- How do I know if the leave that an employee is taking is considered Protected Leave?
Any leave that is associated with an injury, perceived or actual, temporary or permanent disability requires that an employer must consider a discussion with the employee about its obligations as to one or more of the following laws:
- Workers’ Compensation
- Family Medical Leave Act / California Family Rights Act
- Americans with Disability Act
- Consolidated Omnibus Reconciliation Act of 1985
- Am I required to give the same amount of leave to every employee who has a similar request?
The amount of leave you may be required to give depends on the reason for the leave of absence. For example, the Americans With Disabilities Act of 1990 (the "ADA"), or the California Fair Employment and Housing Act ("FEHA'') may require leave for employees who are ineligible for FMLA / CFRA leave, or additional leave to employees who have exhausted their FMLA / CFRA leave, as a reasonable accommodation for a covered disability. Of course, it is worth noting that the interactive process can be complicated and if it is not written down – it didn’t happen!
- Am I required to give “paid or unpaid leave” for all reported work-related injuries?
Any leave that is associated with an injury, perceived or actual, temporary or permanent disability requires that an employer must consider a discussion with the employee about its obligations as to Workers’ Compensation, the Family medical Leave Act, the California Family Rights Act, the Americans with Disability Act, and the Consolidate Omnibus Reconciliation Act. Each of these laws require different reasons for giving leave. For example, for Workers’ Compensation, an employer must give job protected leave to an employee and has an injury that is considered a qualifying condition. Exhausting the PSL and vacation pot that employees have accrued is another pitfall for many employers. Can we force the employee to take all of their accrued vacation and PSL if they are out on leave? The answer depends on several factors.
- Am I obligated to tell my employees the different kinds of leave they can take?
Employers must provide employees with general notice about FMLA/ CFRA and display a general notice about FMLA/ CFRA (i.e. a poster) summarizing the major provisions of FMLA/CFRA and telling employees how to file a complaint. Both federal and state agencies (DOL and DFEH in California) make available free posters for employers. The posters must be displayed in a conspicuous place where employees and applicants for employment can see it. The posters must be displayed at all locations even if there are no eligible employees.
- What to do when UFW enters your fields and takes access under the guise of a COVID related compliance issues?
Access is provided under the Agricultural Labor Relations Act with regulations allowing for limited time, place, and manner access by union organizers as set forth below in the Access Cheat Sheet. With the Access regulation however, if the UFW attempts to take access for the stated purpose of vaccinations (as they have advertised along with other social justice groups this week), a Grower or FLC may bar such access as it clearly has no organizational purpose.
Another wrinkle concerns the H-2A Housing units or housing in general: Growers and H-2ALC’s operating labor camps should be ready with a plan and put in place reasonable restrictions for visitors and access to the housing units. The law relative to employee housing on Access provided under the ALRA regulation is a bit murky. However it is clear that where the living situation is not akin to one's own home or apartment, and where exercise by one tenant of "control" over his or her "home life" by inviting visitors into the communal bunkhouse will inevitably impinge on the right of others in the group living situation to exercise control over their "home life," reasonable time, place, and manner restrictions may, where appropriate, exclude visitors from a communal bunkhouse.
Indeed, a grower/labor camp operator charged with the duty to maintain order in its group housing facilities must of necessity make reasonable time, place and manner restrictions on visitation. On top of all of this we are still under COVID protocols, so barring or limiting access should absolutely be planned for as part of operating housing units. Also remember that zero access to quarantine housing should also be implemented.