Leave Laws Every Chiropractor Should Know

Whenever we bring up employment laws and related lawsuits that arise, our chiropractic clients often have two responses: (1) “I am a small employer and those laws don’t apply to businesses my size,” and (2) “my employees would never sue me.”  Unfortunately, both theories are misguided.  Most employment laws do apply to small employers, and employees – especially former employees – don’t hesitate to file suit for actual or perceived violations of the law, especially given the current economy.  One area where chiropractors often, albeit accidentally, run afoul of the law is employee leave requests.

What should a small chiropractic practice do when employees request time off?  Both California and federal law regulate leave requirements.  While small practices are not necessarily required to follow the more onerous guidelines laid out for larger companies, there are still requirements that small practices must follow in offering time off for their employees.

In California, practices with fewer than 50 employees in a 75 mile radius are exempt from both the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA).  This does not mean, however, practices are exempt from providing their employees with certain protections when they become pregnant, have a sick family member, or have religious or other medical needs that require them to miss work.  Below, you will find an overview of various California laws to which almost all chiropractic practices must adhere.

Vacation and Sick Leave

A practice is not legally required to provide paid vacation or sick leave to its employees.  In fact, a chiropractor could choose to provide no paid leave – though doing so might make it difficult to attract quality employees in a competitive market.  While there is no legal requirement to offer vacation time to an employee, if a chiropractor does decide to offer it, there are certain rules that apply.

Vacation Time

Vacation pay constitutes wages in California.  An employee cannot forfeit vacation pay once they accrue it.  Also, a practice must pay the unused vacation when an employee leaves.  Further, while a chiropractor may place a reasonable cap on vacation accrual, a “use it or lose it” policy that provides vacation earned can be taken away if the employee does not use it is illegal.

Sick Leave

While paid sick leave is not a requirement, California employees, even those working for small companies, are entitled to certain protections regarding time off to care for themselves or their family members in time of illness.  Further, if you do offer a form of sick leave certain laws are triggered of which a chiropractor should be aware.

Disability Leave

California and federal law both require chiropractors to provide an employee with a “reasonable accommodation” for a disability. A “reasonable accommodation” means an adjustment to the workplace that enables the employee to perform the job’s primary duties.  With regard to employee leave, examples of accommodations can include modifications to work schedules, leaves of absence, and telecommuting arrangements.  The reasonableness of an accommodation, however, depends upon an evaluation of the relative benefits and costs of the accommodation.  Many courts have held that attendance is an essential function of the job and that an employee who has frequent and unpredictable absences is not performing the essential functions. Similarly, courts have held that an individual who is frequently absent or tardy is not “qualified” to perform the “essential functions” with or without a reasonable accommodation. But, even if regular attendance is an essential function, the chiropractor must consider whether a leave of absence may be a reasonable accommodation under the circumstances. On the other hand, indefinite or prolonged leaves of absence are not required as an accommodation. The length of leave must be reasonable. A leave may be reasonable if the employee will likely be able to resume his or her duties after the leave is completed.  This area of the law can be particularly challenging because leaves often involve the interplay of different laws, including, the Workers’ Compensation Act, Fair Employment and Housing Act, Americans with Disabilities Act, the Family and Medical Leave Act, and California’s Pregnancy Disability Leave. Chiropractors should methodically and clearly address all employee requests for reasonable accommodations and document the interactive process. If the chiropractor provides a leave as an accommodation, it should clearly describe in writing for the employee and its files the basis for the leave and its expected duration.

Pregnancy Disability Leave

California law also requires that chiropractors with more than five employees provide pregnancy disability leave to employees.  Pregnancy disability leave allows a pregnant employee to take an unpaid leave of up to four months while she is disabled as a result of pregnancy, childbirth, or another related medical condition.  An employee is considered disabled if she is unable to perform one or more essential functions of her job due to her pregnancy or related health condition.  The employee may use any accrued leave her chiropractor makes available to temporarily disabled employees as part of her leave

“Kin Care” Leave

Chiropractors providing paid sick leave to employees for personal illness or injury, medical diagnosis or treatment, or for other medical reasons, are required to adhere to the provisions of Labor Code Section 233.  Under Section 233, employees are entitled to use up to half of their accrued sick leave benefits to care for a sick family member, including a child, parent, spouse or registered domestic partner.

All California chiropractors who provide sick leave to their employees are covered by this provision.  Any conditions or restrictions the chiropractor requires of its employees for their own sick time, such as medical certification or advance notice, apply to use of the benefit for family care.

Religious Accommodations

Many chiropractors don’t realize that they have a legal obligation to accommodate their employees’ religious beliefs and practices where reasonable.  Under California and federal law, chiropractors must attempt to reasonably accommodate an employee’s expressed religious-based conflict, unless that accommodation would result in substantial, undue economic hardship on the chiropractor.  Drawing a balance between a reasonable accommodation for the employee and undue hardship for the chiropractor is not an easy task.  A reasonable accommodation must neither unnecessarily disadvantage the employee’s terms, conditions or privileges of employment, nor impose undue hardship on the chiropractor.

This might include:

–          Offering a flexible work schedule,

–         Allowing employees to switch assignments with co-workers as needed,

–          Changing job assignments, or

–          Modifying workplace practices, policies and/or procedures.

A chiropractor will show that undue hardship exists if the proposed accommodation would impose more than a minimal cost to the chiropractor.  Additionally, courts have found undue hardship where the proposed accommodation diminishes workplace efficiency in other jobs, infringes on the other employees’ job duties or benefits, or impairs workplace safety.

Paid Family Leave Insurance

Paid family-leave insurance is available to all California employees who pay into state Disability Insurance.  Paid family leave insurance provides up to six weeks of benefits for individuals who must take time off to care for a seriously ill child, spouse, parent or domestic partner or to bond with a new minor child.  This program is available to part-time as well as full-time employees.  If an employee suffers a wage loss as a result of family-care leave they may receive benefits under this program, provided they are eligible.  Paid family leave insurance differs from the more stringent CFRA and FMLA requirements applicable to larger companies in that there is no requirement that a person’s position be held open while they are collecting paid family leave, though this may be covered by pregnancy disability leave discussed above.

Conclusion

As the adage goes, one must not be “penny wise and pound foolish”.  Chiropractic practices, no matter the size, must train their supervisors on how to recognize and properly respond to employee leave requests.  Not knowing the legal requirements of required leaves is not a defense. When warranted, doctors must not hesitate to contact legal counsel to ensure they are not about to step on a legal landmine for, in some cases, a ten-minute phone call to an attorney could save you thousands in legal fees and damages.

March 8, 2010

By:      Keith W. Carlson & Jehan N. Jayakumar