Equal Employment Opportunity Commission (EEOC) does not see a conflict between the ADA’s restrictions on disability-related inquiries and FMLA’s medical certification provisions. According to the EEOC, an employer is entitled to know why an employee, who otherwise should be at work, is requesting time off under the FMLA. If the inquiries are strictly limited in this fashion, the EEOC considers them job-related and consistent with business necessity under the ADA. An employer may keep a single confidential medical file containing both FMLA and ADA medical information.

Because it is a federal law, the ADA supersedes any state workers’ compensation law that conflicts with it. An employer may only make medical examinations and inquiries of an employee injured on the job if the injury appears to affect his or her ability to perform the essential functions of the job, or for purposes of providing a reasonable accommodation. When an employee released to return to work after an absence due to a work-related injury, the employer may only require the employee to have a "job-related" medical examination (fitness for duty certification), not a full physical examination, as a condition of returning to work.

In addition, whether or not an employee is disabled under the ADA, the employer may not lawfully inquire into an applicant’s workers’ compensation history before making a conditional offer of employment. However, after making a conditional offer, the employer may ask about an employee’s workers’ compensation history in a medical inquiry or examination, provided such an inquiry/examination is required of all applicants in the same job category.

2. FMLA

The employer may require an employee to provide a medical certification to support a request for leave for the employee’s own serious health condition. The medical certification verifying the serious health condition may include (1) the date the serious health condition began; (2) the probable duration of the condition; (3) the appropriate medical facts within the knowledge of the health care provider; (4) a statement that the employee is unable to perform the essential functions of his/her job; and (5) if for an intermittent leave for planned medical treatment, the date and expected duration of the treatment. If an employer has reason to doubt the validity of a medical certification, it may require a second opinion, the cost of which must be paid by the employer. Under certain circumstances, third opinions may be required.

Consistent with the ADA, the FMLA requires employers to treat all medical information concerning an employee as highly confidential, accessible to others only on a need to know basis, and to keep such information separate from the employee’s personnel file.

3. CFRA

The employer may obtain the same information allowed under the FMLA except that the employer cannot require that the certification identify the serious health condition involved. The employee may, however, at his or her option, provide this information.

4. FEHA (Pregnancy)

An employer may require a medical certification from employees who are affected or disabled by pregnancy or related-medical conditions only if it requires medical certifications of non-pregnant employees in similar situations. The certification should contain (1) the date on which the woman became disabled because of pregnancy or upon which the transfer became medically advisable; (2) the probable duration of the period of disability or need to transfer; and (3) an explanatory statement that, due to the disability, the employee is unable to work or perform essential job function(s) without undue risk or that, due to the pregnancy, a transfer is medically advisable. Employers must accept certification from the woman’s own health care provider and are not permitted to require the second or third opinion otherwise allowed by the FMLA and CFRA.

5. Workers’ Compensation

Because employers are responsible for compensating workers injured on the job, medical information is freely available to employers pursuant to California workers’ compensation law. For example, the law requires the physician to complete a Doctor’s First Report of Occupational Injury or Illness, which is provided to the employer or the employer’s workers’ compensation carrier, for all employees who are injured on the job and who are sent to a physician. The employee must also describe on this report how the illness or injury occurred. Employers are also responsible under the workers’ compensation law for monitoring an employee’s recovery from work-related injuries, and periodic medical reports are an essential element of this process.

What kind of leave of absence is the employer obligated to provide the employee, and what kind of compensation and benefits must it provide during the leave?

1. ADA/FEHA (Disability)

Flexible leave policies and leaves of absence are considered reasonable accommodations under the ADA. However, the length of the leave is limited by whether it imposes an undue hardship on the employer. Although the ADA allows an employer to deny a disabled employee’s request for a leave of absence based on "undue hardship" or because the disability can be accommodated in another manner, if the employee’s condition also qualifies as a "serious health condition" under the FMLA, the employer must grant the request. Further, leave longer than the 12-week FMLA leave is not automatically an undue hardship. In determining whether additional leave would constitute an undue hardship, the employer can include the impact on the employer’s operations caused by the 12-week FMLA leave.

