Take Leave and Keep Your Job? Yes, It's the Law

No pregnant woman wants to worry about losing her job because she takes some time off before giving birth, or because she stays home for a time with her infant.

Her right to take an unpaid leave and then return to the same work and salary is guaranteed by law.

And the same protections are offered to anybody--man or woman--who needs time away from work to deal with a serious health condition or to care for a spouse, child or parent with a serious condition.

These protections are available under two state laws and one federal statute. But lots of people don't know their rights, and even a law school professor could get confused by puzzles posed by the intersection of the three laws.

Let's unravel the mysteries.

Consider the case of Jane Smith, who is pregnant. Under the California Fair Employment and Housing Act, which covers companies with five or more workers, she can take up to six weeks' leave for a normal pregnancy. She is also permitted a total of four months--including the six weeks--to deal with any disability caused by pregnancy, childbirth or postpartum problems. If her doctor says she cannot work, she is entitled to take that unpaid disability leave.

For example, Jane might take two weeks of leave early in the pregnancy because of morning sickness, two weeks just before and after giving birth, and five more weeks later--all because of health problems. Pregnancy-related health difficulties are considered temporary disabilities under the state law.

To qualify for pregnancy-related disability leave, she must be "unable to perform one or more essential functions of her job without undue risk to herself, successful completion of her pregnancy, or to other persons," according to the state's official definition of pregnancy disability.

For instance, she might be a supermarket checker, and her doctor says it would be dangerous for her to stand on her feet for a full eight-hour shift.

If she wants to continue full-time work, she has the right to ask her employer for an accommodation that would allow her to continue working or transfer to another task.

However, if she decides in consultation with her doctor to stop working, she has an absolute legal right to do that, and to return to the same or comparable job later.

Family Rights Act Allows 12 Weeks Off

Let's say Jane has now given birth, and does not have health problems. She wants to spend some time at home with her baby. The California Family Rights Act allows her to take unpaid leave up to 12 weeks. This law applies to all businesses with 50 or more employees, and employees who have worked at least 1,250 hours in the past 12-month period.

Thus, if Jane worked at one of these companies, and she was disabled due to a pregnancy-related problem, she can potentially take seven months off without pay--four months under the pregnancy disability rules of the Fair Employment and Housing Act and 12 weeks under the Family Rights Act.

The same 12-week rights extend to adoption of a child. You must use your leave within one year of taking custody of the child.

The father of a newborn also has the right to take 12 weeks of unpaid leave, the right that any parent is allowed to "bond" with a newborn.

Under each of these laws, Jane's job is protected. She must get her old position back, or if the particular job is not available, she must be given a comparable assignment in terms of responsibility, pay and benefits.

Our second mythical case involves Ron Bellevue, who has just learned his mother suffered a stroke, and will be bedridden. Ron is guaranteed up to 12 weeks off without pay under both state law--the California Family Rights Act--and federal law--the Family and Medical Leave Act--to care for his mother. The laws give employees time off to deal with their own serious health condition, or to help a sick spouse, child or parent.

The key word is a "serious" health condition. Some examples include cancer, asthma, pneumonia, Alzheimer's disease, arthritis, diabetes, epilepsy, heart conditions, strokes, back conditions and injuries caused by accidents, according to a guide to the federal law compiled by the National Partnership for Women and Families.

The employer can ask for documentary proof of the condition. This can be satisfied with a statement from a doctor, who fills out a form certifying that there is a serious health condition, without providing details of the diagnosis or treatment.

California Law Protects Privacy

California law is more protective of privacy than the federal law, which allows the employer to ask for detailed information.

Under state law a worker "may have a son or a spouse or a parent who had a nervous breakdown, but does not have to divulge this [or any other medical diagnosis] to the employer," said Prudence K. Poppink, a hearing officer with the state Fair Employment and Housing Commission. Under state law, if the worker obtains a form filled out properly by the doctor, it must be accepted by the employer.

The leave can be intermittent, depending on medical necessity. For example, someone getting chemotherapy treatments might need to take off three hours once a week.

