California: What Employers should know about FMLA after the Wildfires
Taking Leave During and Following a Natural Disaster
The California wildfires have caused tragic results in life and property and still rage on. Unfortunately, these fires are destroying both homes and businesses. As with many other natural disasters before it, Americans have proved to respond quickly and compassionately during a natural disaster.
Still, for business owners, one of the biggest questions they have for their business is how to remain in compliance with employment laws during a natural disaster. One major question is often how the Family Medical Leave Act (FMLA) applies to a natural disaster like the wildfires.
Employees who want to take leave under FMLA as a result of wildfires:
FMLA doesn’t specifically provide protected leave for employees who want to take leave after a natural disaster.
In one court case, the courts have specifically ruled that FMLA is not for disaster related cleanup. However, FMLA use can be used for health issues or injuries caused or exasperated by the natural disaster.
As a result, it is vital that employers understand when and how employees can take leave.
First, employers can provide leave from their own employment policies even if the leave isn’t protected under FMLA or state law.
FMLA would apply when, as a result of the natural disaster, the employee suffers from mental or physical illness or injury that meets the definition of a serious illness. Injuries or illnesses would include any injury that includes at least 1 day’s stay in a hospital, hospice or residential care facility.
If an employee’s chronic health condition flares up as a result of the wildfires, and renders them unable to work, then FMLA would also apply. For example, an employee’s chronic condition of stress or anxiety may flair up and render them unable to perform their job.
Additionally, if an employee needs to care for an employee with a serious health condition, that would also qualify for FMLA use. This is true even if the need to care is created by the natural disaster.
For example, if one of an employee’s parents has diabetes. Then the employee may need to help administer the medication in the case of a loss of power. Further, employees may need FMLA time to help family members when their medical equipment isn’t working due to the conditions.
Lastly, employees are entitled to FMLA leave if they are injured from the natural disaster. These conditions could create partial disability and obligate the employer under the American with Disabilities Act (ADA). These conditions can also arise weeks or months after the natural disaster. One example of this is post traumatic stress disorder.
- When an employee’s chronic health condition is spurred by the natural disaster
- To help care for a family member with a serious health condition, even if care is needed because of the disaster
- When an employee is injured as a result of the natural disaster (can include emotional and mental health conditions such as PTSD)
Coordinating California FMLA during a Natural Disaster
California FMLA expands protected leave beyond what Federal FMLA allows. California FMLA allows employees to take time off to care for a family member’s serious health condition.
However, an employee who takes California FMLA following the wildfires to help care for one of these two family relationships would still have full FMLA leave available for other family relationships covered under the federal FMLA. This means that employees could have up to 24 weeks of protected leave following a natural disaster: 12 weeks for California and 12 weeks for Federal FMLA.
California FMLA and Federal FMLA require different forms for leave. Human Resource employees should ensure that the correct forms are being used when employees take leave and should communicate whether or not the leaves are running concurrently.
Other California Leave Provided During Natural Disasters
California law requires employers with 25 or more employees at the same location to provide unpaid time off of up to 40 hours for employees whose children’s school or child care location is closed due to a natural disaster. This is protected leave.
Additionally, employees who volunteer as emergency personnel must also be allowed protected leave during natural disasters. This includes employees who serve on volunteer fire departments or other emergency response units. The leave time does not have to be paid leave.
Employees who are currently on FMLA leave when disaster strikes
If an employee is already on FMLA leave when the natural disaster strikes, then there are two main factors to determining how FMLA leave applies.
Those factors are first, whether or not the business remains open and secondly, how long the business closes if it doesn’t stay open.
If the business remains open during and following a natural disaster, then any employees on FMLA leave continue to use FMLA leave.
However, the rules change if the business closes due to a natural disaster.
If an employer is closed for less than a week during or following a disaster, then employees still continue to use their FMLA leave. That’s because FMLA treats short term business closures the same as holidays. FMLA regulation provides that “the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.”
However, if the business closes for a week or more, then FMLA leave is suspended for employees currently on leave. FMLA regulations state that if a business is closed for more than a week for holidays, such as Christmas or school break, and employees are not expected to report for a week or more, that FMLA leave does not apply to employees already on leave.
That means that during the time in which the business is closed and employees are not expected to report for work, FMLA leave is suspended for employees on leave. Employers must treat these employees the same as other non-leave employees who are not expected to come in for work either.
- If the business closes less than 1 week because of the storm then existing FMLA still counts during that time of absence
- If the business is closed for more than 1 week due to the storm, then employees already on leave have their leave suspended until they would have been expected to return to work.
Steps for Employers
Managing FMLA guidelines during and after the wildfires can be tricky, but are not the only laws that employers must be aware of and compliant with. Unfortunately some employers lose required paperwork, time cards and other physical documentation of employee payroll, time worked and other employment information.
It is during natural disasters that employers often realize how vitally important it is to maintain electronic records such as SwipeClock provides as part of their timekeeping solutions.
Employers should work to prepare before a natural disaster to create policies for absences that will help to protect them and will inform employees of absence policies before disaster strikes. For employers already affected by a natural disaster, they should obtain as much information as possible regarding the FMLA request.
Employers should provide employees with all the required FMLA information and the medical certifications and allow employees to provide the documentation required that support their FMLA leave. Employers should ensure that the medical certification does cover the leave issues at hand and when information is missing, should follow up with employees for additional information.
Let SwipeClock Help
Businesses in California must be diligent to maintain employment compliance during and after any disaster. Fortunately SwipeClock’s software can store information remotely so that even when the employer’s physical premises are in danger, their time and attendance information is not at risk.
Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Medical Leave Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.
Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according to the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
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