Courts have held that indefinite leave is not a reasonable accommodation. See, e.g., Monette v. Electronic Data Sys. Corp., 90 F. 3d 1173 (6^th Cir. 1996) (rejecting plaintiff’s proposed accommodation that he be kept on unpaid medical leave indefinitely until another position opened up); Hudson v. MCI Telecommunications Corp., 87 F. 3d 1167, 1169 (10^th Cir. 1996) (agreeing that a "reasonable allowance of time for medical care and treatment may, in appropriate circumstances, constitute a reasonable accommodation" but that MCI was "not required to wait indefinitely for [plaintiff’s] recovery"); Myers v. Hose, 50 F. 3d 278, 283 (4^th Cir. 1995) (bus driver with diabetes and hypertension not entitled to unlimited leave to get conditions under control: "Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect. Rather, a reasonable accommodation is . . . most logically construed as that which presently, or in the immediate future, enables the employee to perform the essential functions of the job in question.").

Although the ADA does not require the employer to provide additional paid leave as a reasonable accommodation, the EEOC states that employers should allow the use of accrued leave, advanced paid leave, or leave without pay where this will not constitute a hardship. Employers need not continue benefits during an ADA-related leave. Of course, if the leave qualifies as an FMLA/CFRA leave, benefits must be continued for the first 12 weeks during the applicable 12-month period.

2. FMLA/CFRA

Eligible employees are entitled to 12 weeks of leave for qualifying events within a 12-month period, with a continuation of whatever health and welfare benefits the employer provides its working employees. There is no undue hardship defense. If an employee meets the eligibility requirements and complies with the medical certification requirement established and communicated by the employer, an employer must allow the employee to take the leave.

3. FEHA (Pregnancy)

A California employee who is disabled because of pregnancy or a related condition is entitled to a pregnancy disability leave (PDL) for the period of actual disability, up to four months. PDL need not be taken in one block of time or only after the birth of the child. It is available on an intermittent basis upon proper certification by the health care provider. The employee’s four-month PDL entitlement is measured by the number of days she would normally work within a four-month period.

PDL is separate and apart from the employee’s 12-week entitlement under the CFRA for child bonding leave. Thus the two types of leave run consecutively and not concurrently. CFRA child bonding leave is available to eligible employees after the baby has been born, even if the employee is still disabled. If the baby has not yet been born and the employee has exhausted her four-month PDL entitlement, the employer has the option of allowing her to begin CFRA leave but is not required to do so. Thus, the maximum leave entitlement surrounding pregnancy and childbirth is seven months, assuming that the employee is actually disabled for four months.

PDL is unpaid unless the employer pays for other temporary disability leaves. Moreover, employees may use sick leave or vacation time to continue their wages during PDL; the employer may require the employee to use sick leave but not vacation. Employers are not required to pay medical benefits for a PDL under the FEHA. If the employer and employee are both covered by the FMLA, however, the PDL and FMLA leaves will run concurrently. This means that the employer will be required to continue providing health benefits during the first 12 weeks (the FMLA portion) of PDL. They need not provide an additional 12 weeks of benefits under a subsequent CFRA "child bonding" leave.

4. Workers’ Compensation

California’s prohibition on discrimination against employees who have suffered a work-related injury confers broad rights to a leave of absence for recovery from such an injury. Although an employer is not obligated to grant an indefinite leave of absence and hold a position open indefinitely for an employee on workers’ compensation leave, it must proceed with extreme caution before deciding to terminate an employee on workers’ compensation leave. The injured worker’s position may be temporarily filled and, if the employer can establish "business necessity," the position may be permanently filled. At a minimum, the employer must grant leave for work-related injuries on at least as generous a basis as it does leaves for other reasons. Additionally, employers must be mindful to comply with the FMLA/CFRA, if either law applies.

The workers’ compensation law requires employers to provide injured workers with wage loss benefits during any period of temporary disability. This amount is based on a percentage of the worker’s wages at the time of his accident and subject to minimums and maximums established by law. Under California law, as well as the law of most other states, an injured worker generally remains entitled to receive wage replacement compensation throughout the period of disability. The employer, however, need not continue to provide health care and other insurance coverage (although it will be liable for the employee’s medical expenses) during leave not subject to the benefit continuation provisions of the FMLA or CFRA, although benefit continuation coverage at the employee’s own expense must generally be offered under COBRA.

For an employee to be eligible for reinstatement, his/her last leave before returning must be one for which reinstatement is guaranteed. Thus, for example, if a woman takes PDL for pregnancy disability, exhausts her four-month entitlement and then commences child bonding leave under the CFRA, her reinstatement rights will depend on the CFRA, not the FEHA, since her most recent leave was under the CFRA.

