FMLA CA

FMLA CA stands for Family and Medical Leave in California. Human Resource administrators encounter many challenges when faced with requests from employees for leaves of absence. No one law covers the leave of absence and each individual case plays out differently according to an employee’s needs.

Along with the FMLA, California has the California Family Rights Act known as CFRA. The two pieces of legislation have conflicting mandates partially, some overlap, and cover a wide range of options. CFRA applies to employers who have 50 or more employees. Compliance remains mandatory. Employers must post notices of the FMLA and the CFRA in common areas explaining what the employee’s family leave rights are.

The following list gives what FMLA the Federal law and what CFRA in the state of California have in common:

  • Time off for employees with a serious health condition
  • Time off for employees whose family members have a serious condition
  • Up to 12 weeks per year for the birth and bonding of a child
  • Up to 12 weeks per year for the adoption of a child
  • Up to 12 weeks per year for a child placed in foster care

Failure on the part of an employer to comply have created some of the most litigated employment law cases that have resulted in large liabilities. Some major differences between the two acts list as FMLA has a qualifying need that gives time off for employees who have family members in the military. In a 12-month period, it can be as long as 26 weeks to care for an ill or injured military person.

The two pieces of legislation also state that employers shall not retaliate or discriminate against employees who use the FMLA or CFRA. This includes any cases where employees give testimony on violations of the acts as well.

Covered Employers Under FMLA and CFRA

To be covered by FMLA and options make the most sense for your situation. Make a plan, and then chat with the employer. Determine which portions will be paid leave and which portions will not be paid. Be flexible on the start time of a leave if possible.

Intermittent Leave

Leave may be taken consecutively or intermittently. No problem should exist for a worker to make short increments such as days, weeks or even hours as long as it is cleared with the employer. Supplementing the CFRA, the FMLA concurrently can take up to 26 weeks during a 12-month period and that includes any injured military service members. Be aware an employer can temporarily transfer a worker to position better suited for intermittent leave. Alternate positions must have the same pay and benefits as the original position.

Calculating the Leave Period

To make the math clear that becomes used to calculate the leave, 12 weeks is the same as 12 regular work weeks. If the employee works five days a week or less, the number of days that makes 12 weeks is determined on a proportional basis. This includes alternative work schedules as well. Four methods exist that determine the 12-month period where the 12 work weeks or entitlement leave occur.

Certification for Medical Leave

An employer can require an employee to retrieve a medical certification from a healthcare professional before granting the medical leave if the request from the employee is for a serious illness in them or a family member. The information on the certificate will not have details but will mainly verify that the doctor attests to the employee having the illness or the family member does. Medical privacy laws forbid sharing detailed medical information. For the medical leave to become granted it must have the ranking of a serious medical condition not a common ailment. Serious health condition defined as one that has an injury, illness, impairment physically or mentally that meets one of a set of criteria (at least) that a physician uses to evaluate a patient.

Pay and Benefits

Presently most family/medical leave remains unpaid. Employees can use their paid sick time, compensation time, and vacation time in addition to their family/medical leave. Employers may require that paid leave be used first before using family/medical leave. In California, employees with health care insurance benefits, pension payments and even retirement payments should remain being paid during the family/medical leave.

Right to Reinstatement After Leave

The two pieces of legislation FMLA and CFRA protect the employee's job. The employee's job must be held until such time the employee returns or a comparable position identical to the employee’s original position defined by pay, the benefits, and same working conditions. This includes any fringe benefits, status levels, and privileges. Duties and responsibilities must be similar and take equivalent skill along with effort, authority, and responsibility. The location must remain similar with a similar shift or equivalent work schedule. Though not absolute it assures the employer treats the employee fairly in such a situation. If violated or a lesser position given then an employer can become subjected to a civil lawsuit or administrative proceedings. Supervisors can be held personally liable if the family and medical leave laws become ignored. On the other side harsh penalties for lying about an illness or falsifying certifications of an illness will descend upon an employee who abuses such a privilege.

