FMLA – A Worker’s Guide to Taking Medical Leave in California

The federal Family and Medical Leave Act (FMLA) applies to you if your employer has at least 50 employees. FMLA permits you to take up to 12 weeks of unpaid, job-protected leave in a 12-month period to either:

1. be a caregiver for your spouse, parent, or child with a serious health condition; and/or
2. bond with a newborn, adopted child, or foster child; and/or
3. address and recover from your own serious health condition (including pregnancy); and/or
4. tend to military-related “qualifying exigencies,” such as spending time with an active-duty military family member on short-term leave from the Armed Forces, National Guard, or Reserves.

If practical, FMLA requires you to give your employer 30 days of advanced notice. You must also make a reasonable effort to schedule medical treatments at times that will minimize impact on the company’s operations.

In return, FMLA requires employers to continue providing you healthcare benefits. Then once your employee leave is over, you can return to your same job or a comparable position.

FMLA applies throughout the entire U.S., including California. However, California has its own state family and medical leave law called the California Family Rights Act (CFRA) that generally offers more protections than FMLA. Chances are if you are seeking workplace leave, you will use CFRA (or other relevant California law) rather than FMLA.

Our California employment and labor lawyers have decades of combined experience fighting for employees who were fired, demoted, or otherwise punished for exercising their rights to take time off to care-take. In this article, we discuss employee rights under the FMLA with acknowledgment of the CFRA when the two laws differ:

• 1. FMLA Eligibility
• 2. FMLA Timing
• 3. Reasons for Leave
• 4. Payments
• 5. Job Protection
• 6. Employer Violations
• 7. Retaliation
• 8. Statute of Limitations
• 9. FMLA v. CFRA
• Frequently Asked Questions
• Additional Resources

1. FMLA Eligibility

FMLA applies only to private employers with 50 or more employees as well as to public employers, regardless of the number of employees. You can be:

• full-time,
• part-time,
• commissioned, or
• uncompensated.¹

Meanwhile, California’s CFRA covers private employers with five or more employees as well as all public employers.² Therefore, CFRA covers many more private employers (including small businesses) than FMLA does.

2. FMLA Timing

If you wish to take FMLA leave, you must work for a covered employer for at least one year and put in at least 1,250 hours in the 12 months preceding the leave. In addition, you must be employed at a worksite where 50 or more workers are employed (or were employed for at least 20 weeks in the current or previous year) within a 75-mile radius of that worksite.³

As with FMLA, California’s CFRA requires you to have worked for a “covered” employer for more than one year and to have worked at least 1,250 hours in the 12 months prior to the requested leave. Though unlike FMLA, there is no requirements regarding the number of eligible employees or the worksite location.⁴

3. Reasons for Leave

FMLA grants up to 12 workweeks per year of unpaid leave for the following four reasons:

1. caring for your spouse, parent, or child with a serious health condition;
2. bonding with a newborn, adopted child, or foster child;
3. addressing and recovering from your own serious health condition, including pregnancy; and/or
4. tending to military-related “qualifying exigencies,” such as spending time with an active-duty military family member on short-term leave from the Armed Forces, National Guard or Reserves.

FMLA also allows you to take 26 weeks of leave to care for a family member who is a current or past service member with a serious illness or injury. This entitlement is per injury, per service member ⁵

Therefore, the three main differences between FMLA and California’s CFRA are that:

1. CFRA also allows you leave to care for domestic partners, grandparents, grandchildren, siblings, or designated persons in serious health; and
2. CFRA does not consider pregnancy a qualifying reason to take leave (however, California has an entirely separate law that allows you to take up to four months of pregnancy disability leave for pregnancy, giving birth, and related issues regarding prenatal care); and
3. CFRA does not allow you 26 weeks of leave to care for a family member who is a current or past service member with a serious illness or injury.

If you have a qualifying reason for leave under both CFRA and FMLA, you are still limited to only 12 weeks off. Though you could take CFRA leave for a non-FMLA qualifying reason (such as caring for a sibling) and then take separate FMLA leave for an entirely different qualifying reason for a total of 24 weeks off.

“Serious Health Condition” Meaning

A “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either of the following:

• in-patient care in a hospital, hospice, or residential health care facility; or
• ongoing treatment or ongoing supervision by a healthcare provider.

Voluntary, or elective, procedures are generally not considered “serious health conditions.” This is true unless in-patient hospital medical care is required due to unexpected complications arising from the procedure, such as an infection.

Employers may ask for certification of the health condition from a healthcare provider that shows:

1. The date when your serious health condition began,
2. How long the physician expects your condition to last, and
3. The “appropriate medical facts within the knowledge of the health care provider regarding the condition.”

If your employer doubts the doctor’s note’s validity, they can ask for a second opinion as long as they pay for it.

In our experience, it is not unusual for employers to claim that your family member’s condition is not “serious.” At Shouse Law Group, we can call upon trusted medical experts to swear under oath that your loved one’s ailment indeed qualifies as a “serious health condition,” thereby qualifying you for FMLA or CFRA leave.⁶

4. Payments

Employers are not required to pay you while you are on FMLA leave (or California’s CFRA leave). However, if your employer provides health benefits, then you continue to:

• enjoy full group health insurance care coverage;
• accrue seniority; and
• participate in any other benefit as part of your employment benefits package.

However, many employers do offer paid leave. In California, you are entitled to short-term wage replacements under California’s Paid Family Leave Program (PFL) if you take time off to care for a family member or bond with a new child.

