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January 31, 2006 > Watercooler Counsel

Watercooler Counsel

Telework Woes

by Rich Proulx

Q: An employee came to me with a request to work from home because of his disability. His reason is that he has a lot of doctors' appointments and his doctors live near his house. Do I have to let him work from home? We have a lot of informal conversations about projects throughout the day and I am concerned that communication will suffer if this employee is working at home.
-Harried Henry
Fremont, CA

A: I'm sure it comes as no surprise to you that employees with disabilities have a right to a reasonable accommodation. Before providing a reasonable accommodation there should be an interactive process. Open up a dialogue with your employee and explain your concerns and ideas. Ideally, you'll find a solution that works best for both of you. The bottom line is a reasonable accommodation is not necessarily the accommodation that the employee prefers. In this situation, there may be other reasonable accommodations besides telecommuting that would allow your employee to attend his doctors' appointments. For example, a reasonable accommodation might be to provide
leave to allow the employee to go to his doctors' appointments.

Paid Pregnancy Leave

Q: Am I required to pay an employee benefits or salary while she is on pregnancy leave? I think this employee is going to stay home and not return to work. Do I have to hold their job open for her and if so, for how long?
-Checking in Chico

A: There is no requirement for an employer to provide paid pregnancy leave to an employee. However, you need to treat the pregnancy disability like other disabilities. If you generally provide paid leave to employees who are on disability leaves, then you need to provide this for your employee on Pregnancy Disability Leave (PDL). In either case, an employee does have the right to use any paid leave that they have accrued such as sick time or vacation time.

Under California law, an employee can take up to four months (88 days for full-time employees) for actual disability caused by pregnancy, childbirth or related medical conditions including prenatal care, severe morning sickness and doctor ordered bed rest. The PDL applies to all California employers, regardless of size. The California Family Rights Act (CMRA) also provides leave for employees. Generally, this applies to employers with 50 or more employees and employees who worked an average of about 25 hours per week per week for a year. These employees may take up to 12 weeks of leave per year for a birth, placement of a child due to adoption or foster care, or to care for a dependent child. As with PDL, the employer is not required to provide paid leave, however employees can chose, or employer require, that the employees use the paid leave that they have already accrued. During this time, the employer must provide health insurance under the same conditions as they did prior to the leave. Under CFRA, an employee who has taken up to four months of PDL is entitled to an additional leave of up to 12 weeks that can be taken for the birth of the employee's child and for bonding. Thus, the total combined leave an employee disabled by pregnancy may take under California law is seven months. Both PDL and CMRA guarantee your employee the right to reinstatement to the same position she held before her leave began. If that position no longer exists, the employer must reinstate the employee to a comparable position upon her return from leave.

Rich and his team of government experts carefully scavenge for answers to your questions every two weeks. According to the Bureau of Labor Statistics, at last count 20.7 million workers did some work at home as part of their regular job. Send your questions to richard.proulx@eeoc.gov, whose day job is Enforcement Supervisor for the Equal Employment Opportunity Commission (www.eeoc.gov). Identifying information in the questions may be fictional.

 
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