What California Workers Need to Know about the FMLA
An unexpected illness. The birth of a new child. A sick family member who relies on you for care. Certain medical and life events often put California employees in the uncomfortable situation of feeling that they have to choose between their professional livelihood and supporting the health and welfare of their family.
Fortunately, federal and state laws are in place to prevent employees from having to make that difficult choice. The national Family Medical Leave Act (FMLA) was designed to help employees take reasonable unpaid leave for certain family and medical reasons.
Under the FMLA, qualified employees are entitled to up to 12 weeks of unpaid, job-protected leave per year. Additionally, thanks to the California Family Rights Act, employees throughout the Golden State can also receive further support for life events not covered under federal family leave benefits.
Unfortunately, employers often misunderstand or misuse the FMLA, denying California employees their legally-entitled medical leave or punishing them unfairly for exercising their right to request it.
In this guide, we’ll walk through what federal and California state law says about unpaid leave, explain who’s eligible to request it, and outline what to do if your employer resists your legitimate request for family or medical leave.
If you have questions or would like to speak with a FMLA lawyer in California, please contact us online today.
What Life Events Are Covered By The Fmla?
The Family and Medical Leave Act (FMLA) of 1993 allows eligible workers to take up to 12 weeks of job-protected, unpaid leave within a 12 month period when:
- They are unable to work due to a serious health condition.
- They are caring for an immediate family member with a serious health condition.
- They have a newborn child or have a child placed with them for adoption or foster care.
- They experience any of the qualifying exigencies that arise due to an immediate family member who is on “covered active duty” as a member of the National Guard, Reserves, or regular armed forces.
Under the FMLA, employers must also continue to provide employees in these situations with their group health benefits while away from work. Additionally, when they return from leave, employees are also entitled to return to their same (or a reasonably equivalent) position.
The FMLA does have limits to the family and medical events that it covers, though.
For one, a “serious health condition” is specifically defined as an illness, injury, impairment, or physical or mental condition that causes or requires:
- A period of incapacity or treatment in connection with or after inpatient care, such as an overnight stay in a hospital.
- A period of incapacity of more than three consecutive days requiring absence from work, school, or other regular daily activities with ongoing medical treatment.
- Ongoing treatment by a health care provider for a chronic or long-term health condition.
- Restorative dental or plastic surgery after an injury.
- Pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically-required bed rest).
Intermittent leave for the purpose of bonding with a new child can also be available, subject to the employer’s prior approval.
Additionally, under the FMLA, an “immediate family member” must be an employee’s spouse (including a same-sex spouse), child, or parent. Registered domestic partners are not covered under federal family leave benefits.
When Are Employees Eligible For Federal Fmla Benefits?
Importantly, you have to work for a covered employer to be eligible for FMLA leave. All U.S. public agencies, including local, state, and federal employers, and local education agencies (i.e. schools) are automatically included in FMLA coverage.
In the private sector, you’re covered if your employer has 50 or more employees within a 75-mile radius who work for at least 20 workweeks in the current or previous calendar year.
At the individual level, you must work for your current employer for at least a year to be eligible for FMLA leave.
Additionally, employees requesting FMLA must have worked at least 1,250 hours during the 12 months prior to the start of leave. Paid time off, like vacation or regular sick days, can’t be counted toward this requirement.
Available leave time is limited to 12 weeks, which can be taken all at once or intermittently. The only exception to the 12-week cap is for workers who are caring for a covered servicemember with a serious injury or illness — in these cases, you can be eligible for up to 26 weeks of leave within a single 12-month period.
What Else Does California Law Say About Family And Medical Leave?
In addition to the FMLA, the California Family Rights Act (CFRA) also provides eligible employees with job protection while they take leave to handle serious personal and family matters.
The basic requirements for coverage under California’s CFRA differ slightly from the FMLA. For one, CFRA coverage extends to all private companies with only five or more employees in the state (as well as to all state and local government employers).
Additionally, you don’t have to work at a site with at least 50 employees within 75 miles of their location to be eligible for CFRA leave.
As with the FMLA, though, California employees do have to be employed for at least 12 months with at least 1,250 work hours to qualify for CFRA.
CFRA similarly grants employees across California 12 weeks of leave within a 12-month period to care for themselves or a family member experiencing a “serious health condition.” Covered situations include bonding with a new child.
Importantly, though, CFRA classes pregnancy separately from the rest of the serious health conditions it covers. This is because qualified California employees can also access up to 12 weeks of Pregnancy Disability Leave (PDL) under state law.
PDL may be taken in addition to CFRA leave and does not have to run concurrently. For instance, if a tech recruiter in San Francisco took 12 weeks of PDL for her last three months of pregnancy, she can still request some leave under CFRA for bonding time with her newborn during that same year.
Another advantage for employees is that the California Family Rights Act expands the types of family members included in leave requests compared to the FMLA.
Starting in 2023, eligible California employees may take leave for a child, spouse, domestic partner, parent, parent-in-law, grandparent, grandchild, sibling, or someone else related by blood or in a family-like relationship (“designated person”) with a serious health condition. You can only name one “designated person” in the course of a year for CFRA purposes, though.
