FMLA in California – What are my rights as a worker?

California family and medical leave (FMLA) laws allow employees of companies with five or more employees to take up to 12 weeks of unpaid leave in a 12-month period

1. to bond with a new baby,
2. to be a caregiver for a family member with a serious health condition, or
3. when a military spouse, child, or parent deploys.

Employees taking leave must give their employers 30 days advanced notice if possible, and employers are required to continue providing healthcare benefits. And once leave is over, employees are entitled to return to their

• same job or
• a comparable position.

There are two major laws that control family and medical leave from work in California:

1. The California Family Rights Act (CFRA)  – which applies only to California, and
2. The Family Medical Leave Act (FMLA) – a federal law that applies to the entire U.S.

The CFRA is similar to the FMLA. In this article, our California employment and labor lawyers discuss employee rights primarily under the CFRA with acknowledgment of the FMLA when the two laws differ:

• 1. Who is covered by CFRA?
  • 1.1 Who is covered by FMLA?
• 2. When can I take leave under CFRA?
  • 2.1 When can I take leave under FMLA?
• 3. How does CFRA work?
  • 3.1. How does FMLA work in California?
• 4. Do I get paid on CFRA leave?
  • 4.1 Do I get paid on FMLA leave?
• 5. Can I get my job back after taking leave?
  • 5.1 Are there exceptions?
• 6. What if my employer violates CFRA and FMLA?
  • 6.1 What if DFEH cannot resolve the conflict?
• 7. Can my employer punish me for taking leave?

1. Who is covered by CFRA?

The CFRA covers both:

• public employers, regardless of the number of employees, and
• private employers with five or more employees.

Qualifying employees can be:

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

1.1 Who is covered by FMLA?

Whereas CFRA covers private employers with five or more employees, FMLA applies only to private employers with 50 or more employees. And like CFRA, FMLA applies to all public employers.²

2. When can I take leave under CFRA?

The California Family Rights Act has very specific eligibility requirements before an employee is able to take CFRA leave. To be eligible, a California employee must:

• work for a “covered” employer for more than 1 year; and
• have worked at least 1,250 hours in the 12 months prior to the requested leave ³

2.1 When can I take leave under FMLA?

As with CFRA, employees wishing to take FMLA leave 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. But in addition, they must be employed at a worksite where

• 50 or more workers are employed (or were employed for at least 20 weeks the current or previous year)
• within a 75-mile radius of that worksite.⁴

3. How does CFRA work?

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

• caring for the employee’s spouse, registered domestic partner, parent, child, grandparent, grandchild, or sibling with a serious health condition;
• bonding with a newborn, adopted child, or foster child;
• addressing and recovering from the employee’s own serious health condition (not including pregnancy);
• 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.

A “serious health condition” means an:

• illness,
• injury,
• impairment, or
• physical or mental condition

that involves either of the following:

• inpatient 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 health care provider. And if they doubt its validity, they can ask for a second opinion as long as they pay for it.

(Note that pregnant employees in California could take up to 4 months of pregnancy disability leave for pregnancy, giving birth, and related issues.)⁵

3.1. How does FMLA work in California?

FMLA and CFRA guarantee up to 12 weeks of leave per year for the same qualifying reasons, with some exceptions:

• Unlike CFRA, FMLA does not permit leave to care for domestic partners, grandparents, grandchildren, or siblings in serious health.
• Unlike CFRA, FMLA considers pregnancy a qualifying reason to take leave.
• Unlike CFRA, FMLA allows covered employees 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 ⁶

If an employee has a qualifying reason for leave under both CFRA and FMLA, the employee is still limited to only 12 weeks off. But an employee 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.