Also, California sick leave laws under the Healthy Workplace Healthy Families Act of 2014 require you get at least one hour of paid sick leave for every 30 hours worked.⁷

Note that employers are allowed to require that you use vacation pay or other paid time off (PTO) during your FMLA or CFRA leave. If you are on leave because of your own serious medical condition, the employer can also require you to use up all your sick days first.⁸

5. Job Protection

Although FMLA (and California’s CFRA) do not require paid leave, you are guaranteed a return to the same position or a comparable position. Also, you can request that this guarantee be in writing.

A “comparable” position must have the same:

• benefits,
• pay,
• promotional opportunities,
• job content, and
• status.

Exceptions

In limited circumstances, you can be laid off during family and medical leave. These include:

• mass layoffs which occur during leave;
• the position was set to be eliminated at a preset time, and is wholly unrelated to you being on leave; and/or
• there is no comparable position available.⁹

(Note that unlike FMLA and CFRA, California’s wage replacement programs Disability Insurance (DI) and Paid Family Leave (PFL) do not provide job protection.)

6. Employer Violations

You can report your employer’s FMLA violations to the U.S. Department of Labor (DOL), which:

• investigates the alleged violations in an impartial way and
• attempts to resolve the conflict between your employer and you.

If a settlement cannot be reached, the DOL may litigate the case on your behalf. Your remedies may include:

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

Note that CFRA violations can be reported to the California Civil Rights Department (CRD) instead of the DOL.

7. Retaliation

It is unlawful for a California employer to take adverse employment action against you for lawfully requesting/taking FMLA (or CFRA) leave.

Common ways employers unlawfully punish employees include:

• wrongful termination,
• failure to promote,
• harassment, and
• discrimination.¹¹

Here at Shouse Law Group, our FMLA lawyers have represented countless loyal workers who were retaliated against for taking leave they were lawfully entitled to.

We can resolve most matters through a strongly-worded demand letter and negotiations. Though if necessary, we are always ready to file a civil lawsuit your behalf in pursuit of the most favorable resolution possible for your case.

8. Statute of Limitations

You have two years after a FMLA violation to file a lawsuit, though this statute of limitations is extended to three years if you can show that your employer acted willfully.

With CFRA cases, you have three years after the violation to obtain a “right to sue” letter from California’s Civil Rights Department (CRD). After that, you have one more year to bring a lawsuit.¹²

9. FMLA v. CFRA

CFRA is largely similar to the FMLA workplace leave of absence laws, but there are key differences, as outlined in this table:

AT-A-GLANCE:	CFRA	FMLA
Covered employers	5 or more employees	50 or more employees
Your worksite	Anywhere	Has 50+ employees within 75 miles
Covered family members	Spouse or registered domestic partner Children (or children of domestic partner) Parents and parents-in-law Siblings Grandparents Grandchildren Designated person (any individual related by blood or whose association with the employee is the equivalent of a family relationship)	Spouse Minor or dependent children Parents
Purpose of leave	Birth of a 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	Birth of a child (“baby-bonding”) Adoptive- or foster care child placement Caring for covered family member with serious health condition Your serious health condition (including pregnancy) Qualifying military exigency
Length of leave	12 weeks	12 weeks (26 weeks for the purpose of caring for a military family member with a serious illness or injury)

Frequently Asked Questions

Can I work another job while on FMLA leave?

Yes, FMLA does not automatically prohibit moonlighting. However, your employer may enforce a uniform, written policy banning outside employment. Also, the secondary work must not conflict with the medical reason for your FMLA leave, or your employer may discipline you. The same goes for CFRA leave.

Can I take my leave in separate blocks or reduce my work schedule?

Yes. Both FMLA and CFRA allow intermittent leave or a reduced work schedule when medically necessary. Under CFRA, baby-bonding leave may also be taken in separate blocks (generally in two-week increments), while FMLA requires employer approval for intermittent bonding leave.

How do I pay my share of health insurance premiums if my leave is unpaid?

Under FMLA, your employer must maintain your group health insurance on the same terms as if you were working. If your leave is unpaid, you are responsible for paying your usual employee share of premiums, typically through direct payments (such as monthly checks or payroll substitution using accrued paid leave). If you fail to make timely payments, coverage may lapse after proper notice. The same goes for CFRA leave.

Can my employer refuse to give me my job back because I am a “key employee”?

Under FMLA, an employer may deny reinstatement to a “key employee” (a salaried employee among the highest-paid 10%) if restoring the job would cause substantial and grievous economic injury to the employer’s operations.

However, California’s CFRA does not recognize a key-employee exception, so eligible employees are generally entitled to reinstatement after CFRA leave.

Additional Resources

For resources regarding other types of unpaid workplace leave, refer to the following:

• California State Pregnancy Disability Leave (PDL) Fact Sheet, CRD – PDL leave will not count against a pregnant person’s CFRA entitlements.
• California State Small Necessities Law – Companies with no less than 25 employees must provide you up to 40 hours of unpaid leave a year – up to eight hours a month – to participate in a child’s school or daycare activities.
• California State Domestic Violence Leave, Department of Industrial Relations – Every company must provide unpaid leave to you if you are seeking a restraining order or other judicial relief from domestic violence against yourself or your children. Companies with no less than 25 employees must provide unpaid leave to victims of sexual assault, stalking, or domestic violence to get medical care, counseling, or crisis center services, or to make a safety plan or move.
• California Literacy Education Leave – our article on how certain employees may take job-protected leave to hone their literacy skills.

---

Legal References: