California Family Rights Act and Family Medical Leave Act

The Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA)  are federal and state leave laws that allow eligible employees of covered employers to take unpaid, job-protected leave. ​The FMLA and the CFRA are very similar laws regarding their eligibility requirements, leave entitlement, and protections, but there are some differences.

For instance, the CFRA applies to employers with 5 or more employees, where the FMLA only applies to employers that meet certain criteria. Namely, the FMLA applies to private-sector employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer. The FMLA does, however, apply to public agencies, including a local, state, or Federal government agency, and to public and private elementary or secondary schools, regardless of the number of employees it employs. 

Under the FMLA and the CFRA, only eligible employees are entitled to take leave. To be eligible, the employee must work for a covered employer, worked for that employer at least 12 months, and have worked at least 1,250 hours in the 12 months prior to the leave. The FMLA, however, adds the extra requirement that the employee must work at a location where the employer has at least 50 employees within 75 miles. Starting January 1, 2021, the worksite mileage requirement was eliminated under the CFRA.

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Eligible employees under both the FMLA and the CFRA may take up to 12 workweeks of leave in a 12-month period for specified family care and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

There are, however, some subtle differences between the two worth noting. The FMLA allows employees to take leave for the following reasons:​

• Birth of a child for purposes of bonding

• Placement of a child for adoption or foster care

• To care for the employee's spouse (including those in same-sex marriages), child (minor or dependent adult) or parent with a serious health condition

• The serious health condition of the employee (including pregnancy)

• A qualifying military exigency related to the covered active duty or call to covered active duty of an employee's spouse, child (of any age) or parent who is a member of the United States Armed Forces

• To care for a family member who is a current servicemember or veteran with a serious illness or injury (26 weeks)

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Whereas the CFRA allows employees to take leave for the following reasons:

• Birth of a child for purposes of bonding (including the child of a domestic partner)

• Placement of a child in for adoption or foster care

• To care for the employee's spouse (including those in same-sex marriages), registered domestic partner, child (of any age), child of domestic partner, parent, parent-in-law, sibling, grandparent or grandchild with a serious health condition

• The serious health condition of the employee (excluding pregnancy; however, California employees may be eligible for leave under the Pregnancy Disability Leave )

• A qualifying military exigency related to the covered active duty or call to covered active duty of an employee's spouse, domestic partner, child (of any age), or parent in the United States Armed Forces, as specified in Section 3302.2 of the Unemployment Insurance Code

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Further differences exist between the FMLA and the CFRA. The FMLA permits employers to ask for a diagnosis of an employee's serious health condition when necessary to support the need for leave. The CFRA, however, prohibits the employer from asking for a diagnosis, but allows the employee to disclose the diagnosis if they choose. California employers are recommended to use the Certification of Health Care Provider form for CFRA instead of the FMLA medical certification forms to avoid the unauthorized disclosure of a medical diagnosis.

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Under the FMLA, employers may require (and must pay for) second and third medical certifications for employees or family members if the employer has a "reason to doubt" the validity of a certification. Recertification may be required every six months, even if original certification has not expired. With the CFRA, employers may require (and must pay for) second and third medical certifications for an employee's medical condition only (not for family members), if they have a "good faith, objective reason" to doubt the validity of the medical certification before requiring a second or third certification. Recertification may only be requested when the original certification expires. Permanent conditions would not be recertified.

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Under the FMLA, eligible spouses who work for the same employer are limited to a combined total of 12 workweeks of leave in a 12-month period for the following FMLA-qualifying reasons:

• the birth of a son or daughter and bonding with the newborn child,

• the placement of a son or daughter with the employee for adoption or foster care and bonding with the newly-placed child, and

• the care of a parent with a serious health condition.

Combining leave is not permitted for any reason under the CFRA. Starting January 1, 2021, if both parents of a new child work for the same employer, each parent is entitled to up to 12 weeks of leave.

The FMLA requires the employer's agreement for an employee to take bonding with a child leave intermittently. Although employees do not need the employer's agreement to take intermittent bonding leave under the CFRA, an employee may be required to use such leave in two-week minimum increments, with an exception for shorter increments on at least two occasions. 

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Upon return from FMLA leave, an employee must be restored to their original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot be counted against the employee under a “no-fault” attendance policy. Employers are also required to continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.

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Salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for exemption from minimum wage and overtime under the FLSA regulations, do not lose their FLSA-exempt status by using any unpaid FMLA leave. This special exception to the “salary basis” requirements for FLSA’s exemption extends only to an eligible employee’s use of FMLA leave.

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After CFRA leave, employees are guaranteed a return to the same or comparable position and can request the guarantee in writing. If the same position is no longer available, the employer must offer a position that is comparable in terms of pay, benefits, shift, schedule, geographic location, and working conditions, including privileges, perquisites, and status, unless the employer can prove that no comparable position exists. An employee is not entitled to reinstatement if the employee would have been otherwise laid off or terminated for reasons unrelated to their leave.

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Under the FMLA, the employer may require, or the employee may elect to use paid leave – vacation, sick, PTO – unless the employee is receiving disability payments, which would then require agreement between the employer and employee to supplement with paid leave.  With the CFRA, the employer may require, or the employee may elect to use paid leave – vacation, PTO - if the employee is not receiving Paid Family Leave (PFL) or disability payments. The use of paid sick leave may only be required/elected for the employee's serious health condition, or where the employer and employee agree to its use. The employer and employee may agree to supplement PFL or disability payments with other paid leave. Please note that San Francisco employers with 20 or more employees are required to supplement PFL to 100% of pay for eligible employees.  

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In addition to CFRA leave, employers of 5 or more employees must provide job-protected leave or accommodations to employees disabled by pregnancy, childbirth, or a related medical condition. Pregnancy Disability Leave (PDL) is available while an employee is actually disabled, up to a total of 4 months. This includes time off needed for prenatal or postnatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, loss or end of pregnancy, or any other related medical condition. Employees are entitled to take PDL in addition to any leave entitlement under CFRA.

                                                                                                       Common FAQ:

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Q:  What qualifies as a “serious health condition”?

A:  A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either (A) inpatient care in a hospital, hospice, or residential health care facility; or (B) continuing treatment or continuing supervision by a health care provider.

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Q:  How does the employee notify the employer that they want to take leave under CFRA?

A:  Notice can be written or verbal and should include the timing and the anticipated duration of the leave, but an employer may not require disclosure of an underlying diagnosis. If the employee’s need for CFRA leave is foreseeable, the employee must provide reasonable advance notice and, if due to a planned medical treatment or supervision, the employee must make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision.

If the employee’s need for CFRA leave is not foreseeable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable or 15 days from the employer's request. An employer must respond to a leave request as soon as possible and no later than 5 business days.

Q: Are employers required to pay the employee any other benefits while the employee is out on CFRA leave?

A:  If the employer provides health benefits under a group plan, the employer must continue to make these benefits available during the leave. Similarly, the employee is entitled to continue accruing seniority and participate in other benefit plans.

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If you have any further questions or need additional information about the California Family Rights Act leave or Family and Medical Act leave, please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.