Family Leave Requirements for California

California’s policy for family leave became codified in the Fair Employment and Housing Act (FEHA) and the California Labor Code. FEHA has a reputation for being a wide anti-discrimination law. California has progressive leave rights and disability insurance.

Birth, Adoption. and Leave for Parent

Birth, adoption or placement in foster care these cases have been handled differently than a serious illness. The CFRA give two-week minimum duration for these life events. Employers grant leave in increments of at least one day or less than two weeks on two separate occasions.  This makes the CFRA especially flexible for this type of life need. If parents work for the same employer then the 12 weeks of CFRA family/medical leave becomes shared between the two for the above life events. If the parents work at different employers then at each work place the parent employed there remains eligible for the 12-week leave.

Continuation of Benefits

While an employee goes on leave an employer must continue payments to the medical coverage group health plan offered at the premises under CFRA rules. It must stay within the parameters of 12 work weeks in a 12-month period. If an employee chooses not to return from a leave a no serious illness or other unforeseen circumstance happened then the employer has the right to recover from the worker the premiums paid for coverage.

Exemption for Reinstating Highly Compensated Employees

Salaried employees that rank among the top 10 percent of earners at a work site and live within a 75-mile radius of work remain eligible for family/medical leave. In this case the employer’s discretion determines if an employee would become reinstated to their previous job. The restoration depends on how it affects the employer’s business. The employer must tell the salaried employee they will not be reinstatement. IF the employee has taken the leave then the employer must give the employee an opportunity to return to work after giving notice. If the employee does not agree they may file a wrongful discharge claim stating the CFRA policy was violated.

Enforcement Mechanisms

CFRA does have a bite. If violated administrative and court action can enforce the policy. It has not been unusual for the Federal Employment and Housing Commission to order the reinstatement of a worker with back pay. Monetary damages will include money for pain and suffering or mental anguish from the event up to $50,000. Also, civil penalties can be assessed up to $25,000. Family/medical leave disputes litigated in court have been awarded unlimited damages, compensatory damages, and attorney’s fees.

Pregnancy Disability Leave

Pregnancy leave has different rules. Private employers having five or more employees and public employees must give up to four months of leave of a pregnant employee. It does not matter how long a woman has worked or if the work schedule was full or part time under the Federal Employment and Housing Commission. If it lists as pregnancy, childbirth, or any related conditions the woman receives pregnancy disability leave. A pregnant employee should give notice as soon as possible.  The worker is entitled to 28 weeks of leave during the 12-month period if she qualified for the CFRA or the FMLA leave in addition to the FEHA leave. Employers may require that the female worker use accrued vacation time or sick leave as part of the pregnancy disability leave. State employee's pregnancy disability leave remains slightly different and became classified under the NDI program.

Other Programs

California has a host of other programs that supplement FMLA and CFRA, but do not directly have a tie to any portion of those two pieces of legislation. Other programs employees can use in addition to FMLA and CFRA list as:

  • Kin Care with Expanded Sick Leave
  • Organ and Bone Marrow Donation
  • School Visitation
  • Crime Victim Leave
  • Civil Air Patrol Act
  • State Disability Insurance Program
  • Domestic Violence Leave

Often the programs if an employee is eligible run concurrently with the FMLA and CFRA. The criteria are different and more specific. The programs should become carefully attached to the FMLA and CFRA. Human resource personnel can help with that but if not available in a company then check the government sites.

California has provided for its citizens many choices to cover a family leave or medical leave. An employee needs to explore all the options available to put together a plan for the leave. The laws remain complicated but workable. In most cases a job remains protected if the employee returns as stated. Getting a family or medical leave paid for takes knowing the benefits available, the plan available, and which portions get paid when. Using paid benefits first and filling in with the FMLA and CFRA often becomes the best option. Check the supplemental legislations for specific situations. Bonding with a child remains one of life’s most important events. Take advantage of the benefits you have.

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