FMLA/CFRA and Parental Leave

Family, Medical and Parental Leaves

Requests for leaves of absence rank among the most frequently encountered challenges faced by the HR administrator. Employers are often faced with administering requests for pregnancy leave, baby bonding leave, leave to care for a sick family member, or leave for the employee's own illness. State and federal leave laws, such as the federal Family and Medical Leave Act (FMLA) - applicable to employers with 50 or more employees, and the California Family Rights Act (CFRA) – applicable to employers with five (5) or more employees, contain overlapping and sometimes conflicting employee rights and employer obligations regarding family leave.

Common Mistake

  • Failing to grant family, medical and parental leaves as required by federal and state law.

FMLA and CFRA Leaves

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 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 up to 12 weeks of time off 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)

The federal Family and Medical Leave Act also allows eligible employees to take up to 26 weeks per 12-month period to care for an ill or injured servicemember.

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.

Covered Employers Under FMLA and CFRA

FMLA covers 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.

Beginning in 2021, California substantially expanded CFRA, applying it to private employers with five or more employees in addition to public employers regardless of their size. Prior to that, CFRA applied to private employers with 50 or more employees, like the FMLA.

Employee Eligibility for FMLA/CFRA Leave

There are specific criteria for an employee to be eligible for CFRA and/or FMLA. 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. Additionally, the under the FMLA, the employee must also work at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

Pregnancy Disability Leave

Employers with five or more employees are covered by California’s pregnancy disability leave (PDL) law. An employee who is disabled by pregnancy is eligible for up to four months of PDL. The length of the leave will be determined by the employee’s health care provider and will depend on the length of time that the employee is actually disabled by the pregnancy.

Employers with employees eligible for state or federal family and medical leave, will also need to follow the steps outlined in Family, Medical and Parental Leave and Leave Interactions when administering leaves related to pregnancy.

Baby Bonding Leave

If an employer is covered by federal and state family and medical leave laws (FMLA/CFRA), an employee can take up to 12 weeks of unpaid, job-protected leave to bond with a newborn or a child placed with the employee for adoption or foster care - assuming the employee meets eligibility requirements. Leave must be taken within one year of the child’s birth, adoption or foster-care placement.

The Family and Medical Leave Act covers employers of 50 or more employees and all public agencies.

The California Family Rights Act covers employers of five or more employees and all public agencies.

Baby bonding leave is in addition to any time off under California’s pregnancy disability leave law.

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, but not for baby-bonding time. 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" - A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves at least one of several criteria specifically defined in the family leave regulations.

You can also generally require a medical certification for pregnancy disability leave.

Notice Requirements for Employer and Employee

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

Pay and Benefits

Family and medical leave, parental leave and pregnancy disability leave are 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 pregnancy disability and family medical leave.

Right to Reinstatement After Leave

When you grant an employee's family and medical, parental or pregnancy disability 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 Position"

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. Reinstatement can be denied for certain lawful reasons unrelated to the employee’s exercise of leave rights.

Interaction Between Federal and California Laws

PDL, FMLA and CFRA contain similar provisions and may run concurrently in certain circumstances. However, there are some specific situations where the leaves will not run concurrently. You will need to familiarize yourself with the various circumstances for which an employee can take leave and how those leaves interact.

Try the Leave Interaction Wizard

The Leave Interaction Wizard helps you determine if an employee is eligible for leave under Pregnancy Disability Leave (PDL), the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), or a combination of these leaves.

Penalties For Leave Violations

Violating family, medical, parental and pregnancy 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 and you publish an employee handbook that describes other kinds of personal or disability leaves available to your employees, you must include policies describing family and medical leave as well as pregnancy disability leave.

Lactation Accommodation for Nursing Mothers

After returning from pregnancy leave, an employee who is a nursing mother may request time to pump breast milk during her workday. Beginning January 1, 2020, California significantly expanded employers’ obligations to provide lactation accommodations. The law requires you to provide a reasonable amount of break time for employees to express breast milk, and a private location other than a bathroom to do so. The room itself must:

  • Be safe, clean, and free of toxic or hazardous materials;
  • Contain a surface to place a breast pump and other personal items;
  • Contain seating; and
  • Have access to electricity or alternative devices (such as extension cords or charging stations) allowing operation of an electric or battery-powered breast pump.

In addition, the employer must provide the lactating employee access to a sink with running water and a refrigerator or cooler suitable for storing breast milk close to the employee’s workspace.

Related Resources

Leave Interaction Wizard »

The goal of the Leave Interaction Wizard is to help you determine if an employee is eligible for leave under Pregnancy Disability Leave (PDL), the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), or a combination of these leaves.

Use this quiz to help you understand some of the specifics of how an employee's time off may relate to the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA).

How To: Manage Family and Medical Leave »
In some circumstances, an employee may request leave for family and medical reasons. The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) entitle eligible employees to unpaid, job protected leave under defined circumstances. If you employ 50 or more employees, you are covered by FMLA. If you employ five or more employees, you are covered by CFRA.

FMLA and CFRA: Family and Medical Leave Forms & Checklists 

Benefits During Leaves of Absence »
This chart describes leaves of absence, whether they are legally required, if state mandated wage replacement is available, whether health benefits must be continued during the leave, and whether use of sick, vacation or PTO can be required.

California Family Rights Act Brochure »
This brochure outlines an employee's right for leave under the California Family Rights Act (CFRA). You may choose to give this brochure to each employee eligible for CFRA and/or who requests leave that qualifies as CFRA, but there is no requirement that you do so.

PDL FMLA CFRA Documentation Checklist - For Employer Use Only »
Use this checklist to assist you in complying with regulations regarding family medical leave, CFRA leave and pregnancy disability leave.

Request for Leave of Absence - FMLA CFRA PDL - English »  Spanish »
Provide this form if you're an employer covered by the federal Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) and either an employee has requested a leave of absence or you recognize the need.