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

A. FMLA Purpose: The U.S. Congress enacted the federal family and medical leave act (“FMLA”) on February 5, 1993, and the law became effective for most employers in August 1993. Congress assigned the enforcement of the FMLA to the U.S. Department of Labor which continues to enforce the law today. The purpose of the FMLA was to balance work and family life by allowing employees to take unpaid leave for certain periods of time for specific medical and family related reasons. 29 U.S.C. § 2601(b).
See: http://www.dol.gov/dol/esa/public/regs/compliance/whd/1421.htm

B. CFRA Purpose: In 1991 California had already passed its own version of a family leave statute when the State passed the California Family Rights Act (“CFRA”). California amended its CFRA in 1993 to make the statute closely resemble the federal FMLA, with a few distinctions, among those the treatment of pregnancy leave. Govt. Code § 12945.2, Cal. Code Regs. § 7279.
See: http://www.dfeh.ca.gov/cfra.htm

C. Pregnancy Discrimination Act Purpose: California's CFRA does not cover pregnancy related situations in the state, which are subject to California's Pregnancy Discrimination Act (“PDA”). Govt. Code § 12945, Cal. Code Regs. § 7291. Under federal law, pregnancy situations are covered both by Title VII of the Civil Rights of 1964 (i.e., with respect to discrimination claims based on pregnancy) and by FMLA (i.e., with respect to leave requirements that pregnancies generate).

A. Employer Coverage: For FMLA or CFRA to cover an employer, the employer must fall into all of the following categories:

1. Must have had at least 50 full time and/or part time employees during 20 weeks of the prior or current year.

2. For FMLA the employer must have those employees within a 75 mile radius of any single covered work site, whereas under CFRA, the employer merely needs to have at least 50 employees residing within the state of California.

B. Employee Coverage: For an employee to have FMLA or CFRA coverage, the employee must meet all of the following requirements:

1. Must have worked for the covered employer at least one year.

2. Must have worked at least 1250 hours during the past one year period.

C. Reasons for Leave: Employees may take leave for the birth or adoption of a child, or to care for a serious health condition that affects the employee, a child, parent, or spouse. The FMLA also allows FMLA leave for one's own pregnancy.

1. Serious Health Condition is defined as any illness, injury, impairment, or physical or mental condition involving in-patient care or continuing medical treatment by a health care provider.

2. The definition includes: heart attacks, strokes, appendicitis, severe arthritis, complications from other medical procedures.

D. Pregnancy Discrimination Coverage: Pregnant employees, for federal PDA protection, must work for an employer having at least 15 or more employees, whereas California employees are protected from pregnancy discrimination when they work for employers with at least five employees.

A. FMLA / CFRA Leave Time Available: Employer must make 12 weeks of unpaid leave available per “year,” which may be defined as:

1. Calendar year

2. Fiscal year

3. Employee annual tenure year

4. Annual year starting on date employee takes first leave (“rolling year”)

B. Purpose of FMLA / CFRA Leave: Employees may take up to 12 weeks of leave for any of the following purposes:

1. Birth of child

2. Adoption, placement, or foster care of a child

3. Care of parent, spouse or child with a serious health condition

4. Care for employee's own serious health condition

5. Exceptions to the 12 week rule:

a. Employee's own pregnancy [Note this category is not included under CFRA]

b. Employers may restrict leave to 12 weeks combined for husband/wife employees of the same employer when they seek leave for birth, adoption, care of their common child.

C. Group health insurance: The employer during the 12 weeks of leave must maintain health insurance at the same level.

1. An employee who fails to return at the end of 12 weeks permits an employer to recover premiums paid for employee.

2. However, an employee who fails to return because of circumstances beyond his/her control, disables the employer from recovering premiums paid.

D. Reinstatement Rights: By returning within the 12 weeks, the employee has the right to return to the “same” or “equivalent” position s/he held prior to leave.

1. Equivalent is different from “similar” or “comparable.”

2. Employers need not reinstate the highest paid 10% of the workforce where “substantial and grievous economic injury” would occur to the business.

A. Constant, Continuous Leave: Employees may take, in addition to continuous leave, intermittent and reduced schedule of hours leave.

1. Employers must allow leave for medical appointments.

2. Employers need not allow intermittent leave for the birth or adoption of a child.

3. Employers may force transfer employees taking intermittent leave to jobs that fit their intermittent leave schedule.

B. Paid vs. Unpaid Leave:

1. Employers need not pay for leave, unless the employer pays for other medical leaves.

2. Employers may require employees to utilize available sick leave and vacation leave for either FMLA or CFRA leave.

A. Foreseeable Leave:

1. Employers may require 30 days advance notice for birth, placement, adoption or other forms of foreseeable leave.

2. Employers may require employees to schedule medical appointments so as not to disrupt the employer's operations.

B. Unforeseeable Leave: Employers may not require prior notice.

C. Certifications: Employer may require employee certifications stating:

1. Date the condition started.

2. Predicted duration of the condition.

3. The fact that care for a family member is needed.

D. Second Opinions: Employer may require a second, employer paid, opinion.

E. Employer Notices Required:

1. Notice of use of an annual period other than calendar year.

2. Notice of rights and duties under FMLA, CFRA if such rights and duties are not outlined in an employee handbook.

3. Notice to employee of how health insurance premium payments are handled.

A. The employer is "aggravated" about not being able to find a permanent replacement for that position for the full 12 weeks.

B. The employer wonders whether the health condition is really "serious"

1. Breast augmentation.

2. Sex reassignment surgery. San Francisco has recently adopted a City payment policy for such surgeries.

3. Cold - Flu - Bronchitis - Pneumonia.

C. The employee “disappears,” does not show up after 12 weeks, and the employer does not know what happened.

D. The employee has no income during the 12 weeks from which to deduct insurance premium payments.

E. The employer discharges the employee for attendance before learning that the employee has a serious medical condition that kept that person away from the job.

F. The employer does not have a written policy on how to treat leaves for purposes of seniority which determines when benefits begin.

G. The employee gets ill at the end of the calendar year and wants 24 weeks off.

H. The female employee has taken four (4) months off for pregnancy leave, and now she requests another 12 weeks off during the same year for another medical problem that may, or may not, be related to the birth of her child.

A. Remedies Available:

1. Employees pursuing rights under the FMLA may either file complaints with the U.S. Dept. of Labor or file a private lawsuit directly in Court. The employee must file the lawsuit within two years of the violation, a period not stayed by the Dept. of Labor's investigation.

2. Employees pursuing rights under the CFRA must first file a timely (i.e., within one year) complaint with the Calif. Dept of Fair Employment & Housing, receive a right to sue letter, and then file a court complaint within one year of the right to sue letter.

B. Damages Available:

1. Both FMLA and CFRA allow the full panoply of damages including lost wages, benefits, emotional distress damages, attorneys' fees, expert witness fees, and costs.

2. FMLA specifically allows the recovery of liquidated damages in an amount equal to other losses as a penalty to any employer violating the FMLA.