The
following is from an information sheet distributed by the California Department
of Fair Employment and Housing
Sections 12945.1 and 12945.2
of the Fair Employment and Housing Act (FEHA) contain
provisions relating to family care and medical leave entitlement The
Fair Employment and Housing Commission's (FEHC) interpretation of these
provisions is contained in Section 7297.0 of the California Code of
regulations.
In addition to the family
care and medical leave requirements of the FEHA, employers of five or more
persons have additional obligations pertaining to pregnancy ability leave.
The federal Family
and Medical Leave Act (FMLA) also ensures family care or medical care
leave entitlement (29 USC § 2601 et seq. Implementing regulations are contained
in 29 CFR Part 825). The FMLA is enforced by the Wage and Hour Division of the
US Department of Labor. The CFRA and pregnancy disability leave
provisions of state law are enforced by the Department of Fair
Employment and Housing (DFEH). Where differences between federal and
state law exist, employers should comply with those provisions that are most
beneficial to the employee.
This article addresses the
most frequently asked questions regarding family care or medical leave
entitlement.
Eligibility
Requirements
·
For what reasons may an employee
take a CFRA leave?
An
employee may take an unpaid leave for the birth of a child for purposes of
bonding, for placement of a child in the employee's family for adoption or
foster care, for the serious health condition of the employee's child, parent,
or spouse, and for the employee's own serious health condition.
·
What is a serious health condition?
Serious
health condition means illness, injury (including on-the-job injuries),
impairment, or physical or mental condition of the employee or a child, parent
or spouse of the employee that involves either
1.
inpatient
care (i.e., an overnight stay) in, a hospital, hospice, or residential health
care facility
OR
2.
continuing
treatment or supervision by a health-care provider
·
May an employer require a written
medical certification of the serious health condition of the employee,
employee's child, parent, or spouse before granting the leave?
Yes.
The employer may require written communication from the health-care provider of
the child, parent, spouse, or employee with a serious health condition. The
employer may not require the certification to identify the serious health
condition. Certification is sufficient if it includes (1) the date on which the
serious health condition commenced, (2) the probable duration of the condition,
(3) an estimate of the amount of time the employee needs to care for the sick
family member, (4) a statement that the serious health condition warrants
participation of a family member to provide care during the period of treatment
or medical supervision, or (5) a statement that the employee, due to the serious
health condition, is unable to perform one or more of the essential functions of
his or her job.
·
May an employee take a CFRA medical
leave due to a disability related to her pregnancy, childbirth, or related
medical condition?
No.
An employee has no right to a CFRA medical leave for a disability related to
pregnancy, childbirth, or related medical condition. Separate leave entitlement
is provided by the FEHA's pregnancy leave provisions covered in Government Code
Section 12945(b)(2). Under the FMLA, however, a pregnancy disability qualifies
as a serious health condition and runs concurrently with California pregnancy
disability leave.
·
What employers are covered under
the CFRA?
Employers
subject to the CFRA are those who do business in California and employ 50 or
more part-time or full-time employees in any state. Covered employers include
nonprofit, religious organizations, the State of California, including any
political and civil subdivision of the state and cities, regardless of the
number of employees.
·
What requirements must an employee
satisfy to be eligible to take a CFRA family care medical leave?
To
be eligible for a CFRA leave, an employee must be either a full-time or
part-time employee working in California, have more than 12 months (52 weeks) of
service with the employer, have worked at least 1,250 hours in the 12-month
period before the date the leave begins, and work at a location in which the
employer has at least 50 employees within 75 miles of, the employee's work site.
·
What is the maximum CFRA-leave
entitlement for family care and medical leave?
Leave
may total up to 12 work weeks in a 12-month period. It does not need to be taken
in one continuous period of time.
·
How is the 12-month period
calculated?
An
employer may choose how to compute the 12-month period in which the 12 work
weeks of family care and medical leave entitlement occurs using any of the four
calculation methods allowed under the federal FMLA regulations listed below. An
employer must, however, apply the chosen method consistently and uniformly to
all employees.
These methods are:
1.
The
calendar year
2.
Any
fixed "leave year" of 12 months, such as a fiscal year or a year
starting on an employee's anniversary date
3.
The
12-month period measured from the date an employee's first FMLA/CFRA leave
begins; or
4.
A
rolling 12-month period measured backward from the date an employee uses any
leave.
·
To how much family care and medical
leave are the CFRA-eligible employees entitled?
What
if they work more or less than five days per week or work alternative work
schedules? The family care and medical leave entitlement is 12 work weeks or 60
work days for full-time employees working a five-day, eight hours-a-day work
week during a 12-month period. For eligible employees who work more or less than
five days a week or who work on alternative work schedules, the number of
working days that constitutes 12 work weeks is calculated on a pro rata or
proportional basis.
·
May the family care and medical
leave be added onto other forms of leave?
Yes.
At the end of an employee's period(s) of pregnancy disability leave, a CFRA-eligible
employee may request a CFRA family care medical leave of up to 12 work weeks for
reason of the birth of her child, if the child has been born by this date. There
is no requirement that either the employee or child have a serious health
condition. Nor is there a requirement that the employee no longer be disabled by
her pregnancy, childbirth, or related medical condition before taking a CFRA
leave for reason of the birth of her child.
