Written by attorney Marilynn Mika Spencer

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

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

This is PART II. Please read Part I at

Benefits while on leave A covered employer must maintain group health insurance coverage, including family coverage, under the same terms as for active employees. Benefits such as seniority or paid leave need not accrue during unpaid family and medical leave, provided these benefits do not accrue for employees on other types of unpaid leave. An employer is not obligated to maintain other benefits, such as life insurance, sick leave, education benefits or pension accrual. Upon return to work, all discontinued benefits must be reinstated immediately, with no disqualification period.

Returning to work In most cases, upon return from family and medical leave, an employee must be restored to his or her original job, or to an equivalent job. An "equivalent job" is one that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.

Employer obligations It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by the family and medical leave laws, or to discharge, discriminate or retaliate against any individual for opposing any practice, or due to involvement in any proceeding related to the family and medical leave laws. Employers cannot use the taking of family and medical leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, and family and medical leave cannot be counted under "no fault" attendance policies.

An employer must maintain as confidential all medical information related to family and medical leaves. These records must be kept in files which are separate from ordinary personnel files. The only exceptions are that confidential medical records may be disclosed to supervisors and managers regarding necessary work restrictions or accommodation; to first and aid safety personnel when emergency medical treatment may be required; or government officials investigating the employer.

Enforcing family and medial leave rights To pursue a claim for denial of family and medical leave, reprisal for taking family and medical leave, privacy violations, or any other claim related to family and medical leave rights, the employee must initiate the process.

Under California law (CFRA), an employee must file a claim with the California Department of Fair Employment and Housing (DFEH) within one year of the employer's adverse act. The employee must file this claim before filing a lawsuit in court. California employees may also file under the FMLA, which has a longer time period for filing. See below. To contact the DFEH: (800) 884-1684. For persons with hearing disabilities, use the Videophone for the DEAF at (916) 226-5285 or TTY (800) 700-2320;

Under federal law (FMLA), an employee has two options. The employee can file a charge with the Department of Labor (DOL), Wage and Hour Division, or the employee may file a lawsuit directly in court. In either case, the filing must take place within two years of the violation of the statute. To contact the DOL: Live assistance is available Monday through Friday from 8:00 a.m. to 8:00 p.m. Eastern Time by calling (866) 487-2365), TTY: (877) 889-5627. The number for FMLA information is (866) 487-9243;

Remedies An employee whose rights have been violated under the family and medical leave laws may be entitled to reinstatement, promotion, injunctive relief, lost wages and benefits, direct costs, interest, attorney's fees and cost, compensatory and punitive damages, or double damages for aggravated cases.

* * * Part I 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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