Under all these laws, the worker has the right to use vacation time for a period that would otherwise have been unpaid. Under some circumstances, paid sick leave can also be used.

An employer may compel the worker to use any accrued vacation time during these leaves.

An estimated 10 million to 12 million American workers have taken time off since the federal Family and Medical Leave Act was signed by President Clinton in 1993. Yet a poll showed that four in 10 Americans do not realize they have these workplace rights.

"Many of the compliance problems arise out of ignorance or simple misunderstanding of who is covered and who is not," said John Fraser, acting administrator of the wage and hour division of the Labor Department's Employment Standards Administration.

There are several sources of information.

* The Work and Family Project of the Legal Aid Society of San Francisco's Employment Law Center provides free telephone counseling and written material explaining the state and federal laws. Call (800) 880-8047, or write to 1663 Mission St., Suite 400, San Francisco, CA 94103.

* Equal Rights Advocates, a public-interest law firm, has an information hotline, (800) 839-4372, with help available in English and Spanish. Publications also are available on the federal and state laws. Write to 1663 Mission St., Suite 550, San Francisco, CA 94103, or visit its Web site, http://www.equalrights.org.

* The California Department of Fair Housing and Employment enforces the law. It offers the pamphlets "California Family Rights Act" and "Facts on Pregnancy Discrimination." Call (800) 884-1684, or write to 2014 T St., Suite 210, Sacramento, CA 95814.

* The U.S. Labor Department's Wage and Hour Division enforces the Family and Medical Leave Act. Call (800) 959-3652, or visit the department's Web site, http://www.dol.gov.

* A guide to the Family and Medical Leave Act is available from the National Partnership on Women and Families, (202) 986-2600. Write to 1875 Connecticut Ave. N.W., Suite 710, Washington, DC 20009, or visit its Web site, http://www.partnership.org.

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Question: How would an ex-spouse's group insurance coverage continue if the insurance policy states that group coverage is applicable to dependents only? I would appreciate your clarification of this issue. I have a chronic illness and I am in the process of divorce and concerned about my coverage.

Answer: Federal law, the Consolidated Omnibus Reconciliation Act (COBRA), offers ex-spouses of covered workers the opportunity to continue their health insurance. The ex-spouse is now responsible for the full cost of the insurance, including the employer's share, plus an administrative fee of 2%. That means it would cost you 102% of the total expenses under your husband's policy. You can arrange to get the extended coverage through your husband's employer. The COBRA coverage lasts for 36 months. After the three years are up, you have the guaranteed right under federal law to buy an individual insurance policy, regardless of your health problems. Who actually pays for the cost of the COBRA extended insurance? That might ultimately be an issue between your divorce lawyer and your husband's attorney. Paying for the cost of the insurance can be part of the divorce settlement.

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Q: I currently have self-purchased insurance through a professional organization. It is through Blue Cross. I have full-blown AIDS, though not many current problems. I live in fear this policy will be canceled or altered. Obviously, I am not underwrite able [would not be approved for coverage] and I would like to move to California, where my family resides. Does this state have a guaranteed issue plan? I have continuously maintained coverage for well over 15 years. Any suggestions?

A: You should continue to keep your insurance through the professional association as long as you can. Because you already have the policy, it cannot be canceled because you have AIDS. And you cannot be singled out for a discriminatory rate hike. However, because you are no longer an active member of the profession, it is possible that you might be declared ineligible for the coverage.

When you become a resident of California, you will be eligible for the state's high-risk pool, run by the Managed Risk Medical Insurance Board (MrMIB). If you are rejected when applying for an individual policy or if the policy is unaffordable, you will be able to buy this state-subsidized coverage. The state offers a choice of health plans. The cost is anywhere from 25% to 37% higher than what a healthy person would pay. "We do have AIDS patients enrolled and all necessary treatments are covered," says a representative for the state program. Information is available at (800) 289-6574.

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This column appears every second Monday in Health. Send your questions, worries, tips, successes or failures in living with the health insurance revolution to Benefits Bob Rosenblatt, Health, Los Angeles Times, Times Mirror Square, LosAngeles, CA 90053. Or e-mail Bob.Rosenblatt@latimes.com.

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