California Risks Reputation as Leading Leave Haven

By Marti Cardi, VP Product Compliance

full_mod_vetoCalifornia is often commended – or condemned? – as the nation’s leader in rights for the state’s workers. Indeed, in late September California Governor Jerry Brown signed a bill requiring employers to give notice to California employees of their rights if they are a victim of domestic violence, sexual assault, or stalking.

However, at the same time he vetoed two bills that would have expanded the rights of employees under the California Family Rights Act (CFRA).  What, you say?  In California?  Yes, apparently there are limits.

Enacted:  Mandatory Notice to Employees of Leave Rights. Effective January 1, 2017, employers with 25 or more employees must inform each employee in writing of his or her rights established under the two Labor Code sections cited below. The information must be provided to new employees upon hire and to other employees upon request. However, the law also directs the Labor Commissioner to develop by July 1, 2017, a sample form that employers can use to comply with the new notice requirement.  Employers are not required to comply until the Labor Commissioner posts the form on the Commissioner’s website.

The new law amends two current laws (CA Labor Code §§ 230 and 230.1), which allow victim employees to take time off from work for the following purposes:

  • To seek medical attention for injuries caused by domestic violence or sexual assault.
  • To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence or sexual assault.
  • To obtain psychological counseling related to an experience of domestic violence or sexual assault.
  • To participate in safety planning and take other actions to increase safety from future domestic violence or sexual assault, including temporary or permanent relocation.
  • To obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.

The current laws also make it unlawful for employers to discharge, threaten with discharge, demote, suspend, or in any manner discriminate or retaliate against victims of such crimes in the terms and conditions of employment by his or her employer because the employee has taken time off for those purposes.  Leave for the first four reasons listed above is limited to the 12 weeks provided by the federal Family and Medical Leave Act (FMLA) even if the leave reason is not covered by FMLA.  For example, if an employee has already taken 9 weeks of FMLA time, he or she will be limited to 3 more weeks of leave for the first four reasons above in the specific leave year.  Leave for the reasons described in the last bulleted paragraph (obtaining protective court orders) is not similarly limited.

Also in late September, California Governor Brown vetoed 2 bills that would have expanded employees’ rights under the California Family Rights Act (CFRA).

Vetoed:  Parental leave for employees of smaller employees.  Governor Brown vetoed SB 654, which would have provided up to 6 weeks of job-protected unpaid parental leave to eligible workers employed by companies with 25-49 employees.  Currently the California Family Rights Act (CFRA) requires companies with 50 or more employees to provide up to 12 weeks of job-protected unpaid leave to eligible employees.  The proposed law would also have required the continuation of health care benefits during the leave.

Vetoed:  Expanded CFRA definition of “family member.”  Another bill vetoed by Governor Brown (SB 406) would have amended CFRA by expanding the definition of “family member” for which California employees can take leave when the family member has a serious health condition.  The bill would have added leave rights to care for the employee’s grandparent, grandchild, sibling, domestic partner, or parent-in-law.  The bill also would have removed the age restriction on the definition of “child” so that employees could take CFRA time to care for an adult child with a serious health condition even if the adult child does not have a disability.

None of these relationships is covered under the FMLA.  As a result, an eligible employee would be able to take up to 24 weeks of leave per year in some circumstances.  For example, when leave is first taken to care for a family member not covered under FMLA such as a sibling or grandparent, the leave would not count against the employee’s 12 weeks of FMLA entitlement, which would still be available for use if the employee meets the eligibility requirements at the beginning of the requested leave.

A few states with family and medical leave laws allow this anomaly to occur due to their broader definition of a “family member” for whom an employee can take leave:

  • California: by regulation, includes domestic partner in the definition of spouse
  • Colorado: provides for FMLA-like leave rights to care for a civil union partner with a serious health condition
  • District of Columbia: family member includes a person to whom the employee is related by blood, legal custody, or marriage; and a person with whom the employee shares or has shared, within the last year, a mutual residence and with whom the employee maintains a committed relationship (thus, covering many more family and personal relationships than the FMLA)
  • Hawaii: civil union partners, reciprocal beneficiaries, parents-in-law, grandparents (including grandparents-in-laws)
  • Maine: siblings (when mutually committed to supporting one another), domestic partners; no age limit on “child”
  • New Jersey: civil union or domestic partners
  • Oregon: civil union or domestic partners, parents-in-law, grandparents, grandchildren
  • Rhode Island: civil union partners, parents-in-law; no age limit on “child”
  • Vermont: civil union partners
  • Washington:   civil union partners, parents-in-law, grandparents
  • Wisconsin: domestic partners, parents-in-law (including the parent of a domestic partner)

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at

click to comment

What Employers Need to Know about Caregiver Protections under the ADA, FMLA, Title VII… and in California

By Marti Cardi, VP Product Compliance

iStock_000052530906_35187812_caregiverWith many employees living life as the “Sandwich Generation,” job protections for family caregivers are becoming ever more important.  An August 18 blog post from the US Department of Labor highlights the issue in part by taking a brief look at paid leave programs in 3 states and job protection under the Family and Medical Leave Act.