1. ADA/FEHA (Disability)

A disabled employee who is still able to perform the essential functions of his/her job is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship.

Where the ADA disability is due to a work-related injury, the employer cannot refuse to return an employee to work because it fears increased risk of re-injury and increased workers’ compensation costs. Instead, the employer must show that the employee poses a direct threat to herself or others. Of course, even if the employee does pose a direct threat in that particular position, the employer may have reassignment obligations, as set forth below. In addition, an employer may not require an employee with a disability-related occupational injury to be fully recovered and able to return to "full duty" before allowing her return to work. So long as the employee can perform the "essential functions" of the position, with or without reasonable accommodation, she must be allowed to return, unless the risk of substantial harm could not be reduced to an acceptable level with a reasonable accommodation. Again, since reasonable accommodation may include reassignment to a vacant position, the employer may be required to consider an employee’s qualifications to perform other vacant jobs, not just the job the employee held at the time of injury.

2. FMLA/CFRA

An employee returning from leave is entitled to return to the same or equivalent position. An equivalent position is a position that is virtually identical to the employee’s former position in terms of pay, benefits, and working conditions. 29 C.F.R. § 825.215(a). An equivalent position must have substantially similar duties, conditions, responsibilities, privileges and status. The employee must be reinstated to the same or geographically proximate worksite and return to the same shift or the same or an equivalent work schedule. Equivalent pay includes returning to a position averaging an equivalent amount of overtime.

What happens if, at the conclusion of an FMLA leave, the employee informs their employer that his/her serious medical condition is permanent? He may have a disability that prevents him from performing the essential functions of the job he held at the commencement of his FMLA leave, and there is no available accommodation. How do you reconcile the FMLA’s requirement of reinstatement to an equivalent position in this situation?

The FMLA assumes that an employee will be qualified to return to his position at the conclusion of the leave. If the employee is not so qualified, the regulations provide the following:

If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to reinstatement to another position under the FMLA. However, the employer’s obligations may be governed by the Americans With Disabilities Act (ADA).

29 C.F.R. § 825.214(b). Based upon this regulation, if an employee is not capable of performing the former or an equivalent job, the ADA’s reasonable accommodation requirements are to be followed, not the FMLA reinstatement requirements.

3. FEHA (Pregnancy)

Subject to narrow exclusions, an employee returning from PDL has a right to reinstatement to the same position and has the right to a written guarantee of reinstatement from the employer upon request. Reinstatement to a comparable position is permissible only in limited circumstances.

An employer may refuse to reinstate the employee to his/her original position if the employer can prove, by a preponderance of the evidence, either: (1) that the employee would not otherwise have been employed in her original position at the time the employee requested reinstatement as a result of legitimate business reasons unrelated to the employee taking a PDL or transfer; or (2) that the employer’s means of preserving the job or duties for the employee (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the employer’s ability to operate its business safely and efficiently.

Further, an employer may justify its refusal to reinstate the employee to a comparable position by showing, by a preponderance of the evidence, either: (1) that no comparable position is available or (2) that the employee took a pregnancy disability leave that did not qualify as an FMLA leave and filling the comparable position with the returning employee would substantially undermine the employer’s ability to operate safely and efficiently.

If an employee, at the expiration of a pregnancy disability, has taken a CFRA "child bonding" leave, the employee’s right to reinstatement is governed by the CFRA and not by the FEHA. Under the CFRA, the employer may reinstate the employee either to the same or to a comparable position.

4. Workers’ Compensation Laws

The courts have granted employees broad reinstatement rights following leave taken because of an industrial injury. They have interpreted Labor Code section 132(a)’s proscription on discrimination to require an employer to reinstate an employee following a leave due to an industrial injury, unless denial of reinstatement is necessitated by the realities of doing business. The burden of establishing such "business realities" is on the employer. The two principal situations in which courts have upheld terminations and/or refusals to reinstate industrially injured workers based on "business realities are where (1) the employee is permanently disabled from performing the job; and (2) no work is available that the employee can perform without the risk of re-injury or further injury.

Thus, an employer may be able to permanently replace an occupationally injured employee if the employee’s condition is deemed permanent and stationary and the permanent limitation is such that the employee is not able to perform his/her job. If an employer replaces an employee before then, the employer must be able to prove that "business realities" required the employer to do so. The employer’s burden of establishing business necessity may be difficult if no hardship results from temporarily filling the job or if other employees could have handled the injured worker’s job duties while he was temporarily disabled. Employers may try to defend themselves by the use of the "business realities" defense as similar to the ADA’s "undue hardship" defense.

