California Family Rights Act

The California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA), which applies to businesses with over 50 employees, both contain employee obligations and employee rights related to family leave. Occasionally, the rights provided by the two acts overlap and conflict.

Personal time for illness must be covered by both the CFRA and the FMLA. Employees must also be given time off for birthing or adopting a child and caring for an ill family member. Issues related to the CFRA and FMLA are frequently litigated and can result in an employer paying large damages.

Employees cannot be discriminated against or experience retaliation for using their CFRA or FMLA rights. In addition, it is illegal to discriminate against employees who provide testimony about employers who have violated medical leave laws. Many employers make the mistake of not granting medical or family leave as dictated by state and federal law.

Several major differences exist between the California Family Rights Act and the Family Medical Leave Act.

Pregnancy as a "Serious Health Condition" (SHC)

The biggest difference between the CFRA and the FMLA is how these acts regard pregnancy. The FMLA provides coverage for pregnancy as a serious health condition, but the CFRA does not. Pregnant employees in California are entitled to take up to four months or sixteen weeks of Pregnancy Disability Leave (PDL). Businesses with five or more employees are subject to this rule. Also, there is no eligibility period.

After taking PDL, employees can take the 12-week bonding leave provided by the CFRA. Eligible employees retain their health benefits when taking their 12-week PDL concurrently with FMLA.

Registered Domestic Partners Equal to Spouses

Under the CFRA, a registered domestic partner is treated in the same way as a spouse when it comes to leave, and may receive more family leave. However, registered domestic partners are not covered by the FMLA.

"Qualifying Exigency" Because of an Employee's or Family Member's Active Military Duty

The FMLA offers eligible employees up to 12 weeks of leave for any "qualifying exigency" that occurs because the employee has a family member who is either active duty military or has been notified that they will be activated to support a contingency operation. Spouses, children, and parents count as family members under this provision, and they must either be a current member of the Reserve or Guard, or be retired from the Armed Services.

The CFRA, however, does not offer leave for a family member or employee's military status under "qualifying exigency."

Care for Ill or Injured Service Member

Both the CFRA and the FMLA provide leave to care for an injured or ill service member. The FMLA allows an employee who is the child, next of kin, parent, or spouse of a service member to take up 26 weeks of leave to care for their family member if their injury or illness occurred while on active duty. This leave must be taken over a 12-month period, and the employee will retain health benefits.

The CFRA only covers leave to care for an ill or injured service member if the service member is a child, parent, or spouse of the employee.

Covered Employers Under FMLA and CFRA

If a private employer has over 50 employees on their payroll for 20 or more weeks in the current or previous calendar year, then their employees are covered by the CFRA and FMLA. All public employees are covered by these acts.

Commissioned employees, employees that do not receive compensation, employees on leave who will return to work, and part-time employees are included in this coverage. Any employees who have been laid off do not receive coverage.

Employee Eligibility for Leave

The CFRA has very specific criteria for when an employee is eligible to take family or medical leave in California. For instance, employees need to work for a covered employer for at least a year. The employee also needs to have accumulated 1,250 work hours in the 12 months prior to their leave. Additionally, the employee must work at a jobsite where at least 50 people are employed.

People that work for the state of California can be eligible regardless of how other many other employees they work with. This includes people who work for California's civil and political subdivisions.

There are certain circumstances where CFRA leave must be used instead of FMLA leave. For example, if an employee is adopting a child, receiving a child from foster care, or needs to care for a newborn child, they are required to use CFRA leave. Additionally, CFRA leave should be used when an employee needs to care for a person with a health condition, whether it is a child, parent, spouse, or themselves. Same-sex domestic partners must also follow these rules.

Duration and Timing of Family and Medical Leave

There are limits to the amount of family and medical leave that a person is allowed to take. In a 12-month period, an employee may take up to 12 workweeks of medical and family leave. These workweeks can be used however the worker sees fit. All 12 weeks can be taken at one time, or they can be broken into smaller increments of hours, days, and weeks.

Intermittent Leave

Although employees can use their leave as they wish, there are some restrictions on taking intermittent leave. When an employee takes intermittent leave instead of using all of their leave time at once, an employer can require them to move to a different position that matches their new schedule.

Leave Period Calculation

Family and medical weeks are calculated the same as workweeks with a normal schedule. When an employee works more or less than the standard five days in a week, or if they have an unusual schedule, their 12-week leave team will be calculated proportionally.

Medical Certification

If an employee is taking medical leave to care for himself or a family member suffering from a severe illness, an employer is allowed to request medical certification. However, privacy laws limit the amount of medical information employers may request on this certification.

