CFRA Leave – A Guide to the California Family Rights Act

The California Family Rights Act (CFRA) is a state law that guarantees eligible workers up to 12 weeks of job-protected leave during a 12-month period. The leave applies to certain family or medical situations such as

• the birth of a new child, or
• to care for a family member suffering from a serious medical condition.

In most situations, CFRA leave is unpaid.

What companies does CFRA apply to?

Employers subject to the CFRA include private employers engaged in

• any business in California that employs five or more workers, and
• state governmental agencies (public employers).

Which workers are eligible?

To receive CFRA leave, you must have worked for an employer for a total of 12 months before the start of your leave date.

How do I report a violation?

You can report a violation of the CFRA to California’s Civil Rights Department (CRD) – formerly the Department of Fair Employment and Housing (DFEH). Violations include an employer’s:

• unlawful refusal to honor CFRA leave,
• failure to reinstate your job upon return from CFRA leave, or
• retaliation against you for taking CFRA leave (for example, by wrongfully terminating you, or by harassing or discriminating against you).

What happens if my employer is found in violation?

Remedies for a CFRA violation include:

• reinstatement of your job,
• back pay,
• reasonable attorney’s fees,
• damages for emotional distress, and
• administrative fines.

Note that the Family and Medical Leave Act (FMLA) is a federal statute that mirrors the CFRA.

In cases where you qualifiy for both FMLA leave and CFRA leave, the leaves will run concurrently for a total of 12 weeks.

California Family Rights Act (CFRA) AT-A-GLANCE
Covered employers	5 or more employees
Purpose of leave	Birth of child (“baby-bonding”) Adoptive- or foster care child placement Caring for covered family member with serious health condition Your serious health condition (not including pregnancy) Qualifying military exigency
Covered family members with a serious health condition	Spouse or registered domestic partner Children (or children of domestic partner) Parents and parents-in-law Siblings Grandparents Grandchildren A designated person (any individual related by blood or whose association with the employee is the equivalent of a family relationship)
Length of leave	12 weeks
Compensation	Unpaid

Our California labor and employment attorneys will explain the following in this article:

• 1. What is CFRA leave?
• 2. Which employers are subject to CFRA?
• 3. What are the CFRA leave requirements?
• 4. Is my job protected?
• 5. Is CFRA leave paid?
• 6. What happens if an employer violates my rights under the CFRA?
• 7. Can an employer punish me for taking time off?
• 8. Does CFRA run concurrently with FMLA leave?
• 9. What are the main differences between the CFRA and the FMLA?

1. What is CFRA leave?

The California Family Rights Act is the California law that requires covered employers to allow you (if eligible) to take up to 12 workweeks of job-protected leave from your employment. The law is also known as the Moore-Brown-Roberti Family Rights Act.¹

Your leave of absence is authorized for certain qualifying reasons, including family and medical reasons.

Rules pertaining to the CFRA are often found in employee handbooks and on company websites. You typically have to submit a leave request to qualify for a set number of weeks of leave.

Note that Governor Newsom signed Senate Bill 1383 into law on September 17, 2020. The law significantly expands the reach of the CFRA, mostly in terms of

• covered employers (CFRA now applies to small employers) and
• eligible employees.

SB 1383 became effective January 1, 2021.²

2. Which employers are subject to CFRA?

Prior to SB 1383, California’s leave law applied to California employers that had a worksite with more than 50 employees within a 75-mile radius.

Now, covered employers under the CFRA include:

• private employers engaged in any business in California that employs five or more employees, and
• the State of California and any other political or civil subdivisions, regardless of the number of employees.³

3. What are the CFRA leave requirements?

CFRA leave eligibility is first determined by the amount of time you have worked for a covered employer.

In California, you are eligible for CFRA leave provided that you:

1. were employed for a total of 12 months by your employer prior to starting your leave, and
2. worked for your employer for at least 1,250 hours during the 12-month period before your CFRA leave date.⁴

If you meet the above requirements, you can take up to 12 weeks of CFRA leave from work in a 12-month period:

• for child bonding leave within 12 months of the birth of a new child, adoption of a child, or foster care placement of a child,
• to care for a family member who suffers from a serious health condition (“family member” includes your child, spouse, registered domestic partner, parent, grandparent, grandchild, sibling, or designated person – any individual related by blood or whose association with the employee is the equivalent of a family relationship),
• for your own serious health condition if the condition prevents you from performing your job, and
• for a qualifying exigency related to the active duty or call to active duty of your spouse, registered domestic partner, child, or parent in the U.S. Armed Forces.⁵

For purposes of this California employment law, a “serious health condition” is an illness, injury, or physical or mental condition that requires:

• any period of incapacity or treatment in connection with inpatient care,
• any period of incapacity requiring time away from work or school for more than three consecutive days,
• ongoing treatment by a health care provider for an incurable health condition, and
• restorative dental or plastic surgery following an accident.⁶

Serious health conditions do not include elective cosmetic surgery or preventative physical examinations. However, cosmetic treatments could qualify as serious health conditions in cases where unexpected complications result in inpatient hospital care.

