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 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.
To be eligible for leave under the FMLA and CFRA, you must:
An eligible employee of a covered employer may take leave for any of the following reasons:
A “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.
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.