Generally, leave under the CFRA runs concurrently with the FMLA, and it can also be taken all at once or intermittently.
CFRA laws cap out available leave for all qualifying events after 12 weeks total, except in the case of employees caring for family members who are covered service members, who may be eligible for up to 26 weeks of leave within a single 12-month period.
Although employers aren’t required to pay you under the FMLA or CFRA, workers may be able to receive benefits under California’s Paid Family Leave (PFL) law.
This provides partial pay to employees who need time off to care for a sick family member or to bond with a newborn. However, your employer can require you to use accrued vacation time or other accumulated paid leave, if you do so.
How Do I Request Family Or Medical Leave In California?
Your company’s HR department should provide you with the “Request for Leave of Absence” form that you can use for either FMLA or CFRA leave. If your reason for requesting is foreseeable — e.g. pregnancy, a planned surgery — you must give your employer 30 days’ notice.
But in some situations — e.g. an accident or unexpected illness — then the law allows you some leeway to file the request as soon as reasonably possible, given your circumstances.
It’s important to know that your employer is legally allowed to request verification from a medical professional as proof of any serious health condition.
They must make this request within five days of your leave notice, and then you have at least 15 calendar days to obtain the medical certification. Be aware: Under privacy law, your employer is not legally allowed to ask you to disclose your specific medical records, though.
Can I Be Fired For Taking Fmla Or Cfra Leave?
No. After you take FMLA or CFRA leave, you are entitled to return to the same position unless it is no longer available. If it’s not available (e.g. due to layoff or closure), then you must be offered an alternative position that is comparable in shift, work schedule, pay, benefits, location, job duties, and promotional opportunities.
If you are not given the same or a comparable position upon return from leave, the employer must prove that there was no such comparable position.
You can’t be fired — and if you are, your employer has committed what’s called retaliation. This means that they’re punishing you for exercising your legal rights as a worker, which is illegal under federal and state labor laws.
Employer retaliation isn’t limited to firing. Being demoted or facing reduced hours/assignments are also forms of workplace retaliation banned by national and California law.
If your employer takes any adverse actions to punish you specifically for making a legitimate request for family or medical leave, you may have grounds for discrimination or for a wrongful termination lawsuit.
Unfortunately, retaliation for family or medical leave requests is quite common. Because of that, the FMLA stipulates that the damages awarded to employees who successfully sue for employer retaliation are automatically doubled.
When To Contact A California Employment Lawyer About An Fmla Violation
Employers can unfairly and illegally interfere with legitimate requests for family and medical leave in other ways. Here are some other common situations when an employer’s resistance can be grounds for violating your rights to FMLA or CFRA:
- Your employer demands that you give an unreasonable amount of notice.
In cases when your request for leave is foreseeable, both the FMLA and CFRA require that employees give their employers 30 days’ notice before an absence begins.
Your employer can’t require you to give more than 30 days’ notice for previously known leave requests. They also can’t cite the 30-day rule to deny you emergency FMLA leave in situations when it was not reasonably foreseeable.
- Your employer doesn’t recognize your request.
The FMLA doesn’t necessarily require you to use the term “FMLA” when requesting unpaid medical leave.
It’s up to your employer to hear your request and determine how to categorize your leave based on the circumstances. If they claim or imply that you didn’t make the “right” FMLA request, that could be grounds for a violation of your rights.
- Your employer delays your request.
Your boss might recognize your request for leave but only agree to grant it if you schedule your absence at times that aren’t so disruptive to your job. This also isn’t allowed: your employer can’t ask or force you to delay a request because they don’t like the timing.
- Your employer requires you to work while on leave.
Your employer also shouldn’t ask you to work from home or for you to be available while on FMLA leave, even if it’s only for a limited number of hours each week.
- Your employer makes it difficult for you to take intermittent leave.
Both FMLA and CFRA allow workers to take “intermittent leave,” where you scale back the number of hours or days you work per week.
While on intermittent leave, if your employer demotes you or loads you up with more work than is reasonable to accomplish within your specified hours, that’s also an illegal interference with your legally-entitled leave time.
If you experience any of these situations, it’s very likely that your rights as an employee have been violated, and you should contact an employment attorney as soon as possible.
An employment lawyer familiar with both federal and California law regarding unpaid leave requests can assess your situation and advise you on how to respond.
If you do have a case, an experienced attorney can mediate on your behalf and negotiate a settlement. Although cases of FMLA violation are unfortunately common, they can often be resolved quickly, without going to court, and with favorable settlements for employees.
Get In Contact With A California Employment Lawyer Today
If you’re a California worker facing push-back against your FMLA request, or if you have any confusion about whether you are eligible to request leave, speak to an attorney immediately.
A skilled attorney can help you identify all your rights and obligations under the leave laws so you can protect your time off and make the most of it.
Ottinger Employment Lawyers have been helping California employees with FMLA disputes since 1999. Contact our office today to learn how we can help you.