(Note that you may be required to produce medical certification of the serious health condition to your employer in order to take leave. Learn more in our article, Can an employer require a doctor’s note in California?)

Further, a “qualifying exigency” involving military-related leave includes:

• short-notice deployment,
• military events and activities,
• childcare and school activity arrangements,
• financial and legal arrangements,
• counseling, and
• other activities and events upon which the employer and you can agree are appropriate exigencies.⁷

Note that as a CFRA policy, you can only take up to 12 weeks of leave in a 12-month period, even if you qualify for multiple leave periods. Further, your employer must maintain your health benefits via group health insurance during your period of CFRA leave.

See our related article, “Stress Leave” in California – Are workers entitled to it?

4. Is my job protected?

Yes. If you take CFRA California leave, you are entitled to return to your same work position, or an almost identical position, upon return of leave.

An exception applies if you:

• fraudulently obtained leave, or
• would not have been employed even if you had not taken leave.⁸

Prior to SB 1383, an employer could deny a “key employee” reinstatement upon return from CFRA leave. A “key employee” is one of the employer’s highest-paid 10% of all employees. However, the new law eliminated this basis for job denial.

5. Is CFRA leave paid?

In most situations, CFRA leave is unpaid leave. Though you may be able to qualify for wage replacement benefits under either:

• California’s State Disability Insurance, or
• California’s Paid Family Leave (PFL) program, which provides up to eight weeks of paid leave in order to
  1. bond with a new child,
  2. care for a seriously ill child, parent, spouse, or registered domestic partner, or
  3. participate in a qualifying event because of a family member’s military deployment to a foreign country.

While most leave is unpaid, employers are required to provide you with health insurance continuation while on leave.⁹

6. What happens if an employer violates my rights under the CFRA?

You have a right to sue your employer if they unlawfully refuse CFRA leave or fail to reinstate you (or fail to give you a comparable job) upon returning from CFRA leave. You can also take action if your employer retaliates against you in any way for taking leave.

However, before you can file a lawsuit, you must obtain a right to sue letter from California’s Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH).

Once CRD receives a complaint of a CFRA violation, the agency will:

• investigate the alleged violation in an impartial way, and
• attempt to resolve the conflict between the employer and you.

If a settlement between the parties cannot be reached, the CRD may issue an “accusation” and litigate the case before the Fair Employment and Housing Commission, or in civil court.

Remedies for violations of the law include:

• reinstatement of your job,
• back pay,
• reasonable attorney’s fees,
• damages for emotional distress, and
• administrative fines.¹⁰

See our related article about workplace breastfeeding laws and required lactation and storage accommodations.

7. Can an employer punish me for taking time off?

No. It is illegal for an employer to punish or retaliate against you for taking leave under the CFRA.

Retaliation comprises:

• wrongfully firing you,
• failing to promote you,
• harassing you, and/or
• discriminating against you.¹¹

Depending on the facts of the case, if you are punished for properly taking CFRA leave, you may be eligible to file a civil lawsuit against your employer for damages.

8. Does CFRA run concurrently with FMLA?

You may receive leave under the CFRA concurrently with FMLA leave.

The Family and Medical Leave Act (FMLA) is a federal statute that mirrors the CFRA.

Under the FMLA, the following employers must provide you with up to 12 weeks of unpaid leave a year for reasons very similar to qualifying reasons under the CFRA:

• private employers with 50 or more employees on the payroll during 20 or more weeks in the current or preceding year, and
• all state and federal government employers.

As with the CFRA, leave under the FMLA is job-protected. This means that an employer must reinstate you to your position upon return from FMLA leave.

To qualify for FMLA leave, you must:

• work for an employer that is covered by the FMLA,
• have been employed by the covered employer for at least 12 months prior to the leave date, and
• have worked for at least 1,250 hours during that 12-month period.

In cases where you qualify for both FMLA leave and CFRA leave, the leave times will run concurrently for a total of 12 weeks.¹²

9. What are the main differences between the CFRA and the FMLA?

There are four main differences between the California Family Rights Act and the Family and Medical Leave Act.

First, the FMLA applies to businesses with 50 or more employees. The CFRA applies to companies with at least five employees.

Second, pregnancy is considered a “serious health concern” under the FMLA. Pregnancy, though, is not considered as such under the CFRA. Instead, in California, if you are pregnant, you can receive up to four months of pregnancy disability leave (PDL) – and there is no eligibility period required before you can take PDL.

(Note that if you take leave under California’s pregnancy disability leave, you can also take up to 12 weeks of baby bonding leave under the CFRA. Also note that employers are required to accommodate pregnant employees with less strenuous/hazardous jobs unless it would be an undue burden.)

Third, FMLA does not cover registered domestic partners unlike CFRA.

Finally, under both the FMLA and the CFRA, you can take up to 26 weeks of leave to care for a

• spouse,
• child, or
• parent

who becomes ill or gets injured in the line of duty while on active military duty.

But under the FMLA, you can also take such leave to care for an injured military member who is your next of kin.¹³

For additional help…

For additional guidance or to discuss your case with a labor and employment lawyer, we invite you to contact our law firm at Shouse Law Group. We provide a free consultation and legal advice you can trust.

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