Family and Medical Leave (FMLA) in California

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

1. The California Family Rights Act (CFRA), and
2. The 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 child; 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:

• 1. What laws control family and medical leave in California?
  • 1.1 What is the FMLA?
  • 1.2 What is the CFRA?
• 2. What types of employers are “covered” by the California Family Rights Act?
• 3. When is an employee eligible for time off under the CFRA?
• 4. What reasons can an employee use to take time off work under the California Family Rights Act?
  • 4.1 What qualifies as a serious health condition?
  • 4.2 Are voluntary medical procedures considered a serious health condition?
  • 4.3 When can I take time off to be with a new child?
• 5. Am I entitled to pay during my time off work?
  • 5.1 Do I have to use sick or vacation time during my leave?
• 6. Am I able to get my old job back after returning from leave?
• 7. What happens if my employer violates my rights under the CFRA and FMLA?
  • 7.1 What happens if the DFEH cannot resolve the conflict?
• 8. Is my employer allowed to punish me for taking leave?

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:

1. The California Family Rights Act (CFRA), and
2. 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,
• job-protected leave,
• 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 employers.

Private employers are “covered” if they have 50 or more employees on the payroll during each of any 20 or more calendar weeks in the current calendar year. 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 leave. To be eligible, an employee must:

• work for a “covered” employer for at least 1 year;
• have worked at least 1,250 hours in the 12 months prior to the requested leave; and
• work at a job site where at least 50 people are employed. ⁴

If the employee works for the California government or any civil or political subdivision of California, it does not matter how many people work at the job site.

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 weeks per year of leave for:

• caring for a family member 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 a family 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 care coverage;
• accrue seniority; and
• participate in any other benefit as part of his or her employment benefits package.

Some employers offer paid leave for a certain time as part of the employment agreement, so be sure to check with your employer as to what rights you may have.

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:

• 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 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 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.

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