1. ADA/FEHA (Disability)

Part-time or modified work schedules may constitute reasonable accommodations under the ADA. However, an employer need not provide such a schedule if part-time work is an undue hardship or a full-time schedule is an "essential function" of the position. The employer does not need to maintain the same level of benefits if it does not generally do so for part-time workers.

2. FMLA/CFRA

An employee is entitled to take FMLA/CFRA leave intermittently through a reduced schedule. The employee’s benefits must be preserved during reduced schedule leave. The employer must continue to pay its share of health insurance costs. An employee can remain on reduced schedule leave until he/she uses up his/her annual allotment of FMLA leave

3. FEHA (Pregnancy)

Employees may take Pregnancy Disability Leave intermittently or on a reduced work schedule when medically advisable, as determined by the woman’s health care provider. All such leave counts toward the four-month annual entitlement (and against any FMLA entitlement, but not CFRA). The employer may require a pregnant employee who is on intermittent leave or on a reduced work schedule to transfer into an alternative position. The alternative position, however, must have equivalent pay and benefits, the employee must be qualified for the position, and it must better accommodate recurring periods of leave than the employee’s regular job.

1. ADA/FEHA (Disability)

An employee may offer as a reasonable accommodation, a transfer to a vacant equivalent position or to a position that will be vacant within a reasonable amount of time. In general, reassignment should be considered only when accommodation within the individual’s current position would pose an undue hardship. The employer cannot unilaterally reassign an employee with a disability-related occupational injury without first trying to accommodate the employee in the position he/she held at the time the injury occurred.

If there is no such vacant, equivalent position, the employer may offer an employee a transfer to a position with a lower salary when no other reasonable accommodations would allow the employee to stay in his/her current position. The employer need not maintain the original position’s higher salary.

If there is no such lower paid, vacant position, the employer is not required to create a new position or "bump" another employee from his position.

2. FMLA/CFRA

Since FMLA and CFRA govern leaves of absence, not transfers, these issues do not typically come up under these statutes. However, an employer may require an employee to transfer to another position if the employee needs intermittent or reduced schedule leave and the position to which the employee is reassigned better accommodates the leave schedule.

The benefits and pay of the original position must be retained. The employee is entitled to reinstatement to the original position when the need for intermittent/reduced schedule leave ends.

3. FEHA (Pregnancy)

An employer must grant a pregnant employee’s request to transfer to a less strenuous or hazardous job or job duties when the employee’s health care provider certifies that the transfer is medically advisable and the employer can do so without undue hardship. The employer need not, however, transfer the employee into a position for which she is not qualified, create a new position, discharge another employee from a position to make room for the pregnant employee, or violate the terms of a union contract to do so.

In addition, the employer may require the employee to transfer temporarily to an alternative position if the employee takes PDL on an intermittent or reduced work schedule basis. The alternative position must have an equivalent rate of pay and benefits, the employee must be qualified for the position and it must better accommodate recurring periods of leave than the employee’s regular job. The temporary position does not have to have job duties equivalent to the employee’s regular position.

4. Workers’ Compensation

Employers must be cautious in transferring employees who have been industrially injured. Where the transfer is detrimental in some way, such as to a position with lower pay or benefits, it may constitute unlawful discrimination under Labor Code section 132a, unless the employer can demonstrate that the transfer was necessitated by "business realities." Such transfers are permissible under the "business realities" test, for example, where the employee could not physically perform the functions of the job held at the time of the injury.

1. ADA/FEHA (Disability)

Job restructuring or job modification is another form of reasonable accommodation under the ADA and may involve reallocating or redistributing the marginal functions of the job. However, the ADA does not require an employer to reallocate the essential functions of the job to accommodate an employee’s disability.

Thus, employers are not required to create a "light-duty" position for an individual with a disability unless the "heavy duty" tasks of the position are marginal and not essential to the job.

It may be a reasonable accommodation for an employer to reassign an employee to an existing, vacant light duty position on a temporary basis. However, be aware that if an employer assigns a disabled employee to a vacant light-duty assignment, it also must provide him/her with any reasonable accommodation necessary for him to perform the essential functions of the job. And, according to the EEOC, an employer "is free to determine that a light duty position will be temporary rather than permanent." Thus, an employer need not transform a temporary light duty position into a permanent one.

