The Intermingling of FMLA and CFRA

What Employers need to know to stay compliant

The Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) provide protections for employees that may need to take a leave of absence from work. The FMLA is a federal law that ensures an eligible employee’s ability to take a leave of absence for an extended period of time, for specific reasons. The CFRA is a state law that provides almost identical protections, and is often concurrently available to an employee who is eligible for FMLA Leave.

What is it?

Both the FMLA and CFRA provide up to twelve (12) weeks, in most cases, of unpaid leave for the birth or placement of a child for adoption, or to care for the serious health condition of an employee’s immediate family member. This means that an employee can be eligible for leave to care for a spouse, parent, or child that is diagnosed with a serious health condition. Additionally, both parents are eligible for leave upon the arrival a new child in their family. The 12-week period can be taken intermittently or all at once, and eligible employees are able to elect whether or not to use the full balance of their available leave. An employee may also instead be placed on a “reduced leave schedule,” wherein the employee’s daily work schedule or regular workweek schedule is reduced.  Although employers are permitted (but not required) to provide a longer duration of leave, employees are only entitled to 12-weeks of leave in a 12-month period under FMLA or CFRA.

There are also specific provisions regarding military leave under the FMLA. FMLA entitles eligible employees to take 12-weeks of leave for any “qualifying exigency” arising from the foreign deployment of the eligible employee’s spouse, child, or parent with the Armed Forces. Additionally, FMLA also entitles eligible employees to take 26-weeks of leave to care for a servicemember with a serious injury or illness if the employee is the servicemember’s spouse, child, parent, or next of kin.

Who’s covered?

Any employer who has fifty (50) or more employees within a 75-mile radius is required to provide FMLA leave to qualifying employees. Employers who have had at least 50 employees in twenty (20) or more workweeks in the current or previous year fall under FMLA obligations. This can also apply to integrated and joint employers. Also, to be eligible for FMLA or CFRA leave, it is required that the employee worked for the employer for at least 1,250 hours in the previous 12 months.

Employer Responsibilities

It is the employer’s responsibility to designate whether the leave will be considered FMLA or CFRA. Once leave is designated, the employer should notify the employee within five (5) business days. Before any leave is taken, the employer and employee should discuss when the leave will begin, and designate a return date. This is especially important in situations where the leave is intermittent or reduced schedule, and in situations where the employee is unsure if he or she will use all 12 weeks.

Additionally, once the employee returns from his or her leave, the employer is required to reinstate the employee to either the same position the employee held at the beginning of the leave, or an equivalent position This means that the position must be virtually identical in pay, benefits and working conditions. The position must also involve the same or substantially similar duties and responsibilities, and must require substantially equivalent skill effort and authority.

Additional important facts regarding FMLA and CFRA

If an employee is not eligible for FMLA or CFRA, but has a medical condition and/or disability, an employer must then consider the Americans with Disabilities Act (ADA), and the California Fair Employment and Housing Act (FEHA), in order to determine whether a reasonable accommodation is possible.

Even if the employee is FMLA eligible, employers must recognize that a serious health condition requiring 12-weeks of FMLA leave could constitute a disability under the ADA or FEHA. Even after FMLA leave, additional leave may be required by the ADA or FEHA as a reasonable accommodation.

To ensure compliance with state and federal law regarding family leave contact the attorneys at Palmer Kazanjian Wohl Hodson LLP.