Many employers don’t realize the extent of job protections for family caregivers.  Here I will take you on a quick tour of these workplace rights.  In October I will have the pleasure of presenting this topic in depth at the annual HRSouthwest conference in Ft. Worth.  To my knowledge this will be the first presentation of its kind, addressing the many sources of protection and what employers need to do to ensure compliance.  Here is a quick summary to whet your appetite!

Family and Medical Leave ActThis is no surprise to those of you familiar with the FMLA.  This federal law provides up to 12 weeks of job protected leave of absence per leave year for an employee to care for a family member with a serious health condition.  Several states have similar laws – including California, Colorado (limited to domestic and civil union partners), Connecticut, District of Columbia (OK, that’s not a state), Hawaii, Maine, Maryland, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.  In addition, even more states have protected leaves of absence for pregnancy disability (a kind of family care, right?) and bonding.  The FMLA and most state family leave statutes also prohibit retaliation against employees who seek to exercise these leave rights.

Americans with Disabilities ActDid you know that the ADA protects employees who have family members (or other close individuals) with disabilities?  The “association provision” of the ADA prohibits employment discrimination against a person because of his or her known relationship or association with a person with a known disability.  This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the applicant or employee has a relationship or association.  For example, an employer cannot terminate an employee because her husband (or best friend or roommate or…) has been diagnosed with cancer and the employer is concerned the employee will miss time from work to care for her husband and take him to medical treatments.

Title VII of the Civil Rights Act of 1964.  This statute is best known for its workplace protections against discrimination, harassment, and retaliation for members of protected classes (e.g., race, sex, religion, national origin).  However, there can be circumstances where, because of an employee’s protected classification, he or she is discriminated against due to caregiver responsibilities.  Here are some examples:

  • Denying a woman with young children an employment opportunity that is available to men with young children.
  • Denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver.
  • Reassigning a woman to less desirable projects based on the assumption that, as a new mother, she will be less committed to her job.

Paid Family Benefits/Leave Laws.  A recent trend in workplace benefits is toward pay for workers who take time off to care for a family member or to bond with a new child.  California, New Jersey, and Rhode Island each mandate a pay benefit during leaves of absence taken for these reasons.  New York will join the field in 2018.  And effective January 1, 2017, San Francisco will require employers to top off the California paid parental leave benefit to equal 100% of the worker’s base salary (subject to some limitations).  Many of these laws provide paid leave benefits but not job protection during the leave; however, most employers treat the time off as job-protected and restore the employee to his/her position following the paid leave.

California Fair Employment and Housing Act.  I’ve saved the best for last.  It may be that, in California, an employer has a duty to provide an accommodation to an employee associated with an individual with a disability – not just refrain from discriminating against the employee because of the family member’s disability.  The CA FEHA provides worker protections similar to the ADA (among many other things).  One little-known FEHA provision was recently put to the test in Luis Castro-Ramirez v. Dependable Highway Express.  In this case the California court of appeals ruled that an employee with a son who required dialysis on a scheduled basis was entitled to an accommodation under FEHA to meet his son’s dialysis needs.  The ruling was based on the language of the statute which defined a physical disability to include an employee who is associated with a person who has, or is perceived to have, a physical disability.  Examples include, as in this case, time off from work to provide required medical care or transportation to appointments.

More to comeStay tuned here for more information as Matrix develops further information on protections for employees who are family member caregivers.  Let me know if you have questions or ideas that you would like to have addressed.  This is an important topic for a sizable portion of the US workforce.  We want to help keep you on the cutting edge.

My topic at the HRSouthwest conference will be “Employers: Beware of Caregiver Protections!” Tuesday, 10/18/2016 1:30pm – 3:00pm.  Please join me!

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at

click to comment

Lowe’s to pay $8.6 million in yet another EEOC case involving inflexible leave policies

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director, Compliance & Employment LawCartoon Animal Eyes Under Big Stone

Employers, if you haven’t fixed this issue yet, get out from under that rock!

If an employee with a disability exhausts leave time provided by company policy or by a law such as the FMLA, you have two obligations.

