Pension & Benefits News CFRA leave does not count toward absenteeism policy’s clearance period
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Thursday, October 29, 2020

CFRA leave does not count toward absenteeism policy’s clearance period

By Pension and Benefits Editorial Staff

A California appeals court, in an unpublished decision, affirmed summary judgment in favor of the Los Angeles County Metropolitan Transit Authority (MTA) against a bus driver’s claims for retaliation based on his use of his California Family Rights Act (CFRA) leave, failure to prevent retaliation, and interference with CFRA leave. The issue at stake was whether MTA’s absence clearance policy, which is not to count days on which an operator is on CFRA leave when determining whether the operator has satisfied the required 60-day clearance period, violates the CFRA by interfering with the operator’s right to take CFRA leave or by retaliating against the operator for taking that leave.

Absenteeism rule. Under the absenteeism rule contained in a collective bargaining agreement between MTA and its employee union, an employee is subject to progressive discipline, up to and including termination if he or she has a certain number of absences. To avoid discipline, the employee may remove or clear an absence by not having any absences for 60 consecutive calendar days. FMLA and CFRA absences are expressly excluded from the absenteeism rule.

Over the course of his employment, the bus driver requested and was granted 10 leaves of absence under the FMLA and CFRA. Although these absences were not counted as absences for purposes of the absenteeism rule, the bus driver’s numerous other absences, resulting in hundreds of hours of lost work, were. Until the last year of his employment, the driver was able to clear enough absences (by going without a charged absence for 60-day clearance periods) to avoid the highest level of discipline, which is termination.

Termination. He was, however, verbally counseled many times and suspended twice. Upon his eighth absence, which occurred less than a week after he had taken FMLA/CFRA leave, the driver was terminated. More than 60 calendar days had passed between absences on two occasions, so those absences normally would have cleared under the policy. However, the driver had also taken leaves under the CFRA during each of those periods, and MTA did not count those days as part of the 60-day clearance period.

Lower court proceedings. The driver filed suit against MTA claiming that the transit authority interfered with his use of CFRA leave and retaliated against him for frequent use of such leave, among other things. The trial court granted MTA’s motion for summary judgment, concluding that MTA was not required to count the time the driver was on CFRA leave towards the 60-day absence clearance period and that MTA did not violate the CFRA by doing so.

On appeal, the driver contended that the MTA’s absenteeism rule violates the CFRA because it counts an employee’s CFRA leave against the employee by extending the absence clearance period during its use. MTA argued that the absenteeism rule does not violate the CFRA because absence clearance is a benefit accrued by working or being available to work, and the CFRA does not require that employees continue to accrue benefits while on CFRA leave.

No penalty. The appeals court sided with MTA, stating that a no-fault absence policy penalizes an employee for having an unexcused absence within a period of a specific number of days during which he or she is scheduled or available to work. The employee’s taking of FMLA or CFRA leave does not increase the number of scheduled work days that the employee must remain absence-free; therefore, there is no penalty for taking FMLA/CFRA leave. Further, the court stated, the "benefit" of absence clearance is a reward for working without absences, similar to how a paid vacation is a reward for working. Neither benefit is the same thing as a "health and welfare employee benefit plan," participation, which is protected by CFRA for employees taking such leave.

The appeals court held that where, as here, an employer’s no-fault absenteeism policy provides that an employee may clear absences that would otherwise count for purposes of disciplinary action by working or being available to work during a certain clearance period, the employer does not violate the CFRA by extending the absence clearance period by the number of days the employee was on CFRA leave during that period. The holding has a caveat, however. Since the clearing of an absence is an employee benefit, Section 11094 of CFRA applies. Section 11094 provides that if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid CFRA leave. Since the clearing of an absence is an employee benefit, an employer must extend the absence clearance period by the number of days the employee was on any unpaid leave.

SOURCE: Lares v. Los Angeles Metropolitan Transit Authority, (Cal. App.), No. B293850, September 29, 2020.

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