October 2, 2018
The California Family Rights Act (CFRA) provides a protected leave for qualified employees. “Protected leave” means that the employee is entitled to return to the job, without loss of pay or benefits, at the end of the leave. Besides this state law, many California cities have local laws that pertain to employee medical leave, and these local laws can overlap with the CFRA. There is also a nationwide law on the subject: the federal Family and Medical Leave Act (FMLA).
The CFRA can be a minefield for employers, and missteps can lead to costly litigation. It is important to understand what the CFRA requires, as well as its significant differences with similar federal and local laws. Below is a review of the CFRA’s basic provisions for employers who must navigate this complex area of California employment law.
Leave Entitlement: An employee who meets the CFRA’s criteria is entitled to 12 workweeks of unpaid but protected leave during any 12-month period for family care and medical leave including: leave for the birth, adoption or foster care placement of a child, or the serious health condition of a child; or leave to care for a parent or a spouse who has a serious health condition; or leave because of an employee’s own serious health condition that makes the employee unable to perform the function of the job.
Be aware that leave taken for disability on account of pregnancy, childbirth or a related medical condition is covered by a different law, California’s Pregnancy Disability Leave Law (PDLL), which can allow up to four months of unpaid protected leave to these employees.
Serious Medical Condition Defined: A serious medical condition is an illness, injury, impairment, or physical or mental condition involving either (1) inpatient care; (2) absence from work, school, or other regular activities with continuing care by a health care provider for at least three days; (3) any period of incapacity involving pregnancy, prenatal care, or a chronic health condition such as asthma, diabetes, epilepsy or other conditions, or (4) a permanent or long-term condition for which treatment may not be effective, such as a stroke or a terminal disease. Pregnancy, in itself, is not considered a serious medical condition under the CFRA.
Application: The CFRA applies only to California employers with 50 or more employees. For those employers, it applies to the employees who have completed more than 12 months of service with the employer and have worked at least 1,250 hours for the employer during the previous 12-month period.
Additionally, Paid Family Leave (PFL) is available for those employees who work for smaller companies and have contributed to the state disability program. PFL provides up to six weeks of partial pay. PFL can be used to care for a seriously ill family member, and here “seriously ill” has a broader definition than “serious medical condition” in the CFRA. Although PFL leave time is paid, it does not offer job protection, unlike the CFRA and the PDLL.
California has another law which allows protected leave to new parents: the Parental Leave Act. On January 1, 2018, California revised and expanded the Parental Leave Act to cover some employees of mid-sized businesses. Because of that change, employers that have from 20 to 49 employees working within a 75-mile radius are now required to provide up to 12 weeks of protected leave to employees who are new parents. Employers with more than 49 employees were already required to provide this leave. Like the CFRA, the Parental Leave Act covers the events of birth, adoption, and foster care placement. However, the CFRA also allows leave for the care of serious health conditions, which is unaffected by the change to the Parental Leave Act and continues to affect only employers with 50 or more employees.
Concurrent Leave: Leave taken pursuant to the CFRA runs concurrently with family leave taken under the federal FMLA and other laws, but it does not run concurrently with medical leave (including leave for pregnancy, childbirth or related medical conditions).
Medical Certification: Where an employee takes leave for the serious health condition of the employee or a family member, the employer may require a certification from a health care provider containing the date on which the serious health condition commenced, the condition’s probable duration, and a statement regarding the nature of the condition. If the employee later requests additional leave, the employer may require re-certification.
Verification: If there is reason to doubt the validity of a medical certification, the employer may require, at its own expense, a second opinion from a health care provider designated or approved by the employer but not employed on a regular basis by the employer. Should the second opinion differ from the first, the employer may require, at its own expense, a third opinion by another health care provider designated or approved jointly by the employer and the employee. The opinion of the third health care provider will be final and binding on both the employer and the employee.
Job Guarantee: Upon granting a request for leave, the employer must guarantee employment in the same or a comparable position upon the termination of the leave. However, an employee who fails to return at the end of the 12-week period, or who fails to provide medical certification as required, may be terminated.
Call an Attorney! Employers should consult a knowledgeable employment attorney to explain the ramifications and requirements of the California Family Rights Act and other California leave laws, and thus avoid running afoul of any of its provisions.
Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.