FMLA and CFRA: Family and Medical Leave

Requests for leaves of absence rank among the most frequently encountered challenges faced by the HR administrator. The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) - applicable to employers with 50 or more employees - contain overlapping and sometimes conflicting employee rights and employer obligations regarding California family leave.

The FMLA and CFRA both require covered employers to provide time off for personal illness, to attend to the illness of a family member and in connection with the birth or adoption of a child. Though this sounds simple, FMLA leave act and CFRA issues are among the most litigated of all employment law cases and can result in large liabilities. Federal and California family and medical leave laws provide eligible employees with the equivalent of up to 12 weeks per year for:

  • Bonding with a newborn, adopted child, or child placed for foster care
  • Caring for a family member with a serious health condition
  • The employee's own serious health condition
  • A qualifying exigency relating to a close family member's military service (FMLA only)

According to the federal Family and Medical Leave Act, eligible employees can get up to 26 weeks per 12-month period to care for an ill or injured service member (FMLA only).

Family and medical leave laws also prohibit retaliation or discrimination against an employee for exercising rights under FMLA or CFRA or for giving information or testimony about alleged violations of California or federal family and medical leave laws.

Common Mistake

  • Failing to grant family and medical leave as required by federal and state law.

Covered Employers Under FMLA and CFRA

Family/medical leave laws cover private employers with 50 or more employees on the payroll during each of any 20 or more calendar weeks in the current calendar year or the preceding calendar year and all public employers, regardless of the number of employees. This includes employees on the payroll who received no compensation, part-time employees, commissioned employees and employees on leave who are expected to return to active employment. Employees on layoff do not count.

Interaction Between Federal and California Laws

An employee can take family and medical leave under several different circumstances. FMLA and CFRA contain similar provisions and generally run concurrently. However, there are some situations where the leave will be FMLA only or CFRA only. You will need to familiarize yourself with the various circumstances for which an employee can take leave.

Employee Eligibility for Leave

According to the CFRA, there are specific criteria for an employee to be eligible for California family and medical leave. An employee must have worked for a covered employer for at least 12 months and must have worked for 1,250 hours in the 12 months before the start of the leave. The employee must also work at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

Duration and Timing of Family and Medical Leave

An employee may take up to 12 workweeks of family/medical leave in a 12-month period. He/she may take all 12 weeks at once, or may take leave in shorter increments of hours, days or weeks.

An employee may take up to 26 weeks per 12-month period to care for an ill or injured service member under the FMLA.

Intermittent Leave

Employees can either take leave all at once or intermittently with a few restrictions.

If an employee takes intermittent or reduced schedule family/medical leave, you can require the employee to temporarily transfer to a position better suited to that schedule. The alternative position must have equivalent pay and benefits.

Leave Period Calculation

"Twelve weeks" means the equivalent of 12 normally scheduled workweeks. For eligible employees working more or less than five days a week or working alternative work schedules, the number of working days constituting 12 weeks is calculated on a pro rata or proportional basis.

Calculation Methods

You can choose one of four specific methods to determine the 12-month period in which the 12 workweeks of leave entitlement occur.​

Medical Certification

You may require medical certification for an employee taking family/medical leave for his/her own serious illness or to care for a family member (baby-bonding time does not count). Keep in mind that medical privacy laws limit the type of information you may require on such certification.

  • Common Mistake - Not understanding the difference between a "serious health condition" and a "common ailment."
  • "Serious Health Condition" Defined - A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves at least one of several criteria.

Notice Requirements for Employer and Employee

Both California family/medical leave and federal family/medical leave laws require employers to post specific notices for employees explaining their family leave rights.

Pay and Benefits

Family/medical leave is generally unpaid, though employees have certain rights to substitute accrued paid sick or vacation leave for the otherwise unpaid time. Employees who are enrolled in your health insurance benefits are entitled to continue receiving this benefit during their family medical leave.

Other Insurance Benefits

There are other insurance benefits around family/medical leave you'll want to be aware of, including retirement and pension.​

Right to Reinstatement After Leave

When you grant an employee's family/medical leave request you must guarantee to reinstate the employee to the same or a comparable position. Only under very limited circumstances can you refuse to honor the reinstatement guarantee.

"Comparable Po​sition"

Employment in a "comparable position" means employment in a position virtually identical to the employee's original position in terms of pay, benefits and working conditions, including privileges, fringe benefits and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority. It must be performed at the same or a geographically close worksite from where the employee previously was employed. It ordinarily means the same shift or the same or an equivalent work schedule.

Refusing Reinstatement Entirely

Though an employee has the right to return to the position held before taking a family/medical leave, this right is not absolute.

Penalties For Family and Medical Leave Violations

Violating family and medical leave laws subjects you to a civil lawsuit or administrative proceeding, and supervisors may be personally liable.

Company Family and Medical Leave Policy

If you are a covered employer, you must have a family and medical leave policy, which should include certain specifications. ​​​​​​​​​​