First, consider even more leave as a reasonable accommodation. 

Second, consider reasonable workplace accommodations to allow the employee to return to work

It’s that simple.

As announced by the EEOC on May 13, 2016, home improvement giant Lowe’s has agreed to pay $8,600,000 to affected employees as part of a consent decree entered into with the EEOC in a federal district court in California. The EEOC claims that Lowe’s violated the ADA by terminating employees with a disability after failing to provide them reason­able accommodations when their medical leaves of absence exceeded Lowe’s 180-day (and, subsequently, 240-day) maximum leave policy.

And it’s not just about the money.  The consent decree agreed to by Lowe’s in this case includes some very typical additional requirements, all enforceable by court order.  The four-year consent decree settling the suit requires that Lowe’s:

  • Retain a consultant with ADA experience to review and revise company policies as appro­priate;
  • Implement effective training for both supervisors and staff on the ADA;
  • Develop a centralized tracking system for employee requests for accommoda­tion;
  • Maintain an accommodation log;
  • Post documentation in its workplaces related to the settlement; and
  • Submit regular reports to the EEOC verifying compliance with the decree.

Thus, Lowe’s ends up not only paying the agreed-upon amount of damages, but also incurs significant expenses (for example, attorneys’ fees) and business disruptions during the EEOC’s investigation and in complying with the terms of the consent decree for four years.

Two types of policies are on the EEOC’s radar.  An employer’s obligation to provide more leave than offered by company policies or required by law has received much recent attention.  Why, just this month the EEOC released a new Resource Document entitled Employer-Provided Leave and the Americans with Disabilities Act.  While the Resource Document did not break any new ground (no, the EEOC still won’t say how long a leave can be before it becomes an unreasonable accommodation), it does pull together in one handy place all existing EEOC guidance on the issue, including assessment of extra leave as an undue hardship.  Our blog post on the Resource Document can be found here.  Meantime, the EEOC is focusing on the following:

Maximum or inflexible leave policies (sometimes referred to as “no fault” leave policies) take many different forms.  A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both continuous and intermittent leave.  Some employers not covered by the FMLA set lower overall caps. Others tie the maximum leave to the duration of short-term disability benefits.  Any inflexible cap may result in an ADA violation because it does not allow for the interactive process and individualized consideration of whether additional leave or some other reasonable accommodation will enable the employee to return to work.

100% recovered or healed policies are those that require an employee with a disability to have no medical restrictions – that is, be “100%” healed or recovered – before returning to work.  These also have huge potential to violate the ADA because the employer does not engage in the interactive process to discover whether the employee can perform essential functions with on-the-job reasonable accommodation(s).

Lots of companies got it wrong in the past.  Many employers have been the subject of EEOC investigations and, ultimately, a pricey consent decree.  Here are some of the bigger-ticket resolutions:

Company Date Amount Policy /Practice in Violation of ADA
Lowe’s 2016 $8.6 million Terminating employees whose need for medical leaves of absence exceeded Lowe’s maximum leave policy (180 days, subsequently 240 days)
Pactiv LLC 2015 $1.7 million Assessing attendance points for medically-related absences; not allowing use of intermittent leave or extension of a leave of absence as an ADA reasonable accommodation
Princeton HealthCare System 2014 $1.35 million Limiting medical leave of absence to maximum of 12 weeks:

  • employees FMLA-eligible terminated after 12 weeks\
  • employees not FMLA-eligible terminated after short absence

Requiring certification of 100% recovery upon return to work rather than considering return to work with a reasonable ADA accommodation

Dillard’s 2012 $2.0 million
  • Maximum-leave policy limiting the amount of medical leave an employee could take
  • Policy requiring all employees to disclose personal and confidential medical information in order to be approved for sick leave
Interstate Distributor Co. 2012 $4.85 million
  • Limiting medical leave of absence to maximum of 12 weeks
  • Requiring certification of 100% recovery upon return to work rather than considering return to work with a reasonable ADA accommodation
 Verizon Communications   2011  $20 million Failing to make exceptions to “no fault” attendance plans for individuals with disabilities as an ADA accommodation
 Supervalu, Inc., Jewel Food Stores, Inc. etc.  2011  $3.2 million Terminating employees with disabilities who were not 100% recovered at the end of medical leaves of absence rather than considering return to work with a reasonable ADA accommodation
 Sears, Roebuck and Co.  2009  $6.2 million Terminating employees following exhaustion of workers’ compensation leave without engaging in the interactive accommodation process to consider workplace accommodations or leave extension as an accommodation

PINGPings for employers:  We provided pointers for employers in our last blog post so we won’t repeat, but given the size of the potential price tag we suggest that you go back and read again.

MATRIX CAN HELP! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our services.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.


click to comment

Illinois Passes Child Bereavement Leave Act – Second after Oregon to provide bereavement leave

By Marti Cardi, Vice President – Product Compliance

Illinois has passed a law to provide job-protected bereavement leave upon the death of an employee’s child.  The law became effective on July 29, 2016, when it was signed by Illinois governor Bruce Rauner.

The new law provides up to 2 weeks of leave upon the loss of a child.  Many of the parameters of the leave incorporate or mirror the federal Family and Medical Leave Act.  Here are the main provisions of the new law:

Definition of “child”:  Biological, adopted, or foster child, stepchild, legal ward, or the child of a person standing in loco parentis. This mirrors the definition of “son or daughter” under the FMLA, except it does not contain the limitation that the child must be under the age of 18.

Eligible employees:  As defined by FMLA; currently, employees with 12 months of service and 1250 hours worked in the 12 months prior to the leave, and who work at a site with 50 or more employees within 75 miles.

Covered employers:  As defined by FMLA; currently, employers with 50 or more employees.

Length of leave:  2 weeks (10 working days).  The leave must be completed within 60 days after the employee receives notice of the child’s death.  In the event of the death of more than one child, the employee may take up to 6 weeks of bereavement during a 12-month period.

Relationship with FMLA:  Time off under the Illinois bereavement law does not count toward an employee’s FMLA usage because it is not a covered leave reason. However, the law specifies that an employee is not entitled to more unpaid leave than is provided by the FMLA.  This means that if an employee has already used 12 weeks of FMLA in a leave year, the employee will not thereafter be able to take bereavement leave under the act.  On the other hand, if an employee first takes time off under the Illinois bereavement law, the employee will still have his/her full 12 weeks of FMLA (less any time previously used in the leave year) because the bereavement leave cannot reduce an employee’s FMLA leave entitlement.

Reasons for leave:  Bereavement leave may be used to:

  • Attend a funeral (or funeral alternative) of the child;
  • Make arrangements necessitated by the death of the child; or
  • Grieve the death of the child.

Employee notice:  The employee must provide at least 48 hours’ advance notice of intent to take bereavement leave, unless such notice is not reasonable and practicable. 

Documentation:  The employer can require reasonable documentation, such as a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

Use of other leave rights:  The employee may elect to substitute other leave rights for the bereavement leave (e.g., PTO, sick time, vacation, etc.).  This would enable the employee to receive pay for the time off.

Other employment protections:  The Act prohibits the employer from taking adverse action (such as termination) or retaliating against an employee for taking or attempting to take bereavement leave or for supporting the exercise of rights by another employee.

Enforcement:  The Illinois Department of Labor has authority to receive complaints and to enforce the new law.  An employee may also file a civil action directly in court without first complaining to the Illinois DOL.

Efforts to pass a federal bereavement leave law
The FMLA does not provide leave for bereavement following the loss of a family member.   In recent years there have been efforts to expand FMLA leave rights to include time off for bereavement due to the death of a child.  Most notably, the Parental Bereavement Act was introduced in Congress in the summer of 2011, due to the efforts of two fathers who lost children. The law was reintroduced in 2013 and 2015, so far with no success.

Oregon’s family member bereavement leave
The state of Oregon added family bereavement as a leave reason under the Oregon Family Leave Act (OFLA) effective January 1, 2014.  This law is broader than the new Illinois law, in that it provides leave due to the death of a wide array of family members:  spouse, domestic or civil partner, child (broadly defined as in FMLA), parent, grandparent, grandchild, or parent-in-law.

Otherwise, the Oregon law is very similar to the new Illinois law.  The OFLA bereavement leave reasons are identical to the Illinois leave reasons outlined above.  OFLA provides up to 2 weeks of bereavement leave per family member death in a 12-month period, up to the total available OFLA leave (12 weeks less any time used for other purposes within the 12 months).  The leave must be completed within 60 days of notice of the death.

MATRIX CAN HELPMatrix Absence Management is prepared to manage the new Illinois child bereavement leave law.  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at


click to comment

Light Summer Reading from the Department of Labor

By Marti Cardi, VP-Product Compliance
Back in April the U.S. Department of Labor unveiled its new Employer’s Guide to the Family and Medical Leave Act.  (Our report is here.) The Guide was released to coincide with the annual FMLA/ADA Employer Compliance Conference hosted by Disability Management Employer Coalition in Pittsburgh.  Helen Applewhaite, FMLA Branch Chief for the DOL, announced the Guide to attendees in opening remarks. Then Ms. Applewhaite and I co-presented on some tough FMLA issues (2nd/3rd opinions, anyone?), and presented parts of the Guide as a resource for employers.

Now the DOL has released a blog post, “What Employers Need to Know About the Family and Medical Leave Act,” more formally introducing the Employer’s Guide to the rest of the employer community.  The post has a short introductory video and a link to download or order copies of the Guide.  It also has links to the Matrix blog post and my friend Jeff Nowak’s blog announcing the introduction of the Employer’s Guide at the DMEC conference.  Thanks to the DOL for the nod!

If you haven’t yet reviewed the Employer’s Guide, you should.  It doesn’t answer all the difficult FMLA questions we encounter, but it does provide an easy-to-read, non-legal resource for employers.

While you’re at it, also take a look at the Family and Medical Leave Act Employee Guide.  This concise booklet can serve as a great training and reference tool for your employees.  What do I like about it?  The Employee Guide doesn’t just explain employee leave rights under the FMLA; it also advises employees of their obligations if they want to benefit from FMLA leave.  FMLA is a two-way street, with both parties – employer and employee – having rights and obligations.

Happy beach reading!

Matrix Can Help!  Even with the new Employer’s Guide, managing FMLA leave remains a tricky and complicated business.  Add various state leave laws, the Americans with Disabilities Act, worker’s compensation and company policies, and you have a perfect storm of challenging employee rights. At Matrix we are experts in these state and federal laws. We specialize in understanding how they work together and in monitoring developments so you don’t have to. For leave management and accommodation assistance, contact us at

click to comment

Breaking news! Matrix’s new experience data provides the first clear snapshot of employers’ ADA exposure

By Marti Cardi, VP-Product Compliance

I am proud to announce that Matrix has unveiled the first credible benchmarking and data analysis of employer experiences related to the Americans with Disabilities Act (ADA). The data is important for three reasons:

  • As a way to benchmark the experience of specific employers who manage ADA leave and accommodation requests
  • As a means of assessing the potential exposure of those who don’t
  • As an illustration of the reach of ADA, including the expansive Amendment Act (ADAAA) of 2008.

“Matrix is unique in the market with comprehensive, statistically validated data and the expertise to recommend policy and practice,” Ken Cope, president of Matrix, said. “While ADA compliance is among the fastest growing concerns of employers across the board, there is precious little objective information and guidance on how to navigate the legal, operational and productivity implications. Our early leadership has created the industry’s first body of knowledge from which employers can anticipate, model and improve their organizations’ management of ADA issues.”

The statistical analysis is based on a review of more than 4,300 accommodation requests collected over a time period of at least 12 months from employers representing a universe of 120,000 employees. Matrix will continue to expand this data as we manage ADA accommodations for our ever-increasing slate of clients over time.

“A-hah!” findings Previous Matrix research revealed two of three responding employers did not even track ADA accommodation requests. The new data underscores not only the status of ADA compliance, but the scope of the challenge itself.

Some of the insights provided by the new Matrix benchmark analysis include:

  • Accommodation request incidence per 100 employees, by age, gender and work status (e.g. exempt or non-exempt)
  • Accommodation request types, leave vs workplace accommodations
  • Accommodation request outcomes
  • Correlation with other types of employee absences, e.g. FMLA, workers’ compensation, disability

According to Cope, one of the most valuable things we learned is that employee disability incidence is consistently being understated. Statistics show that approximately one in five individuals have a “disability” covered by the ADA – but employer experience showed far fewer employees requesting workplace accommodations.  Without a good system to receive accommodation requests and manage the interactive process, employers are overlooking many employees with disabilities and inviting the scrutiny of the ADA enforcement watchdog, the EEOC. In addition, fully half – 52 percent – of all accommodation requests are unrelated to employee leave, meaning any platform or management approach that addresses only leaves is missing the boat, and potentially doing more harm than good.

During the relatively short time data has been collected and analyzed, a key metric has changed, according to Cope: “In the very beginning we counted accommodation requests as the primary indicator of volume and organizational impact,” he said. “We quickly found out a more meaningful metric is ‘events,’ the precipitating cause of an accommodation, which often results in multiple requests, both leave and workplace-related. This was an early ‘a-hah!” moment,’” he said.

Highlights of the Matrix analysis and copies of the company’s whitepaper, ADA Accommodation Data: An Inaugural Benchmark Analysis, will be available at the Disability Management Employer Coalition (DMEC) annual conference in New Orleans July 18-21.

click to comment