Benefits for Employees on Disability Leave

The following article is courtesy of the California Chamber of Commerce web site (www.calchamber.com).  This brief article gives information about employees job protection and benifits while on pregnancy disability and work-related disability leave.

February 9, 2007

Labor Law Corner

Sunny Lee Senior Labor Law Consultant

We have an employee who is out on disability leave. What job protection and benefits do we need to continue?

The first question regarding job protection requires a review of applicable federal and state leave laws that may apply to the employee.

Pregnancy Disability

If the employee is disabled, according to her health care provider, due to pregnancy, childbirth or related medical condition, there is job protection for up to four months or 88 working days.

There is no limitation on the number of pregnancies that may occur in one year, nor is there a requirement that an employee work a period of time before the protections apply. Pregnancy disability leave protection applies from the first day of employment.

Work-Related Disability

If the disability is work related, job protection applies from the first day of employment and continues until that employee is released to return to work. Disabilities also may be protected under the Americans with Disabilities Act (ADA) and the state discrimination protection, and/or the federal Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA).

For an analysis of those rights and protections, particularly when an employer would consider terminating an employee, the employer should consult with legal counsel.

Benefits

Benefit continuation is required only if the employee is eligible for FMLA or CFRA leave or if the benefit is provided by the employer’s policy or practice. Under FMLA/CFRA, health benefits are required to be continued by the employer for 12 weeks, and on the same basis as if the employee were not on leave.

No law requires that an employer continue the accrual of sick leave or vacation time or offer paid holidays. Those benefits are controlled by employer policy and/or practice.

Although vacation and sick leave would continue to accrue whenever an employee is using paid time, most employers cease accruing vacation and sick leave when paid time is exhausted and the employee is not working.

Many holiday policies require that the employee work the day before and after a holiday in order to be paid for the holiday. In addition, many holiday policies explicitly state that holidays are not paid when they occur during a leave of absence.

If an employer has not addressed these issues in advance of a leave, an employee may expect that these benefits continue as well.

Exercise Caution

Because an employer often may be dealing with a situation involving multiple employment laws, the employer should analyze circumstances carefully before making any employment decisions concerning an employee who is off work for medical reasons.

For additional information on leaves of absence, consult Leaves of Absence in California, available at CalBizCentral, or the Time-Off Library on HRCalifornia.

The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Comments

[shannon jenkins]

If the alleged discrimination is institutional and you are not in a position to fund expensive litigation, I would recommend that you file a claim with the Department of Fair Employment and Housing or the EEOC for age/disability discrimination. They will investigate it and be in a better position to command the business to provide large scale statistical data with respect to which an analysis can be undertaken. If disparate impact on a particular protected class is uncovered, then they can mediate it or prosecute it for you.

[qs92653]

Here's the basic situation:

1) An employee has health benefits.
2) The employee and his/her spouse are in their 50s, presumably protected from age discrimination.
3) The spouse has heavy medical expenses, typically costing more than $100,000 per year.
4) The employer has thousands of employees.
5) The employer is suspected of trying to control healthcare expenses by fabricating excuses to fire the employees for whom they are paying excessive healthcare claims.
6) The pattern is not specifically intended to discriminate against age, HOWEVER age and healthcare are generally related.
7) Because the employee count is large, the potential exists to establish a statistical pattern.

THEREFORE, what's the best way to proceed against this indirect form of age discrimination?