FMLA in California - The Family & Medical Leave Act

Updated January 19, 2021

COVID-19 UPDATE: Workers at companies with fewer than 500 employees are no longer entitled to take coronavirus-related paid sick leave and expanded family and medical leave. But companies who voluntarily offer this leave will get a tax credit through March 31, 2021.

The table below outlines these non-mandatory leave policies under the Families First Coronavirus Response Act (FFCRA):

Purpose of the leave	Length and pay of leave under FFCRA
Local, state, or federal quarantine order; or Advised by health care provider to self-quarantine; or Seeking diagnosis for COVID-19 symptoms	Up to 2 weeks* of paid sick leave at 100% of the employee’s regular pay rate (or the applicable state or federal minimum wage, if higher). The maximum is $511 a day and $5,110 total.
Care-taking for a person who either: Is under a local, state, or federal quarantine order; or Is self-quarantined on advice of a health care provider	Up to 2 weeks* of paid sick leave at 2/3 of the employee’s regular pay rate (or the applicable state or federal minimum wage, if higher). The maximum is $200 a day and $2,000 total.
Care-taking for a child whose school is closed and childcare is unavailable due to COVID-19.^	2 weeks* of paid sick leave at 2/3 of the employee’s regular pay rate (or the applicable state or federal minimum wage, if higher); and Up to 10 additional weeksº of expanded family and medical leave of absence at 2/3 of the employee’s regular pay rate (or the applicable state or federal minimum wage, if higher). The maximum pay for these 12 weeks is $200 a day and $12,000 total.
2 weeks is 80 hours* (or the equivalent for part-time workers).
ºOnly workers employed at least 30 days prior to the leave request are eligible for these 10 extra weeks.
^Employers with fewer than 50 workers could be exempted if it would jeopardize the business’s viability.

Family and medical leave in California is governed by two separate laws that work together:

The California Family Rights Act (CFRA), and
The federal Family and Medical Leave Act (FMLA).

The CFRA mirrors the FMLA but for certain exceptions in what each act covers. The CFRA allows eligible employees to:

take up to 12 weeks of leave
in a 12-month period.

Reasons for Leave

The CFRA allows eligible employees to take time off of work to:

bond with a newborn, adoptive, or foster care placement child (new parent leave); or
care for a parent, spouse, or child with a serious health condition.

Employers are not required to pay employees while they are on family or medical leave, but employers are:

required to continue to provide health benefits;
required to continue all medical coverage as if the employee was still working;
not allowed to “re-qualify” a returning employee for benefits.

Returning From Time Off

After an employee returns from leave through the CFRA or FMLA:

employees are guaranteed a return to the same position; or
a comparable position; and
an employee can request that guarantee be in writing.

In some cases, the same position may not be available, but a “comparable” position can be offered with the same:

benefits,
pay,
job content, and
status.

Below, our California employment and labor lawyers discuss the following frequently asked questions about family and medical leave for California employees:

Family leave request form - FMLA in California offers guaranteed time off for workers and their families with certain medical conditions

The California Family Rights Act and the Family and Medical Leave Act guarantee time off work to care for a person’s medical conditions and family.

1. What laws control family and medical leave in California?

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

The California Family Rights Act (CFRA), and
The Family and Medical Leave Act (FMLA).

The CFRA is similar to the FMLA. This article discusses employee rights primarily under the CFRA with acknowledgment of the FMLA when the two laws differ.

1.1 What is the FMLA?

The FMLA is a federal law that entitles eligible employees to:

unpaid leave,
job protection,
for specified family and medical reasons,
for up to 12 weeks in a 12-month period. ¹

It was enacted on February 5, 1993, to protect the rights of American workers.

1.2 What is the CFRA?

The CFRA is a state law that entitles employees to the same types of protections listed above under the FMLA. ²

Unlike the FMLA, the CFRA only applies to California employees, and not employees throughout the entire United States.

2. What types of employers are “covered” by the California Family Rights Act?

The CFRA covers both private and public California employers.

Covered employers include private employers if they have 5 or more employees. Qualifying employees can be:

full-time,
part-time,
commissioned, or
uncompensated. ³

Public employers are covered under the CFRA regardless of the number of employees.

3. When is an employee eligible for time off under the CFRA?

The California Family Rights Act has very specific eligibility requirements before an employee is able to take CFRA leave. To be eligible, an 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 ⁴

4. What reasons can an employee use to take time off from work under the California Family Rights Act?

Both the CFRA and the FMLA grant up to 12 workweeks per year of leave for these qualifying exigencies:

caring for a family member – including a domestic partner – with a serious health condition;
bonding with a newborn, adopted child, or child placed for foster care;
addressing an employee’s own serious health condition;
qualifying for an emergency situation related to an active duty service member’s military service (FMLA only). ⁵

4.1 What qualifies as a serious health condition?

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 car facility; or
continuing treatment or continuing supervision by a healthcare provider. ⁶

4.2 Are voluntary medical procedures considered a serious health condition?

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

Example: Lauren decides to get a “tummy tuck” that requires surgery and time off work to recuperate. She gets the tummy tuck but develops a severe infection. Because the procedure is voluntary, she is not entitled to take time off under the CFRA, but because an unexpected Infection materialized, she may need additional treatment that qualifies for time off under the CFRA.

4.3 When can I take time off to be with a new child?

An employee who just became a parent is able to take time off work to be with:

a newborn biological child,
a newly adopted child, or
a newly placed foster child.

A “parent” includes:

a biological parent,
a foster parent,
an adoptive parent,
a stepparent, or
a legal guardian.

This includes both mothers and fathers, providing all employees the chance to bond with the new family member.

5. Am I entitled to pay during my time off work?

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

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

Some employers do offer paid family leave, paid pregnancy disability leave, and other benefits for a certain time as part of the employment agreement, so be sure to check with your employer and employee handbooks as to what rights you may have.

Certain types of leave also provide for wage replacement. An example is 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.

5.1 Do I have to use sick or vacation time during my leave?

An employer is 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.

6. Am I able to get my old job back after returning from leave?

After an employee returns from leave through the CFRA or FMLA:

employees are guaranteed a return to the same position, or
a comparable position, and
an employee can request that guarantee be in writing.

In some cases, the same position may not be available, but a “comparable” position can be offered with the same:

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

6.1 Are there exceptions to this rule?

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 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.

7. What happens if my employer violates my rights under the 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.

7.1 What happens if the 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. ⁸

8. Is my employer allowed to punish me for taking leave?

No. It is illegal for an employer to take adverse employment action against you because of your choice to take leave if you followed the law.

Ways employers punish employees include:

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

Team of law firm receptionists with headsets

Call us for help…

For questions about family and medical leave rights or California’s workplace leave laws including literacy education leave and parental leave for school activities, do not hesitate to contact us 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.

Legal References:

United States Department of Labor. 29 U.S.C. 2601, et seq.
California Legislative Information. Cal. Gov. Code § 12945.2. Note that the New Parent Leave Act was repealed in California Senate Bill 1383 (2020).
Cal. Gov. Code § 12945.2(a).
Cal. Gov. Code § 12945.2(c)(2).
Cal. Gov. Code § 12945.2(c)(3); see also Escriba v. Foster Poultry Farms, Inc. (9th Cir., 2014), 743 F.3d 1236; see also Liu v. Amway Corp., (9th Cir., 2002) 347 F.3d 1125.
Cal. Gov. Code § 12945.2(c)(8).
Cal. Gov. Code § 12945.2(c)(7).
Department of Fair Employment and Housing. California Family Rights Act Brochure.