4. Do I get paid on CFRA leave?

Employers are not required to pay employees while they are on CRFA leave. However, if the employer provides health benefits, then the employee continues to:

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

However, many employers do offer paid leave. In California, eligible employees are entitled to wage replacements under California’s Paid Family Leave Program (PFL), which gives unemployment disability compensation benefits for people who 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 employees get at least one hour of paid sick leave for every 30 hours worked

Note that employers are allowed to require that an employee use vacation pay or other paid time off during the time of his or her leave. If the employee is on leave because of his or her own serious medical condition, the employer can also require the employee to use up all sick days.⁷

4.1 Do I get paid on FMLA leave?

As with CFRA, FMLA does not require employers to pay employees during their leave of absence.⁸

5. Can I get my job back after taking leave?

Yes. Although CFRA and FMLA do not require paid leave, they do offer job protection. Covered employees are guaranteed a return to the same position or a comparable position. Also, an employee can request that this guarantee be in writing.

A “comparable” position must have the same:

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

5.1 Are there exceptions?

In limited circumstances, an employee can be laid off during family and medical leave. ⁵ These include:

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

These exceptions are strictly limited against employers. California law sets forth strong protections for employees who take time off under the Act, and exceptions are rare.⁹

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

6. What if my employer violates CFRA and FMLA?

Violations of employee rights under either of these acts can be reported to the Department of Fair Employment and Housing (DFEH).

The agency will:

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

6.1 What if DFEH cannot resolve the conflict?

Not all violations of the law can be peaceably resolved. If:

• a settlement between the parties cannot be reached,
• the DFEH 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,
• back pay,
• reasonable attorney’s fees,
• damages for emotional distress, and
• administrative fines. ¹⁰

7. Can my employer punish me for taking leave?

No. It is illegal for an employer under California state law to take adverse employment action against you because of your choice to make a leave request and take leave if you followed the law.

Ways employers punish employees include:

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

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

Call us for help…

For questions about family and medical leave policies, leave rights, or California’s workplace leave laws including literacy education leave and parental leave for school activities, do not hesitate to contact our FMLA lawyers at the Shouse Law Group.

We have local law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Also see the California Employment Development Department’s website on State Disability Insurance (SDI).

Disclaimer: Past results do not guarantee future results.

Related Links:

• U.S. Department of Labor (1-866-487-2365)
• California Department of Fair Employment and Housing (1-800-884-1684)
• California State Disability Insurance (SDI) – providing up to 1 year of paid benefits for non-work-related injuries or conditions. Eligibility for paid family leave requires that the employee earned $300 with 12 months of SDI deductions.
• California State Paid Temporary Disability Insurance – This voluntary plan allows eligible employees to have wages withheld so they can get 60%-70% of their regular wages if they miss work for a disability.
• California State Paid Family Leave (PFL) – providing up to 8 weeks of paid benefits (about 70% of regular rate of pay for lower earners, and about 60% of regular rate of pay for higher earners) to bond with a new child, care for a sick family member, or participate in a qualifying event relating to a family member’s military service deployment. In 2021, the maximum weekly benefit is $1,357. Employees may file PFL claims within 41 days of starting leave, and the 8 weeks can be taken over a year-long period.
• Paid Family Leave Calculator, Employment Development Department (EDD).
• How to File a Paid Family Leave Claim in SDI Online, EDD.
• California Paid Sick Leave: Frequently Asked Question, Department of Industrial Relations (DIR).
• California State Military Leave, Department of General Services – Companies 25 or more employees must permit eligible employees to take up to 10 days of unpaid leave while his/her spouse is on leave from deployment during a military conflict.
• California State Pregnancy Disability Leave (PDL) Fact Sheet, DFEH – PDL leave will not count against a pregnant person’s CFRA entitlements.
• California Paid Temporary Disability Insurance – Eligible workers unable to work because of a temporary disability (such as pregnancy) can get 60% or 70% of their usual wage (funded from withholdings from the workers’ paychecks).
• California State Small Necessities Law – Companies with no less than 25 employees must provide employees 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 employees seeking a restraining order or other judicial relief from domestic violence against themselves or their children. And 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.

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