Unpacking CFRA (California’s “FMLA” Law).
The California Family Rights Act (CFRA) generally mirrors its federal counterpart, the Family and Medical Leave Act (FMLA). However, there are some key differences when it comes to seeking pregnancy-related leave.
For a comprehensive overview of pregnancy-related leaves, TheMamattorney provides an excellent resource. She includes information on how to take the various California and federal leaves to your best advantage.
Reasons for leave
Your Own Needs:
A “serious health condition” that makes you unable to perform the essential functions of your job (not including leave for disability because of pregnancy/childbirth or related medical condition).
Learn about the relationship between CFRA leave and Pregnancy Disability leave from the Mamattorney at www.themamattorney.com.
Bonding Leave
You can also take leave after the birth of your child to bond or placement of a child with you in connection with adoption or foster care to bond. Both parents of the child are eligible to take this leave, even if they work for the same employer.
Deployment/Military Activities
You can also take this leave for reasons related to the deployment or military activities of your spouse, domestic partner, child or parent who is a member of the Armed Forces.
To Care For Others:
You can also take leave to care for the serious health conditions of others, including:
- Parent
- Spouse
- Registered domestic partner
- Child (of any age)
- Siblings
- Grandparents
- Grandchildren
What “serious health conditions” are covered?
Illness
Injury
Impairment
Physical Condition
Mental Condition*
The condition must involve either inpatient care (in a hospital, hospice or residential health care facility) or continuing treatment or supervision by a health care provider.
The condition must make you unable to perform the essential functions of your job – hence why you need time off from work.
It must also include either:
1) Inpatient care OR
2) Continuing treatment or supervision by a health care provider
Inpatient care means either:
1) A stay in a hospital, hospice, or residential health care facility
2) Any subsequent treatment in connection with such inpatient care
3) Any period of incapacity
Incapacity means the inability to work, attend school or perform other regular daily activities due to the serious health condition, its treatment or recovery.
Continuing treatment means ongoing medical treatment or supervision by a health care provider.
Intermittent / reduced schedule leave
How much leave can you take?
12 workweeks in any 12-month period.
What is intermittent or reduced schedule leave?
Intermittent Leave: this is leave taken in separate blocks of time due to a single qualifying reason.
Reduced Leave Schedule: this is a change in your schedule for a period of time, normally from full-time to part-time.
Are there rules about how much of my available leave I can take at once?
1 hour increments or more for the following: (Your employer must allow you to use intermittent leave in increments as small as 1 hour. (The FMLA provides the same). 29 C.F.R. § 825.205(a))
Intermittent or reduced schedule leave in 1 hour increments may be taken when medically necessary as determined by a health care professional →
To care for your own “serious health condition”
To care for your parent with a “serious health condition”
To care for your spouse with a “serious health condition”
To care for your child with a “serious health condition”
*You or your family member do not need to receive treatment by a health care provider to take this leave if you are unable to perform the essential job functions of your job because of a chronic serious health condition or your family member is incapacitated.*
Baby Bonding Leave: Your employer can agree, but is not required, to provide you with intermittent or reduced schedule leave in 2 week increments for the following →
Birth of a child
Placement of a child with you in connection with adoption or foster care
Your employer must grant CFRA leave of less than 2 weeks’ duration on any 2 occasions.
Your employer may grant CFRA leave for additional occasions of leave lasting less than 2 weeks.
How does this relate to FMLA leave?
Leave taken pursuant to CFRA will run concurrently with federal Family Medical Leave Act leave (FMLA) (except for pregnancy, childbirth or related medical conditions leave.
What if I need to take leave for more than 3 months?
Like the federal Americans with Disabilities Act (ADA) , the disability discrimination provisions of the California Fair Employment and Housing Act (FEHA) (Gov.C. § 12900 et seq.) may require an employer to provide a finite leave of absence as a reasonable accommodation.
Want to learn more about reasonable accommodations? Read my blog here.
Covered employers & eligible employees
What employers are covered?
Those that employ 5 or more part or full-time employees for each working day during each of any 20 or more calendar workweeks in the current or preceding year and those 5 employees are within 75 miles of the worksite where the requesting employee is employed.
Note: The workweeks do not have to be consecutive and the “current or preceding year” means the year in which you request leave or the calendar year prior to your request.
Note: Employees who are on paid or unpaid leave are counted in the employee count.
What employees are eligible?
Employees who have worked either more than 12 months or who has at least worked 1,250 hours for the previous 12-month period.
*Eligibility for employees of an air carrier as a flight deck or cabin crew member have different eligibility requirements.
Pay
Is this paid?
The CFRA statute does not require your employer to pay you. However, your employer may provide more expansive benefits. Check with them to see if you qualify for paid leave!
Also, depending on the reason for the leave, salary replacement benefits may be available from a temporary disability plan (employer-provided and/or through the California State Disability Insurance or Paid Family Leave program) or from workers' compensation.
Employer Prohibitions
Can my employer require me to substitute any of my accrued vacation leave, other accrued time off, or other paid or unpaid time off negotiated with my employer for this leave?
It depends.
An employee may not use sick leave during a period of leave taken because of the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse, with a serious health condition unless mutually agreed to by the employer and employee.