·
Is there a minimum duration for a
CFRA family care medical leave taken for the birth, adoption, or foster care
placement of a child?
Yes.
The basic minimum duration of a CFRA family care medical leave is two weeks when
the leave is taken for the birth, adoption, or foster-care placement of a child.
However, an employer shall grant a request for a CFRA leave of less than two
weeks duration on any two occasions. In addition, family care medical leave
taken for the birth, adoption, or foster-care placement of a child must be
completed within one year of the qualifying event.
·
Is there a minimum duration for a
CFRA family care medical leave taken for the serious health condition of a
parent, child, or spouse or for the serious health condition of the employee?
No.
Where the CFRA family care medical leave is taken for the serious health
condition of a parent, child, or spouse or for the serious health condition of
the employee, leave may be taken intermittently or on a reduced work schedule
when medically necessary, as determined by the health care provider of the
person with the serious health condition. However, an employer may limit leave
increments to the shortest period of time the employer's payroll system uses to
account for absences.
·
Are there any limitations to the
CFRA family care medical leave entitlement?
Yes.
If both parents are eligible for the CFRA family care medical leave but are
employed by the same employer, that employer may limit leave for the birth,
adoption, or foster-care placement of their child to 12 work weeks in a 12-month
period between the two parents. No other limitations restrict these parents from
taking a CFRA leave for other qualifying reasons.
·
Must an employer pay employees
during their CFRA family care medical leaves?
No.
An employer is not required to pay an employee during a CFRA family care medical
leave, except when an eligible employee elects or the employer requires the
employee to use any accrued vacation time or other accumulated paid leave other
than accrued sick leave. However, if the CFRA leave is for the employee's own
serious health condition, the employee may elect or the employer may require the
employee to use any accrued vacation time or other accumulated paid leave,
including any accrued sick leave. Additionally, accrued sick leave may be used
for a CFRA leave granted for any other reason if mutually agreed to by the
employer and employee.
·
Must an employer continue health
care coverage for employees during their CFRA family care medical leave?
Yes.
If the employer provides health benefits under any group health plan, the
employer has an obligation to continue providing such benefits during an
employee's CFRA family care medical leave, an FMLA leave, or both. This
obligation commences on the date family care medical leave first begins under
the FMLA (i.e., for pregnancy disability leave) or under the FMLA/CFRA (i.e.,
for all other family care or medical leaves). The obligation continues for the
duration of the family care medical leave (s) up to a maximum of 12 work weeks
in a 12-month period.
·
Must an employer continue other
benefits during an employee's CFRA family care medical leave?
Yes.
During the period of a CFRA family care medical leave, the employee is entitled
to accrual of seniority and to participate in employee benefit plans, including
life, short-term or long-term disability or accident insurance, pension and
retirement plans, and supplemental unemployment benefit plans to the same extent
and under the same conditions as would apply to any other leave granted by the
employer for any reason other than a CFRA leave.
·
Must an employer reinstate the
employee at the end of his or her CFRA family care medical leave?
Yes.
Upon granting an employee a CFRA leave, the employer shall guarantee
reinstatement to the same or comparable position and shall provide the guarantee
in writing upon the request of the employee. Employment in a comparable position
means employment in a position that is virtually identical to the employee's
original position in terms of pay, benefits, and working conditions, including
privileges, prerequisites, and status. It must involve the same or substantially
similar duties and responsibilities, skill, effort, and authority, must be
performed at the same or geographically proximate work site, and ordinarily
means the same shift or same or equivalent work schedule.
·
Are there any reasons an employer
could deny reinstatement to an employee out on a CFRA family care medical leave?
Yes.
An employer may deny reinstatement to an employee if his or her position ceased
to exist, such as in a lay-off. An employer may also deny reinstatement if the
employee taking the leave is a key employee (salaried and among the highest paid
10 percent), and the denial of reinstatement is necessary to prevent substantial
and grievous economic injury to the operations of the employer. However, the
employer must notify the employee of the intent to refuse reinstatement at the
time the employer determines the refusal is necessary as well as give the
employee a reasonable opportunity to return to work.
·
Must an employee give advance
notice if he or she wants to take a CFRA family care medical leave?
Yes.
An employee or employee's spokesperson shall provide at least verbal notice
sufficient to make the employer aware the employee needs a CFRA-qualifying
family care medical leave, state the reason for the family care medical leave,
and the anticipate timing and duration of the family care medical leave. An
employer may require 30 days advance notice before a CFRA family care medical
leave is to begin if the need for the leave is foreseeable. If 30 days is not
practicable (i.e., lack of knowledge of approximately when family care medical
leave will be required to begin, a change in circumstances, or a medical
emergency), notice must be given as soon as practicable. Under all
circumstances, it is the employer's responsibility to designate family care
medical leave, paid or unpaid, as CFRA or FMLA. In addition, the employer shall
respond to a family care medical leave request as soon as possible but within
ten calendar days after receiving the request.
·
Must an employer inform employees
of notice requirements of family care medical leave?
Yes.
An employer shall provide notice to his or her employees of the right to request
a CFRA family care medical leave and shall post the notice in a conspicuous
place or places where employees tend to congregate. If the employer publishes a
handbook describing other kinds of personal or disability leaves available to
its employees, the employer shall include a description of a CFRA leave in its
next edition. The employer may include both pregnancy disability leave and the
CFRA leave requirements in a single notice.