In California, family care and medical leave in the employment context are governed by both state and federal laws. On the federal level, the Family and Medical Leave Act (called “FMLA”) is the operative set of laws. On the state level, the California Family Rights Act (called “CFRA”) is controlling. These laws, however, work together with numerous other regulations and statutes to create a fairly comprehensive set of leave rights for California employees.

This post will provide a brief overview of the main points of the FMLA and CFRA.

Leave Generally: Twelve Weeks of Leave per 12 Months.

Under both the FMLA and CFRA, employees that qualify for leave are entitled to up to 12 work weeks of leave during any 12-month period. Not all employees qualify for leave.

Generally, the employee must have been employed for at least 12 months with the employer and have worked for at least 1,250 during the previous 12-month period. Certain government employees are also excluded from protections under the FMLA.

What are valid reasons to take family or medical leave in California?

Although employees are entitled to 12 weeks of family or medical leave under the FMLA and CFRA, they may only exercise these rights under limited circumstances. The scope of those circumstances will depend on whether the FMLA or CFRA are applicable.

Under the FMLA, an employee may take family or medical leave for any of the following reasons:

• The birth of the employee’s child, or the care of the employee’s newborn.
• To handle the placement of a child with the employee for adoption or foster care.
• To care for a spouse, child, or parent of the employee if they have a serious health condition.
• Because of a serious health condition that makes the employee unable to perform the functions of their position.
• Because of some other “qualifying exigency” arising out of an employee’s child, spouse, or parent’s active-duty service in the Armed Forces.

Under the CFRA, the reasons for leave are largely the same as those under the FMLA, with a few exceptions. First, the CFRA does not provide for leave related to the care of an active-duty servicemember.

Second, the CFRA specifically excludes coverage for leave taken for disability on account of pregnancy, childbirth, or related medical conditions. This sounds weird, but California excludes childbirth and pregnancy from the CFRA because the legislature has provided separately for 4 months of pregnancy disability leave under the Fair Employment and Housing Act. Excluding pregnancy under the CFRA allows new mothers to take up to 4 months of pregnancy disability leave in addition to the up to 12 weeks of leave under the CFRA. We have previously covered pregnancy disability leave here.

Another important difference between the FMLA and CFRA is the protection of domestic partners. The California Domestic Partners Rights and Responsibilities Act of 2003 grants domestic partners the same rights as spouses for many legal purposes—including the exercise of rights under the CFRA. The distinction between spouses and domestic partners is somewhat less important given recent decisions by the federal courts, which have resulted in same-sex marriage being legalized. Nevertheless, it is worth noting here.

What is a "serious health condition"?

FMLA regulations define a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Many of those words have specific meanings under the FMLA, so if you are uncertain whether you qualify, you should contact an attorney to advise you on the FMLA’s applicability.

California adopts similar language in defining the phrase "serious health condition." The California Supreme Court, however, has placed extra emphasis on the employee’s inability to perform the functions of the job.

Exception for Small Employers.

Both the FMLA and CFRA exempt small businesses from family and medical leave requirements. Neither act covers employers with less than 50 employees.

Special Rights for the Family of Servicemembers.

The FMLA provides some special rights for the family of members of the armed forces. Normally, family leave is limited to 12 weeks in a single 12-month period. For the spouse, child, or next of kin of covered servicemembers, however, 26 workweeks of leave for one 12-month period is permitted to care for the servicemember.

The term “covered servicemember” includes active members or veterans of the Armed Forces, including the National Guard or Reserves, who are undergoing medical treatment, recuperation, or therapy for a serious illness. For veterans to be eligible, they must have been a servicemember at some time during the 5 years before the treatment.

What happens when the FMLA and CFRA conflict?

In many cases, the FMLA and CFRA overlap. In California, for instance, the CFRA incorporates all FMLA regulations as long as they are not inconsistent with California’s laws. But what happens when the FMLA conflicts or provides fewer rights than the CFRA?

In situations where the two sets of laws conflict, the law that provides greater family or medical leave rights to employees will be the operative law. In some situations, however, an employee will qualify for leave under both the FMLA and CFRA. If that happens, the leave used will count against the employee’s entitlement under both laws.

Do employees have a right to paid family and medical leave?

In short, the answer is no. Employees do not have a separate right to unearned compensation during family or medical leaves under either the FMLA or CFRA. In general, however, an employee may elect to use accrued paid vacation leave or other accrued time off. An employer can also require the employee to use accrued paid vacation leave, personal leave, sick leave or family leave toward the leave taken under the FMLA or CFRA. It is also possible that an employee might have a different agreement with the employer that could allow medical or family leave to be paid.

Are employees required to give notice?

If the need to take the leave is foreseeable, the employee must give at least 30 days’ advance notice. The birth of a child, for example, is reasonably foreseeable in most cases more than 30 days in advance of the actual birth.

In many other cases, however, this is simply not possible. In those situations, the employee should give as much advance notice as possible to the employer.

The notice can be verbal, but it is usually a good idea to put it in writing.

Of course, employers are permitted to adopt more lenient policies in favor of employees. They may not, however, adopt policies requiring more advance notice than that required by the FMLA or CFRA.

Can employers require employees to provide special certification from a medical provider?

Yes. An employer may require the employee to submit a certification by the employee’s health care provider. If the employee requires the time off to care for a spouse, child, or parent, the employer may also request the serious health condition alleged by the employee be supported by a certification issued by the health care provider of the individual requiring care.

Final Thoughts.

The FMLA and CFRA both contain numerous statutes, regulations, and have been shaped by a number of important court cases. So, in many cases, it is important to seek out the advice of an experienced employment attorney to determine whether you are eligible for family care or medical leave under the FMLA or CFRA. If you think your employer has violated your rights under the FMLA or CFRA, give Optimum Employment Lawyers a call to determine your options: (949) 954-8181.

References

29 U.S.C. §§ 2601–2654.
Gov’t Code, §§ 12945.1–12945.2, 19702.3.
29 U.S.C. § 2612, subd. (a); Gov’t Code, § 12945.2, subd. (a).
29 U.S.C. § 2611; Gov’t Code, § 12945.2, subd. (a).
29 U.S.C. §§ 2611, subd. (2)(B)(i), 6381.
29 U.S.C. § 2612.
Gov’t Code, § 12945.2, subd. (c)(3)(C).
See Gov’t Code, § 12945.
Family Code, § 297–299.6.
Code Fed. Regs., tit. 29, § 825.113.
Cal. Code Regs., tit. 2, § 7297.0, subd. (o).
Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 208.
29 U.S.C. § 2611, subd. (4); Cal. Code Regs., tit. 2, § 7297.0, subd. (d); see also Gov’t Code, § 12945.2, subd. (b).
29 U.S.C. § 2612.
29 U.S.C. § 2611, subd. (15).
Id.
Cal. Code of Regs., tit. 2, § 7297.10.
Code Fed. Regs., tit. 29, § 825.701, subd. (a).
Code Fed. Regs., tit. 29, § 825.701, subd. (a).
Gov’t Code, § 12945.2, subd. (e).
29 U.S.C. § 2612, subd. (d); Gov’t Code, § 12945.2, subd. (e).
Code Fed. Regs., tit. 29, § 825.302, subd. (a); Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(2).
Code Fed. Regs., tit. 29, § 825.302, subd. (b); Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1).
Gov’t Code, § 12945.2, subd. (k).
Gov’t Code, § 12945.2, subd. (j).