When requesting a medical certification, it's common to confuse a "common ailment" with a "serious health condition." An illness, impairment, injury, or mental or physical illness is considered a serious health condition if it meets one of these criteria: it requires a period of treatment or incapacity; the incapacity is great enough to cause someone to miss school or work for more than three consecutive days; ongoing treatment is required because the condition is long-term or incurable; or restorative surgery is required after the injury.

Any treatments that are cosmetic or voluntary are not considered serious health conditions unless complications occur that require a hospital stay. Physical exams for preventative care are excluded.

Notice Requirements for Employer and Employee

In California, as well as at the federal level, employers are legally required to post notices explaining family and medical leave rights to their employees.

Pay and Benefits

The CFRA does not require employers to pay employees while they are on CFRA leave. However, if an employee is required to use leave time other than sick leave, such as vacation time or paid leave, the employee must be paid. Employees must also receive pay if they choose to use paid leave time or vacation time voluntarily.

If an employee is enrolled in an employer provided health insurance program, they must continue to receive their coverage while taking their leave. Retirement and pension benefits will also remain covered.

Right to Reinstatement After Leave

Employees must be guaranteed reinstatement to the same or comparable position when they are granted medical and family leave. A "comparable position" is a position that offers the same pay, working conditions, and benefits — including fringe benefits.

A comparable position should also include similar responsibilities to the position the employee had before taking their leave. This means the comparable positions should require the same skill level, effort, authority, and should be located close to or at the same jobsite. Generally, it will also mean the employee works the same schedule as before their leave.

Returning to the same position they held before their leave is not an absolute right of employees. For instance, if the position no longer exists, an employer can deny reinstatement. If an employee is in the highest paid 10 percent, making them a key employee, the employer can refuse reinstatement if it would economically harm the employer or business. Employers should explain their reasons for refusing reinstatement to their former employee.

Penalties For Family and Medical Leave Violations

If an employer violates family and medical leave laws, they may be vulnerable to an administrative proceeding or civil lawsuit. Similarly, superiors can be found personally liable if they violate leave laws.

Company Family and Medical Leave Policy

Employees that are covered by their employer are required to have a family and medical leave policy. This policy must also contain certain specifications.

California's Pregnancy Disability Leave (PDL)

Female employees cannot substitute CFRA leave for pregnancy leave. However, if she is eligible, she can request that 12 weeks of PDL leave be added to the end of her pregnancy leave. Neither the employee nor her child is required to have a serious health condition to use CFRA leave this way. Also, a female employee does not need to have suffered a disability due to her pregnancy or childbirth in order to use CFRA leave for the care of her newborn.

Under California's Pregnancy Disability Leave Law, employers are required to provide 12 weeks of unpaid disability leave for childbirth, pregnancy, or a related illness if they have five or more employees. The law also requires that employees be given an accommodation or transfer if their job is dangerous or strenuous. However, if they can prove it is an undue burden, the employer can deny the accommodation request.

California's Paid Family Leave (PFL)

Employees who take off work to care for an ill child, parent, registered domestic partner, or spouse are entitled to temporary disability insurance under California's Paid Family Leave (PFL) law. This section of the PFL law also applies to people who take time off to bond with a newborn child.

If eligible, employees will receive their disability insurance through California's State Disability Insurance (SDI) program. PFL also allows for six weeks of leave payments for eligible workers who need to take care of a family member. The Employment Development Department website provides full details about the PFL law.

New California Family Rights Act Regulations Effective July 1, 2015

As of July 1, 2015, the California Fair Employment and Housing Council (FEHC) has amended several sections of Title 2 of the California Code of Regulations. These amendments are meant to clarify the CFRA.

According to the FEHC, their reason for adopting these amendments was to "clarify rules, make technical amendments to ease readability and adopt and modify some of the parallel federal Family and Medical Leave Act regulations."

New Poster and Handbook Requirement

Changes have been made to the "Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave" poster. The new regulations do not require the display a physical poster as long as an electronic posting is offered that meets the informational requirements. However, there is no indication on how employers can make their electronic posting sufficient. Employers must make their poster available in any language that is spoken by 10 percent of their employees.

The new regulations also require that employee handbooks must describe CFRA leave if they detail any other type of family leave.

Shortened Time to Respond to CFRA Leave Requests

Employers now have a much shorter time frame to respond to CFRA leave request. Instead of 10 calendar days, employers must now respond to leave requests within five business days.

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