Family Leave

It's a right, not a privilege.

If you are an employee who needs to take leave because of a serious health condition, or to care for your family member’s serious health condition, or for pregnancy, birth, adoption, or acceptance for foster care of a child, three important laws may protect your right to get leave from your job:

  • The federal Family and Medical Leave Act of 1993 (FMLA);
  • The California Family Rights Act (CFRA) (part of the Fair Employment and Housing Act); and
  • California’s Pregnancy Disability Leave Act (PDL).

The FMLA provides many of these rights, and for those living in California, the CFRA provides certain extra protections.

If your employer refuses to recognize your rights under the FMLA or CFRA, or if they have used your family leave or desire to take family leave against you, contact the family leave lawyers Kyle Todd, PC at (866) WORK-LAW. Ask about our free initial case consultation.

Both the FMLA (federal) and CFRA (California) provide up to twelve weeks per year of unpaid leave for certain employees under certain conditions. Employees of private businesses, nonprofits, and state or local public agencies in California are governed by California law, including the CFRA, as well as federal law, including the FMLA. This means that, just like employees in every other state, Californians enjoy all the protections of the FMLA. In addition, they enjoy those provisions of the CFRA that provide more protections than the FMLA. Federal employees, however, are governed only by the FMLA, not California law.
The FMLA covers private employers that are engaged in interstate commerce and employ at least fifty workers during each of twenty or more calendar workweeks in the current or preceding calendar year. Public employers, including state and county agencies, are also covered by the FMLA regardless of the number of workers they employ. The CFRA covers private employers that employ at least fifty workers within a seventy-five mile radius during each of twenty or more calendar workweeks in the current or preceding year. The CFRA also covers all California public employers regardless of how many workers they employ.

To be eligible for leave under the FMLA and CFRA, you must:

  • Work for a covered employer (see above);
  • Have been employed by them for at least twelve months (period need not be continuous and can include leave time);
  • Have been employed by them at least 1,250 hours of service (actual hours worked, not including vacation or sick leave) during the twelve-month period immediately before the start of leave you desire; and
  • Work at a site where the employer employs at least fifty workers within a seventy-five mile radius.

An eligible employee of a covered employer may take leave for any of the following reasons:

  • To care for their own serious health condition;
  • To care for a family member who has a serious health condition;
  • For childbirth and pregnancy-related illnesses and for prenatal care;
  • To care for a newborn or child adopted by, or placed in foster care with, the employee.

A covered “family member” includes:

  • Spouses (legally married)
  • Domestic partners
  • Children, including: biological children, adopted children, stepchildren, foster children, legal wards, and children to whom one stands “in loco parentis” (legally standing in the place of a parent). The child must be under 18 years of age or unable to take care of themselves because of a mental or physical disability.
  • Parents, including: biological, adoptive, step, or foster father or mother, or any other individual who stood “in loco parentis” to the employee when they were a child.

“serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a healthcare provider. If the leave is for the employee’s own health condition, the employee must be unable to perform his actual job in order to qualify for family leave.

Under both the FMLA and CFRA, an eligible employee may take up to twelve workweeks of leave during a twelve-month “leave year” for one of the “qualified reasons” listed above. The amount of leave that an employee may take is measured based on their actual workweek. For example, if an employee typically works forty hours a week, they are entitled to 480 hours of family leave. If they work twenty hours of week, they are entitled to 240 hours of family leave, and so on. When an employee’s workweek varies from week to week, their workweek is averaged over the twelve months before the leave period to determine how much leave they are entitled to.

While an employee is on FMLA and/or CFRA leave, the employer must maintain and pay its share of premiums for the employee’s group healthcare coverage on the same terms as if the employee was continuously employed during the entire leave period. The employee is also entitled to any unconditional pay raises they would have received during the FMLA leave.

Employees are entitled to maintain the same levels of seniority and benefits s they had when the leave started (but will not accrue more seniority or benefits during the leave).

The FMLA and CFRA guarantee to an employee taking family leave the right to be reinstated to the same or an equivalent position when they return from leave. This means a position that is “virtually identical” to the employee’s former position in terms of “pay, benefits, and working conditions, including privileges, prerequisites, and status.” The position also “must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” The job must also be at the same location, or close to it.

However, an employer may refuse to reinstate certain highly paid key employees in order to prevent substantial and grievous economic injury to their operations. The same is true if you would not have continued in the position for reasons unrelated to your leave if you had remained working – such as because of the employer’s bona fide reduction in force.

Under the FMLA, an employer must not interfere with the employee’s right to take leave under the FMLA. An employer, furthermore, must not use the fact that you have taken FMLA or CFRA leave as a negative factor in an employment decision, including and up to termination. In other words, an employer cannot discriminate or retaliate against you if you have taken or wish to take family leave that you are eligible for under the FMLA or CFRA.

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