Granted leave then never applied with State

J9JC · February 2005

We have an employee who we granted leave based on her telling us she needed it and had a Dr. letter to care for her son. We grated her the leave based on her applying for and being accepted for California's new Paid Family Leave program. We are not big enough to qualify for FMLA. EE has not applied with the state, they have received nothing and we are 4 weeks into a 7 week granted leave. Should we now contact her and tell her the state shows nothing and we grated her the leave based on her applying and if she is not going to we expect her back in the office? This is a problem employee for sure...

SMace · February 2005

You can start with this:

The California Paid Family Leave Law provides any individual who is unable to work due to the need to care for a seriously ill child, spouse, parent, or domestic partner or for the birth, adoption, or foster care placement of a new child up to six weeks paid leave per year. Employers with less than 50 employees are not required to hold a job for an employee who goes on paid family leave.

Even though the law says you don't have to hold her job, if you did give her reason to believe you were going to (anything other than stating your requirements in writing worries me) and then rescinded, you may have problems. I'm sure she could find an attorney for that scenario. If you do not have a written policy regarding this type of situation, I would develop one.

J9JC · February 2005

We never told her we would hold her job and I have several emails from her acknowledging she knows we do not have to hold her job. That was not really my question. If we don't require some from of documentation of reason for leave, then we could have employees who want a long vacation telling us they are requesting PFL and then never actually applying. Our policy says we need to see acceptance into the PFL program. So if she never applies and that was the premise we granted leave under, what rights does she have. If you get accepted in the PLF it is because a doctor says the leave is needed, if she never applies how do we even know it was a serious need for leave?

marc · February 2005

I don't know any of the detail regarding Californias PFL, but if you granted it subject to, what would happen if you quit paying? Perhaps she would get off her duff and get it done, then you could "catch up" the payments and be done with her.

HRinFL · February 2005

Send her a certifierd letter explaining the leave was approved with the understanding she was applying for the state PFL. Tell her she has five days (or a timeframe you think is reasonable) from receipt of the letter to show that she has applied for the PFL, or that you will consider the absences unexcused and subject to your attendance policy. Then follow your normal procedures if she failes to bring you the proper paperwork.

Gillian3 · February 2005

You may be mixing in PFL when you don't need to. For the benefit of those in other states, PFL is a payment made to employees who are off due to illness of family members. It applies to all employers and is paid for through 100% employee payroll deduction. The deductions are sent to the state unemployment office which administers the program, which consists primirily of an employee applying, the state verifying with the employer that the employee was given leave for a qualifying purpose and then paying the benefit.

You should separate your giving of leave to the employee and PFL. It is your prerogative to give or not give a leave to an employee based on family illness since you have less than 50 employees. You granted her a seven week leave based on a doctors note so you should honor that.

The PFL issue is between the employee and the state. If she fails to apply it has nothing to do with your company. It is similar to unemployment or SDI. The programs are available for use but sometimes employees don't apply and who knows why.

J9JC · February 2005

The EDD told me they only notify the employer that the employee applied, it is the doctor who determines if the leave is necessary. I agree with you though that it is a "transaction" between the EDD and the employee. At this point, I am just wondering for future, how we should make a decision on granting leave or not. Our thoughts were that if the EDD granted leave it was a serious enough reason to need leave, but if they did not, the employee should not be granted leave, and should either be at work or resign. So I don't see how we cannot make a judgement on granting leave or not before the employee even applies for PFL. Certainly we want to be sensitve to any employee who is ill or has an ill immediate family memeber, however we do not want to grant leave to anyone who has some percieved illness, or just wants some time off. It seems to me we have to make a judgement when they ask, as opposed to waiting for a doctor or the EDD decide the seriousness of the illness. Any ideas?

Gillian3 · February 2005

What most organizations do is to provide leave based on a doctor's note and have a policy which provides a maximum amount of leave - up to 3 months, six months or whatever and be consistent. Remember that you are subject to the Ca. Pregnancy Leave regulation which provides up to 4 months. A lot of Ca. employers decided to peg maximum leave at 4 months when that came into effect, just to keep things consistent. Trying to distinguish between those who have a real illness and those that just want time off is difficult. The doctor's note is the key - and sometimes doctors give time off when not really necessary, but challenging that won't get you anywhere.

J9JC · February 2005

That helps clear things up a bit, thanks. It is not pregnancy related so we don't have any concerns with that for this one.

Granted leave then never applied with State

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