The Wage and Hour Division of the DOL’s Employment Standards Administration enforces FMLA for all private employees, state and local government employees, and some federal employees.
FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave each year for specified family and medical reasons.
the law contains provisions relating to employer coverage, employee eligibility for the benefits of the law, entitlement to leave, maintenance of health benefits during leave, seniority accrual and job restoration after leave, notice and certification of the need for FMLA leave, and protections for employees
who request or take FMLA leave. In addition, the law includes certain employer recordkeeping
California’s family and medical leave law, CFRA, mirrors FMLA but also differs from the federal law in important ways related to parents, intermittent leave for child care, medical certifications, paid-time-off usage, pregnancy
disability leave, health provider second opinions, and required notice postings.
Where California law varies from the federal law, we have highlighted those differences.
FMLA applies to all employers that are:
• public agencies, including state, local, and federal employers as well as local schools; and
• private-sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year, and who are engaged in commerce or in any industry or activity affecting commerce,
including joint employers and successors of covered employers.
To be eligible for FMLA benefits, an employee must:
• work for a covered employer; and
• have worked for the employer for at least 12 months, which includes time spent working for you as a leased or temporary employee; and
• have worked at least 1,250 hours over the prior 12 months (about 24 hours per week); and
• work at a location where at least 50 employees are employed by the employer within 75 miles.
A covered employer must grant an eligible employee up to 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
• the birth or care of a newborn, or the placement of a child for adoption or foster care; or
• to care for an immediate family member (spouse, child, or parent, but not parent-inlaw; it’s wise to also consider registered domestic partners to be immediate family members because they are covered under CFRA) with a serious health condition; or partners to be immediate family members because they are covered under CFRA) with a serious health condition; or
• to take medical leave when the employee cannot work because of his or her own serious health condition.
CALIFORNIA RULES THAT DIFFER:
California rules say that if both parents— whether married or not—work for you, you can limit their combined family leave for the birth, adoption, or foster placement of a child to a total of 12 weeks in a 12-month period. But California law also prohibits discrimination against workers based on their marital status. So it’s best not to limit
leave if both parents work for you, regardless of whether or not they’re married. Otherwise, you could open the door to a marital-status bias lawsuit.
In California, employees can take intermittent leave for the birth or care of a newborn or the placement of a child for adoption or foster care. Generally, you don’t have to allow “baby bonding leave" that is less than two weeks long, but you do have to grant up to two requests for shorter leave.
It’s sometimes hard to tell whether paid time off should be counted as family leave. Federal rules allow employers to inquire why vacation or other paid leave is being taken. But California law says you can’t ask unless the employee is requesting sick leave. However, if someone volunteers information that indicates that the time is for family leave purposes, you can inquire further.
CFRA allows employees to take leave to care for a registered domestic partner; FMLA does not. This means that an employee who takes leave to care for a registered domestic partner is taking CFRA leave only, and this leave cannot be deducted from the employee's FMLA entitlement. As a result, the employee will be entitled to take 12 weeks of FMLA leave to care for himself or herself or a nondomestic partner family member, and that CFRA
leave taken to care for the domestic partner is additional CFRA leave. The total leave entitlement, then, could be more than 12 weeks.
Under California law, employees may not take family leave for pregnancy-related disabilities because a separate pregnancy leave law entitles a woman to take up to four months of leave for disabilities caused by pregnancy or childbirth. However, a woman is entitled to up to 12 weeks of family leave to care for the newborn child. This means a worker could take as much as 29 weeks of pregnancy disability leave and family leave combined.
California’s family leave law imposes a separate notice-posting requirement. Call the California Fair
Employment and Housing Commission at (415) 557-2325 for a copy of the notice, or go to www.dfeh.ca.gov/Publications/publications.aspx and download form DFEH-100-21. In addition, California requires employers to revise their handbooks so
that their leave policies conform to California and federal leave regulations.
Note that although the DOL forms allow a doctor to indicate a diagnosis, California law doesn’t permit
employers to obtain this information—unless the employee consents.
Also, California doesn’t permit you to ask for a second opinion on the need for leave when the certificate
is for an immediate family member and the certificate submitted was complete.
Employment / Labor Attorney