Written by attorney Marilynn Mika Spencer

Family and Medical Leave Protection: PART I Summary of California (CFRA) and Federal (FMLA) laws

Family and Medical Leave Protection: PART I Summary of California (CFRA) and Federal (FMLA) laws

This is PART I. Please read Part II at

California law and federal law both protect employees from discrimination due to their need to take a leave of absence from work due to s serious medical condition that the employee has, or that an immediate family member has. The two laws are nearly identical, but there are a few important differences, which are noted below. The most significant difference relates to pregnancy leave, and is discussed below.

The California Family Rights Act, Government Code section 12945.2 (CFRA) and the federal Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) provide job security to an employee who is absent from work due to the employee’s own serious health condition; or to care for a family member with a serious health condition; or due to the birth or adoption of a child. The FMLA applies to all states; if the terms of the FMLA are more generous to the employee than the California law, then the employee should file under the FMLA.

Eligibility The law applies to public sector and private sector employers. Public sector employers, including state, local and federal agencies, and local education agencies (schools) must comply with the law regardless of the number of employees. Private sector employers must comply with the law if they have 50 or more full-time or part-time employees (for at least 20 workweeks in the current or preceding calendar year) who work within 75 miles on one another.

To be eligible for family and medical leave, an employee must work for a covered employer and:

· have worked for that same employer for at least 12 months all together, even if not consecutively; and

· have worked 1,250 or more hours in the 12 months prior to the start of the family and medical leave; and

Leave permitted An eligible employee may take up to 12 workweeks of unpaid leave in a 12-month period:

· if the employee is unable to work due to a serious health condition;

· if the employee is caring for an immediate family member (spouse, child, or parent) with a serious health condition; in California, leave also can be taken if caring for a domestic partner; and/or

· due to the birth of and care for a newborn child, or newly placed adopted or foster child.

The 12 weeks of leave do not have to be taken at the same time. For example, leave may be taken for a few days in January, two weeks in early February, one day in late February, three hours in March, etc. Leave may be taken by the week, day or hour. For example, an employee can take family leave to attend medical appointments or to work a reduced schedule (for example, six hours per day instead of eight hours per day). The only limitation is that the total amount of leave cannot exceed 12 weeks in one 12-month period. Accrued paid leave, such as vacation or sick leave, may be used for all or part of the leave. Accrued leave does not extend the length of the leave; it merely provides compensation while the employee is on leave.

A serious health condition as defined by the family and medical leave laws means an illness, injury, impairment, or physical or mental condition that involves:

· incapacity or treatment connected with inpatient care; or

· incapacity requiring more than three calendar days absence from work, school, or regular daily activities and involving continuing treatment by (or under the supervision of) a health care provider; or

· incapacity due to pregnancy, or for prenatal care; or

· incapacity or treatment due to a chronic serious health condition (asthma, diabetes, epilepsy, etc.); or

· permanent or long-term incapacity due to a condition for which treatment may not be effective (Alzheimer's, stroke, terminal diseases, etc.); or

· absences to receive multiple treatments by, or on referral from, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (chemotherapy, physical therapy, dialysis, etc.), including absences due to recovery from such treatment.

Pregnancy The two laws provide different coverage for pregnancy-related conditions. The FMLA includes pregnancy and related medical conditions in the definition of "serious health condition." The CFRA does not include pregnancy in this definition. However, under California law, Pregnancy Disability Leave (PDL) and CFRA do not run at the same time; as a result, female employees in California who have pregnancy-related disabilities may be eligible for an even longer period away from work (more than 12 weeks). Coordinating the three laws – FMLA, CFRA and PDL – is detailed and fact specific, and probably requires the services of an attorney, at least to analyze applicable rights. Please see my Avvo guide on pregnancy discrimination and pregnancy rights:\_id=6&permalink=pregnancy-leave-federal-and-california-rights.

Notice An eligible employee who wishes to use family and medical leave must give reasonable notice to the employer:

· 30 days in advance of the need if the need is foreseeable; or

· as soon as practicable if the need is not foreseeable; generally, this means providing verbal or written notice within one or two business days of learning of the need.

The notice must contain enough information for the employer to understand the employee needs family and medical leave, but does not have to specifically identify the FMLA. The notice must specify the anticipated duration of the leave and should include the first and last day of the leave. The return-to-work date can be updated by subsequent notice to the employer. The notice does no t have to specify a medical diagnosis. The notice can be provided by the employee, the employee’s spouse, the employee's friend, the employee's medical provider, another adult family member or by the employee’s spokesperson or attorney. The notice may be given verbally (by phone or in person) or in writing (by letter, fax, or e-mail).

Suggestion to employees: Written notice is best because it is not subject to dispute. Always keep a copy of the written notice for your own records, in case a dispute arises later.

An employer must notify the employee in advance and in writing that a leave of absence will be considered family and medical leave. Some courts have held that an employer may not include in the 12 week limit any leave time which precedes the written notice.

Medical certification This is detailed in 29 C.F.R. § 825.308. An employer may require medical certification of the need for family leave. Generally, anemployer may request recertification every 30 days (and only for the employee’s own medical condition, not for that of a family member).

However, if the medical certification states the minimum duration of the condition is more than 30 days, then an employer cannot ask for a new certification until after that period of time has passed UNLESS:

-- the employee asks for an extension of the leave;

-- circumstances described in the previous certification have changed; or

-- the employer has a legitimate reason to doubt the need for the leave.

For example, if the medical certification says the employee needs intermittent leave for 50 days, the employer cannot ask for new certification until the 50 days passed.

Nevertheless, if the medical certificate states the employee needs leave for a period of more than six months (such as intermittent leave for eight months), the employer may ask for recertification every six months.

* * * Part II of this guide can be found at

Disclaimer This guide is a summary only. It does not contain all details related to its subject matter. Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney.

* * * All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. * * * Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. * * *

Additional resources provided by the author

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is, and you can search for attorneys by location and practice area. To find a plaintiffs employment attorney outside California, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is, and you can search for attorneys by location and practice area. Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.

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