If you are taking the time off for your own serious health condition, you may elect or your employer may require you to substitute accrued sick leave during the period of this leave.
In any other case, you may elect or your employer may require you to substitute this leave with otherwise available time off.
Can my employer cut off my health plan while I’m on leave?
Your employer must continue to maintain and pay for coverage under a “group health plan” under the same conditions coverage would have been provided if you had continued in employment, for the duration of your leave.
However, your employer is not required to continue paying for coverage after 12 workweeks in a 12-month period.
Notification requirements
When do I need to tell my employer I need this leave?
Foreseeable need for leave. If your leave is foreseeable, you must provide your employer with reasonable advance notice of your need for leave. That is, you must tell your employer within a reasonable amount of time when you learn you will need to take this leave
Planned treatment or supervision. If you have medical treatment or need for supervision that is already planned, your employer may require you to provide at least 30 days’ advance notice before the leave is to begin.
If you are not able to provide 30 days’ advance notice, you must notify your employer as soon as practicable/possible/you are able.
If you have medical treatment or need for supervision that is already planned, you must make reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of your employer. Of course, this must be approved by your healthcare provider or the health care provider of the individual you’ll be caring for.
Unforeseeable need for leave. If your need for leave is an emergency or otherwise not foreseeable, you must provide notice as soon as practicable.
If I need an unforseeable leave, what am I required to tell my employer?
*You are NOT required to tell your employer what serious health condition is involved.* (See differences with accommodations and interactive process)
You must tell your employer that you need leave and the reason you need the leave, when you anticipate you will need the leave, and how long you anticipate you will need the leave for.
When you tell your employer the reason you need the leave, you do NOT need to tell them what serious health condition is involved. All that is required is that you tell them you need the leave for medical treatment, or for the expected birth of a child, etc.
*There may be times when you do not have to tell your employer you need this leave to trigger it. If you employer knows that you are absent from work because you are sick or injured, your employer must determine if you qualify for leave and if you want leave.*
Medical certification
Can my employer require documentation from my doctor or the doctor of the individual I will be caring for?
Your employer may require that you provide a certification from your healthcare provider or the healthcare provider of the individual requiring care. If your employer requires this, it typically has forms that you can provide to the healthcare provider to fill out.
*Don’t worry, the medical certification questions do not ask what the underlying medical condition is. You can keep this confidential!
See here for a sample form on what your doctor may be filling out!
Can my employer require me to obtain a second or third opinion from a doctor before approving my leave?
Only if the employer has reason to doubt the validity of the certification may it require (at the employer’s expense) you to obtain a second opinion from a health care provider that is designated or approved by your employer.
The second opinion health care provider must not be one who is employed by your employer on a regular basis.
If the second opinion differs from the original opinion, your employer (again at its expense) may require you to obtain a third opinion. This third opinion will be considered final and binding on both the employer and employee.
*Requiring a second or third opinion may only be required for your own serious health condition, not when you need leave to care for another.*
Medical certifications upon your return
Before I return from leave, can my employer require me to obtain another certification (release to return-to-work) that I can resume work?
If you took leave for your own health condition, your employer may require you to obtain a certification from your health care provider that you’re able to resume work, but only if your employer has a uniformly applied practice or policy that requires this. Your employer cannot single you out to provide this certification.
Fitness-for-duty exam
Can my employer require me to undergo a fitness-for duty examination prior to returning to work?
Only if it job related and consistent with business necessity! To learn more, read “Protecting Your Privacy.”
Job protection upon your return
When I return, will I return to my old position?
You must be returned to the same or comparable position that is equivalent (i.e. virtually identical) to your former position in terms of pay, benefits, shift, schedule, geographic location, and working conditions, including privileges, prerequisites, and status. The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.
You are entitled to reinstatement even if you have been replaced or your position has been restructured to accommodate your absence.
If you are no longer qualified for the position because of your inability to attend a necessary course, renew a license, fly a minimum number of hours, or other non-qualifying reason, as a result of taking leave, your employer must give you a reasonable opportunity to fulfill those obligations when you return to work.
There are certain situations where your employer may not be required to reinstate you:
Your employer may not be required to reinstate you if your employer proves that had you been continuously employed during the time you took leave your employment would have ceased or your hours would have been otherwise reduced. Sometimes employers try to prove this by arguing that you were replaced or your position was restructured to accommodate your absence. However, this will not satisfy your employer’s burden to prove had you stayed employed, your employment would have ceased/hours would have been reduced.
Your leave is not considered a break in service
The leave cannot be considered as a break in service, for longevity purposes, seniority under a collective bargaining agreement, or any employee benefit plan.
You must return with no less seniority than you had when you started leave, for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.
No discrimination or retaliation
Your employer cannot discriminate, refuse to hire, discharge, fine, suspend, or expel you because you exercised your right to this leave, or you provided information or testimony as to your own leave or another person’s leave, in response to any inquiry or proceeding related to these leave rights.
No interfering with these rights
Your employer cannot interfere with, restrain, or deny your exercising or attempting to exercise any CFRA rights.
DISCLAIMER: this information is general in nature and does not constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed.