FMLA – A Worker’s Guide to Taking Medical Leave in California

The Family and Medical Leave (FMLA) law allows you (if your employer has at least 50 employees) to take up to 12 weeks of unpaid, job-protected leave in a 12-month period in order to:

1. be a caregiver for your spouse, parent, or child with a serious health condition;
2. bond with a newborn, adopted child, or foster child;
3. address and recover from your own serious health condition (including pregnancy);
4. tend to military-related “qualifying exigencies,” such as spending time with an active-duty military family member on short-term leave from the Armed Forces, National Guard or Reserves.

If feasible you must give your employer 30 days of advanced notice and make a reasonable effort to schedule medical treatments at times that will minimize impact on the company’s operations.

In return, employers must continue providing healthcare benefits. Then once your employee leave is over, you can return to your

• same job or
• a comparable position.

There are two major laws that control family and medical leave from work in California:

1. The Family Medical Leave Act (FMLA) – a federal law that applies to the entire U.S, and
2. The California Family Rights Act (CFRA) – which applies only to California.

The CFRA is similar to the FMLA workplace leave of absence laws, but there are key differences:

Our California employment and labor lawyers have decades of combined experience fighting for employees who were fired, demoted, or otherwise punished for exercising their rights to take time off to care-take. In this article, we discuss employee rights under the FMLA with acknowledgment of the CFRA when the two laws differ:

• 1. Who is covered by FMLA?
• 2. When can I take leave?
• 3. How does FMLA work?
• 4. Do I get paid?
• 5. Can I get my job back after taking leave?
• 6. What if my employer violates my rights?
• 7. Can my employer punish me for taking leave?
• 8. What is the deadline to file a case?
• Additional resources

1. Who is covered by FMLA?

FMLA applies only to private employers with 50 or more employees as well as to public employers, regardless of the number of employees. You can be:

• full-time,
• part-time,
• commissioned, or
• uncompensated.¹

Meanwhile, CFRA covers private employers with five or more employees as well as all public employers.² Therefore, CFRA covers many more private employers (including small businesses) than FMLA does.

2. When can I take leave?

If you wish to take FMLA leave, you must work for a covered employer for at least one year and put in at least 1,250 hours in the 12 months preceding the leave. In addition, you must be employed at a worksite where

• 50 or more workers are employed (or were employed for at least 20 weeks in the current or previous year)
• within a 75-mile radius of that worksite.³

As with FMLA, CFRA requires you to have worked for a “covered” employer for more than 1 year and to have worked at least 1,250 hours in the 12 months prior to the requested leave. Though unlike FMLA, there is no requirements regarding the number of eligible employees or the worksite location.⁴

3. How does FMLA work?

FMLA grants up to 12 workweeks per year of unpaid leave for the following reasons:

• caring for your spouse, parent, or child with a serious health condition;
• bonding with a newborn, adopted child, or foster child;
• addressing and recovering from your own serious health condition, including pregnancy;
• tending to military-related “qualifying exigencies,” such as spending time with an active-duty military family member on short-term leave from the Armed Forces, National Guard or Reserves.

FMLA also allows you to take 26 weeks of leave to care for a family member who is a current or past service member with a serious illness or injury. This entitlement is per injury, per service member ⁵

The main differences between FMLA and CFRA are that:

• CFRA also allows you leave to care for domestic partners, grandparents, grandchildren, siblings, or designated persons in serious health;
• CFRA does not consider pregnancy a qualifying reason to take leave; and
• CFRA does not allow you 26 weeks of leave to care for a family member who is a current or past service member with a serious illness or injury.

If you have a qualifying reason for leave under both CFRA and FMLA, you are still limited to only 12 weeks off. Though you could take CFRA leave for a non-FMLA qualifying reason (such as caring for a sibling) and then take separate FMLA leave for an entirely different qualifying reason for a total of 24 weeks off.

Definition of “serious health conditions”

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 care facility; or
• ongoing treatment or ongoing supervision by a healthcare provider.

Voluntary, or elective, procedures are generally not considered “serious health conditions.” This is true unless in-patient hospital medical care is required due to unexpected complications arising from the procedure, such as an infection.

Employers may ask for certification of the health condition from a healthcare provider that shows:

1. The date when your serious health condition began,
2. How long the physician expects your condition to last, and
3. The “appropriate medical facts within the knowledge of the health care provider regarding the condition.”

If your employer doubts the doctor’s note’s validity, they can ask for a second opinion as long as they pay for it.

In our experience, it is not unusual for employers to claim that your family member’s condition is not “serious.” At Shouse Law Group, we can call upon trusted medical experts to swear under oath that your loved one’s ailment indeed qualifies as a “serious health condition,” thereby qualifying you for CFRA leave.⁶

Pregnancy leave options under CFRA

Even though CFRA does not permit leave for pregnancy like FMLA does, California has an entirely separate law that allows you to take up to four months of pregnancy disability leave for pregnancy, giving birth, and related issues regarding prenatal care.

The California Family Rights Act and the Family and Medical Leave Act guarantee time off to care for your medical conditions and family.

4. Do I get paid?

Employers are not required to pay you while you are on FMLA or CFRA leave. However, if your employer provides health benefits, then you continue to:

• enjoy full group health insurance care coverage;
• accrue seniority; and
• participate in any other benefit as part of your employment benefits package.

However, many employers do offer paid leave. In California, you are entitled to wage replacements under California’s Paid Family Leave Program (PFL), which gives unemployment disability compensation benefits if you take time off to care for a family member or bond with a new child.

Also, California sick leave laws under the Healthy Workplace Healthy Families Act of 2014 require you get at least one hour of paid sick leave for every 30 hours worked.⁷

Note that employers are allowed to require that you use vacation pay or other paid time off (PTO) during your FMLA or CFRA leave. If you are on leave because of your own serious medical condition, the employer can also require you to use up all sick days.⁸

5. Can I get my job back after taking leave?

Yes. Although FMLA and CFRA do not require paid leave, they do offer job protection. You are guaranteed a return to the same position or a comparable position. Also, you can request that this guarantee be in writing.

A “comparable” position must have the same:

• benefits,
• pay,
• promotional opportunities,
• job content, and
• status.

5.1 Are there exceptions?

In limited circumstances, you can be laid off during family and medical leave. These include:

• mass layoffs which occur during leave;
• the position was set to be eliminated at a preset time, and is wholly unrelated to you being on leave;
• there is no comparable position available.

These exceptions are strictly limited against employers. Federal and California law sets forth strong protections if you take time off under the Act, and exceptions are rare.⁹

(Note that unlike FMLA and CFRA, California’s wage replacement programs Disability Insurance (DI) and Paid Family Leave (PFL) do not provide job protection.)

6. What if my employer violates my rights?

FMLA violations can be reported to the U.S. Department of Labor (DOL) or to the California Civil Rights Department (CRD). These agencies:

• investigate the alleged violations in an impartial way, and
• attempt to resolve the conflict between your employer and you.

If a settlement cannot be reached, the DOL or CRD may litigate the case on your behalf. Your remedies may include:

• reinstatement,
• back pay,
• reasonable attorney’s fees,
• damages for emotional distress, and
• administrative fines. ¹⁰

Note that CFRA violations should be reported to the California CRD.

7. Can my employer punish me for taking leave?

No. It is illegal for an employer under California state law to take adverse employment action against you because of your choice to make a leave request and take leave if you followed the law.

Ways employers punish employees include:

• wrongful termination,
• failure to promote,
• harassment, and
• discrimination.¹¹

Here at Shouse Law Group, our FMLA lawyers have represented countless loyal workers who were retaliated against for taking leave they were legally entitled to. We can resolve most matters through a strongly-worded demand letter and negotiations. Though if necessary, we are always ready to file a civil lawsuit your behalf in pursuit of the most favorable resolution possible for your case.

8. What is the deadline to file a case?

You have two years after a FMLA violation to file a lawsuit, though this statute of limitations is extended to three years if you can show that your employer acted willfully.

With CFRA cases, you have one year after the violation to obtain a “right to sue” letter from the Civil Rights Department. After that, you have one more year to bring a lawsuit.¹²

Your employer cannot retaliate against you for taking leave that you are entitled to.

Additional resources

For resources regarding other types of unpaid workplace leave, refer to the following:

• California State Military Leave, Department of General Services – Companies 25 or more employees must permit you to take up to 10 days of unpaid leave while your spouse is on leave from deployment during a military conflict.
• California State Pregnancy Disability Leave (PDL) Fact Sheet, CRD – PDL leave will not count against a pregnant person’s CFRA entitlements.
• California State Small Necessities Law – Companies with no less than 25 employees must provide you up to 40 hours of unpaid leave a year – up to eight hours a month – to participate in a child’s school or daycare activities.
• California State Domestic Violence Leave, Department of Industrial Relations – Every company must provide unpaid leave to you if you are seeking a restraining order or other judicial relief from domestic violence against yourself or your children. Companies with no less than 25 employees must provide unpaid leave to victims of sexual assault, stalking, or domestic violence to get medical care, counseling, or crisis center services, or to make a safety plan or move.
• California Literacy Education Leave – our article on how certain employees may take job-protected leave to hone their literacy skills.

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