Employment Rights Attorneys: Family and Medical Leave Act & California Family Rights Act

A. to take up to 12 weeks of unpaid leave in a 12-month period;

B. to return to the same or equivalent position after the leave; and

C. to continue receiving health care benefits to which the employee was entitled prior to leave.

A. for the birth of the employee's child or the placement of a child with the employee for adoption or foster care;

B. to care for an immediate family member (the employee's minor child, adult disabled child, parent, or spouse) with a “serious health condition”; and

C. to care for their own “serious health condition.”

A. worked for the employer for at least 12 months,

B. worked at least 1,250 hours during the 12 months preceding the leave, and

C. employed at a work site where 50 or more employees are employed by the employer within a 75-mile radius of that work site.

A. employs 50 or more employees during each of 20 or more workweeks in the current or preceding calendar year;

B. is a state or local government;

C. is a school district; or

D. is the federal government.

A. employees need not take more leave than needed.

B. Intermittent leave or reduced (part-time) schedule for a serious health condition is a right.

C. Employers may require that Intermittent leave for bonding be taken in two-week increments.

D. The minimum leave increment is one hour, or less, if the employer's payroll system tracks absences shorter than an hour.

E. Employers have the right to temporarily transfer employee to an alternate position, for which an employee is qualified, that better accommodates intermittent absences or a reduced schedule.

1. The alternative position must have equivalent pay and benefits.

2. The employee has the right to return to her original position after your leave.

A. An illness, injury, impairment, or physical or mental condition that:

1. causes incapacity; and

2. requires at least one of the following:

a) overnight stay in a hospital or similar facility

b) continuing treatment by a health care provider

A. Hospitalization for at least one night.

B. Absence Plus Treatment

C. Chronic Condition (e.g. asthma, migraines, diabetes, epilepsy);

D. Permanent/long-term condition (e.g. Alzheimer's, terminal-stage cancer, severe stroke);

E. Condition requiring multiple treatments (e.g. chemotherapy, radiation, dialysis, physical therapy for severe arthritis);

F. Pregnancy and/or prenatal care (under FMLA).

A. provide advance notice if the leave is foreseeable (30 days);

B. provide notice as soon as practicable, if the leave is not foreseeable;

C. provide at least verbal notice of the need for leave;

D. provide enough information for the employer to determine that the leave may be for a FMLA/CFRA-qualifying reason.

A. post notice in a conspicuous place in the workplace where employees congregate;

B. include information about FMLA/CFRA leave in any employee handbook or other similar materials;

C. provide, within two business days, information about FMLA/CFRA upon request or when leave is requested by an employee;

D. designate the leave as FMLA/CFRA leave.

A. The information provided on the medical certification should be limited to:

1. the date the serious health condition began, if known;

2. the probable duration of the condition;

3. a statement of medical facts sufficient to indicate that employee has a serious health condition and is temporarily unable to perform one or more of the essential functions of his or her position.

4. in CA, diagnosis is not required!

A. employer must request certification in writing and give notice of FMLA rights and explain consequences of not providing certification;

B. must allow at least 15 days to comply;

C. cannot request more information than is specified on the CFRA sample form;

D. must notify employee if certification submitted is inadequate and give employee a reasonable opportunity to correct.

A. An employer may request recertification every 30 days, unless the previous certification has not yet expired.

B. An employer may request a second or third opinion only for an employee's own serious health condition, not including pregnancy disability. Any second or third opinions are at the employer's expense.

A. An employer may require a return-to-work certification under a uniform policy applied to all employees returning from sick or disability leave.

B. However, the certification may be required only of an employee taking leave for her own serious health condition and may only concern the condition for which she took leave.

A. An employer must advise the employee of this requirement.

B. An employer may not require a return-to-work certificate after intermittent leave.

C. The employer cannot require a second or third opinion on a return-to-work certificate.

A. vacation, personal, or sick days, at employer or employee's option

B. workers' compensation

If you are on leave due to an on-the-job injury, your employer may request that you be evaluated for a light duty position. If you are offered a light duty position and choose not to take it, you are still entitled to FMLA/CFRA leave but can be denied workers' compensation benefits.

C. SDI or employer's own disability plan

A. The employee has a right to request and exercise her right to take FMLA/CFRA leave without interference, denial, or restraint of any right provided under the statutes.

B. The employer may inquire about the employee's status and intent to return to work while she is on leave.

C. The employer may not discourage the employee from using leave or use the employee's taking of leave as a negative factor in employment decisions, such as a termination based on a no-fault attendance policy.

A. A court may award the following remedies for a plaintiff who has successfully brought legal action against an employer for violations of the FMLA and the CFRA:

1. Injunctive relief

2. Declaratory relief

3. Compensatory damages

4. Punitive damages, if the employer acted with malice or reckless indifference (CFRA only)

5. Liquidated damages, if the employer acted with malice or reckless indifference (FMLA only)

6. Attorney's fees

7. Pre- and Post-Judgment Interest

A. CFRA -- administrative exhaustion requirement

1. file with DFEH within one year

2. file in court within one year of right to sue letter

B. FMLA -- no administrative exhaustion requirement

1. but may file with DOL

2. file in court within two years, three years if willful violation

California has its own, more protective state law regarding pregnancy disability, which not only covers pregnancy disability leave but also prohibits discrimination on the basis of pregnancy.

A. Eligibility requirements

1. PDL covers all California employers with 5 or more employees.

2. PDL has no requirement for hours worked/years of service

B. Health care benefits

1. PDL does not require benefits to continue.

2. Compare to other disabilities.

C. Use of vacation days

1. PDL allows employee to choose to use them.

A. Up to four months of unpaid leave for a disability due to pregnancy; childbirth; or a related medical condition.

B. This leave is separate from the twelve week leave available under CFRA. The time off for PDL is considered FMLA leave, and therefore, runs concurrently.

A. To request a reasonable accommodation for conditions related to pregnancy, childbirth, or related medical conditions, with the advice of her health care provider;

B. To use sick leave, and have the option of using accrued vacation leave;

C. To obtain SDI benefits during leave;

D. To receive any other benefits (wages, health care benefits, etc.) provided to other employees with non-pregnancy-related temporary disabilities;

E. To return to the “same or comparable” job after leave ends; and

F. To be free of retaliation for asserting the right to take PDL.

A. To provide her employer with reasonable notice of need for leave; and

B. To provide medical certification documenting the need for leave and the approximate duration of leave.

A. An employer must provide a pregnant employee with the right to transfer to a less strenuous or hazardous position if it has a policy, practice, or collective bargaining agreement authorizing the transfer of other temporarily disabled employees.

B. If an employer does not have such a transfer policy, a pregnant employee is entitled to a transfer if the transfer:

1. can be reasonably accommodated;

2. is requested based upon the advice of her physician; and

3. is requested by the pregnant employee.

C. An employer is not required to create a job to accommodate a pregnant employee or discharge any employee, transfer any employee with more seniority, or promote an employee who is not qualified to perform the job.

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