Accommodating employees with work-related injuries raises questions concerning the employer’s ability to "reasonably accommodate" otherwise qualified employees and applicants with disabilities. First, an employer must consider reassigning non-occupationally injured disabled employees to vacant light duty positions. An employer cannot maintain that reassigning such an employee to a reserved light duty position imposes an undue hardship simply by showing that it would have no other vacant light duty positions available if an employee became injured on the job and needed light duty. On the other hand, an employer need not create light duty positions for ADA-disabled employees, even when it does so for individuals with occupational injuries.

Second, the ADA’s focus on the essential functions of a job may complicate an employer’s ability to curtail absences due to a work-related injury and to contain compensation costs by bringing the injured worker back to his or her job on a modified or light duty basis. A problem may arise later if the employer refuses to hire a disabled applicant for the same job because the applicant could not perform the job’s essential functions. What are the job’s essential functions once an employer "accommodates" an injured worker by reducing the duties of that position? Are the pre-accommodation requirements of the job still the job’s essential functions? Or may a subsequent applicant for the position claim that the job’s reduced duties represent its truly essential functions and that the employer’s more demanding regular requirements are an unfair barrier to employing an otherwise qualified individual with a disability?

Unfortunately, there is no settled case law in this area and no clear answers to these very difficult questions. Much will depend upon the specifics of each case, including the size and resources of the employer, the size and complexity of the workplace in question, the nature and extent of the worker’s injuries, the nature and extent of accommodation made to the injured worker, the expected length of his or her disability and whether the injured worker will return to regular job duties within a reasonably short period of time. Indeed, the courts

do distinguish between an employer’s voluntary provision of temporary light duty assignments, which it has no duty to create as permanent assignments under the ADA, and its duty under the ADA to reasonably accommodate disabled employees.

Employers should continue to make use of job modification and light duty assignments as a way of getting injured workers back to work and containing workers’ compensation costs. However, employers must also recognize the ADA risks inherent in this approach and carefully select appropriate workers’ compensation cases for modified work/light duty assignments. They must differentiate between those workers’ compensation cases that are and are not appropriate for such accommodation. Employers must also be prepared to explain why and how those accommodations have not altered the essential functions of the injured worker’s position and why the accommodations made to the injured worker are not reasonable for later applicants for that position.

2. FMLA/CFRA

Under the FMLA, an employee is entitled to return to the same or equivalent position. There is no "undue hardship" or "business realities" defense. Indeed, an employee has the right to refuse a light-duty position (except in certain circumstances of intermittent leave) and remain on FMLA leave for the duration of her entitlement. Thus an employer’s attempt to return a temporarily disabled employee to work on a modified work program through the workers’ compensation system may violate FMLA if an employer requires an employee to take a modified work assignment. Therefore an employer cannot require the employee to return to work, penalize him or her for failing to come into work, or force the employee to accept a reduced or modified work program under the FMLA or CFRA.

In administering its workers’ compensation return-to-work programs, an employer must proceed cautiously. The Department of Labor’s Wage and Hour Division states that "if FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave entitlement, require the employee to take a job with a reasonable accommodation." This means that an employer may not enforce mandatory return-to-work programs until an employee has exhausted his or her FMLA entitlement. After that period, an employer can require an employee to return to work at some modified position, and the failure to so return could result in termination of the employee’s temporary disability benefits. It is important to note that, although an employer may not require an employee to accept a modified work program during the period in which he or she is entitled to FMLA, nothing prevents the employer from making it an option for the employee. These optional programs should, however, be administered in a consistent manner.

3. FEHA (Pregnancy)

The employer’s right to transfer an employee taking intermittent leave because of a pregnancy-related disability to an alternative position includes the right to alter the employee’s existing job to better accommodate the employee’s need for intermittent leave or a reduced work schedule.

4. Workers’ Compensation

The California Labor Code does not appear to mandate that employers create temporary light duty positions. However, employers generally use job modifications and light duty as cost-containment measures to get injured workers back to work at the earliest possible juncture. Also, Labor Code section 132a’s proscription on discrimination against industrially injured workers means that an employer may not treat industrially injured workers less favorably in assigning them light duty and may not refuse to place an injured worker who requests light duty in such an assignment unless justified by business necessity.

Footnotes

1. The ADA excludes from coverage persons who currently use drugs illegally (as opposed to those who are rehabilitated or in the process of rehabilitation), as well as persons with a number of behavioral disorders such as pedophilia and kleptomania.