1. FMLA CA: Everything You Need to Know
2. Covered Employers Under FMLA and CFRA
3. Interaction Between Federal and California Laws
4. Employee Eligibility, Duration, and Timing for Leave
5. Intermittent Leave
6. Medical Certification
7. Pay and Benefits
8. Right to Reinstatement After Leave
9. Birth, Adoption, and Leave for Parents
10. Exemption for Reinstating Highly Compensated Employees
11. Pregnancy Disability Leave
12. Other Programs

FMLA CA: Everything You Need to Know

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, also referred to as CFRA. These 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 as well as the CFRA in common areas explaining what the employee’s family leave rights are.

The following list gives what the federal FMLA and what the FMLA 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 with these laws 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.

These 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 under the FMLA and CFRA, an employee must work for a private employer who retains 50 or more employees on the payroll during each of any 20 or more calendar weeks in a year as well as the previous calendar year. All public employers have coverage for their employees regardless of the number on the payroll.

Employees on the payroll who have not earned compensation will be covered under the FMLA. It also includes part time employees, commissioned employees, and employees on leave under other programs. 

Interaction Between Federal and California Laws

Subtle differences exist between these two pieces of legislation regarding employees asking for family or medical leave under the law(s). First, it is important to understand that FMLA and CFRA, when taken, will run simultaneously and overlap. During portions of a family or medical leave, sometimes only the FMLA will function and at other times only the CFRA will function. A medical or family leave needs to be very carefully put together by personnel that are familiar with the rules and how they apply for the situation the employee is in.

Employee Eligibility, Duration, and Timing for Leave

Specific criteria exist for employment eligibility with the CFRA; this law states that a worker must have been employed for at least 12 months and worked at least 1,250 hours prior to the leave start date. It takes 50 or more employees at a work site within a range of 75 miles of the worksite to become eligible. In any given12-month period, an employee can take 12 weeks of family/medical leave. Start exploring early which 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 per 12-month period and that includes any injured military service members. Be aware that an employer can temporarily transfer an employee to position better suited for intermittent leave. Alternate positions must have the same pay and benefits as the original position.

Medical Certification

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 essentially verify that the doctor attests to the employee or family members having the illness. 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 and not a common ailment. Serious health condition is defined as a physically or mental injury, illness, or impairment that meets at least one set of criteria 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 healthcare insurance benefits, pension payments, and even retirement payments should continue being paid during the family/medical leave.

Right to Reinstatement After Leave

These two pieces of legislation 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, benefits, and same working conditions must be provided to the employee. 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 that the employer treats the employee fairly in such a situation. If this rule is violated, then an employer can become subject to a civil lawsuit or administrative proceedings. Supervisors can be held personally liable if the family and medical leave laws go 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 privilege.

Birth, Adoption, and Leave for Parents

Birth, adoption, and placement in foster care are issues that have been handled differently than a serious illness. The CFRA provides a 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-mentioned life events.

Exemption for Reinstating Highly Compensated Employees

Salaried employees that rank among the top 10% 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 be reinstated to his or her previous job. The restoration depends on how it affects the employer’s business. The employer must tell the salaried employee they will not be reinstated. 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, he or she may file a wrongful discharge claim stating that the CFRA policy was violated.

Pregnancy Disability Leave

Pregnancy leave has different rules. Private employers employing five or more employees as well as public employees must give up to four months of leave of a pregnant employee. It does not matter how long a woman has worked for the company 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 is 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

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