Overview Of FMLA And CFRA - Hudson Martin PC

As a California employer of over 50 employees, you are obligated to provide protected medical leaves to eligible employees under Federal law (Family and Medical Leave Act (FMLA)) and California law (California Family Rights Act (CFRA)). This can be a confusing and complex area of employee benefits.

The attached chart below gives a general overview of the “who, what, and how” of the two medical leave laws. We then answer some frequently asked questions.

Overview Of Job Protected Medical Leaves For Employees

	FMLA	CFRA
Am I covered as an Employer?	If 50 or more employees – YES	If 5+ employees – YES
How much leave?	Max. 12 weeks of leave in a 12- month period EXCEPTION: If employee is the spouse, son, daughter, parent or next of kin for a covered military servicemember who requires care – 26 weeks of leave.	Max. 12 weeks of leave in a 12-month period
Which Employees are eligible?	3 Requirements: 1) Size of Employer: 50 + in a 75-mile radius; and 2) Length of employment: worked for you for 12 months (need not be consecutive); and 3) Hours: 1,250 hours in the 12 mon. prior.	3 Requirements: 1) Size of Employer: 5 + employees; and 2) Length of employment: worked for you for 12 months; and 3) Hours: worked 1,250 hours in the 12 mon. prior.
What reason can an eligible employee take the leave?	1) Employee’s own serious health condition. 2) Caring for a family member (parent, child, spouse) with a serious health condition. 3) Bonding with a newborn, an adopted child or foster child. 4) Pregnancy-related disability. 5) A qualifying exigency relating to a close family member’s military service. 6) Up to 26 weeks to care for an ill or injured service-member	1) Employee’s own serious health condition. 2) Caring for a family member with a serious health condition: parent, child, grandparent, grandchild, sibling, spouse, registered domestic partner, parent-in-law, or a “designated person.”*(See NOTE below) 3) Bonding with a newborn, an adopted child or foster child. 4) A qualifying exigency relating to a close family member’s military service.
How can it be taken:	Consecutively, intermittently, reduced schedule	Consecutively, intermittently, reduced schedule
Is it paid leave?	No, but employees may use sick time/paid time off. We recommend requiring that they do so.	Paid Family Leave program and sick time may be used.

*NOTE: Designated Person: (1) any individual related by blood or whose association with the employee is the equivalent of a family relationship; (2) may be identified at the time they request leave from work; (3) Employers have the right to limit employees to using CFRA leave to care for one designated person per 12-month period.

Frequently Asked Questions

What Must I Do As An Employer?

Post required posters in the workplace.
- FMLA:
  - https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fmlaen.pdf
  - https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fmlasp.pdf
- CFRA:
  - https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2023/01/Your-Rights-and-Obligations-as-a-Pregnant-Employee_ENG.pdf
Give employees the required notices (we provide those in our annual New Hire Packets).
Have a written policy outlining expectations around FMLA/CFRA leave for advance notice, cooperation, and other details. We are happy to review existing policies or prepare new policies for your workplace.
When you learn that an employee is absent for any reason that may qualify as FMLA/CFRA:
1. Send a notice to the employee regarding designating any time off related to the absence as FMLA/CFRA (Form attached).
2. If related to pregnancy, give California Pregnancy Disability Leave forms as well.
3. Respond within 5 business days
4. If not eligible, under FMLA must give at least one reason (ex. Less than 1250 hours worked)
5. If designated as an FMLA/CFRA leave, provide the designation form to employee. (Form attached).
DO NOT: interfere with the exercise of FMLA/CFRA rights.
DO NOT: retaliate against an employee who takes FMLA/CFRA.
After the Leave:
1. Employers must return employees to the same or a comparable position when the leave ends.
2. Sometimes the return to work raises questions about workplace accommodations under the ADA. This is a complex area that can be difficult to navigate. We highly recommend contacting legal counsel to develop an appropriate strategy for re-entry to the workplace if there is a need for accommodation in the workplace.

How Is The 12-Month Period Calculated?

An employer may use:
1. The calendar year.
2. Any fixed 12-month leave year, such as a fiscal year, or a year starting on an employee’s anniversary date.
3. The 12-month period measured forward from the date an employee’s first family leave begins.
4. A rolling 12-month period measured backward from the date an employee uses any family leave.
Let employees know in a written policy how you calculate the 12-month period.
Apply consistently to all employees.
If you want to change to another alternative 12-month leave period:
1. Give at least 60 days’ notice to all employees.
2. In the transition, make sure employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee.

What About Pregnancy-Related Leave?

California has pregnancy-disability leave (PDL) of 4 months (17.5 wks) per pregnancy that is available upon hire (no length or number of worked hours). There are separate notices and forms for this leave.
PDL can run concurrently with FMLA.
PDL cannot run concurrently with CFRA (leave does NOT cover pregnancy).
CFRA would run consecutively with PDL and starts when PDL ends and Baby Bonding begins.
FMLA/CFRA will run concurrently for Baby Bonding.
NOTE: If employee is disabled longer than four months, the employee may be entitled to additional leave as a reasonable accommodation for a pregnancy-related or other disability.

What If Both FMLA & CFRA Apply?

The two laws cover many of the same circumstances, they will often run at the same time.
Where the FMLA law and the CFRA law differ, the most generous/less restrictive leave provisions must be applied.
A CFRA “Designated Person” leave is NOT a leave that would be available under FMLA. This may create a situation where an employee still has FMLA after a CFRA leave. Consult with counsel if this occurs.

What If We Need To Separate The Employee While On Protected Medical Leave?

While an employee enjoys a right to reinstatement, they have no greater rights than if they were not out on leave. The right to reinstatement would end if the employment relationship ends.

An employee may be separated for a legitimate, non-retaliatory, non-discriminatory reason. However, given the protections from retaliation under FMLA and CFRA, we recommend that you contact legal counsel prior to terminating an employee who is out on FMLA/CFRA.

Are There Other Laws That Apply?

Some local governments also impose family and medical leave requirements. There are currently no applicable local laws for Pepe International’s locations.

What Can We Require The Employee Do?

You can require at least 30 days’ advance notice before family and medical leave begins if the need for the leave is anticipated (the expected birth of a child or planned medical treatment).
You can require that the employee confer with you and make a reasonable effort to schedule any planned medical treatment or supervision to minimize disruption of operations (if health care provider approves).
Where advance notice is not possible, you can require the employee to give notice as soon as is feasible. Do not deny for lack of advance notice if emergency or unforeseeable circumstance.
CFRA requires at least verbal notice requesting a CFRA-qualifying leave with expected timing and length.
Employee DOES NOT have to expressly mention CFRA or FMLA. However, the employee must communicate that the leave is needed for a qualifying reason to meet the notice requirement.
Can still be sufficient notice if employee mentions “vacation,” other paid time off or resignation, if the underlying reason is CFRA-qualifying and the employee tells the employer that reason. The employer can then ask: Are you asking for family and medical leave? But DO NOT ask for specific information about the medical condition, just provide the form. If the employee asks to take time off but doesn’t reference a qualifying purpose, an employer can’t ask if the time off is for a qualifying reason.
You can require that the employee answer questions to determine if the leave qualifies for protection. Let them know that failure to respond may result in denial if cannot determine if the leave qualifies.
If initially denied for lack of information, then the employee can give more information that the requested time off is or may be qualifying, then you may ask for more information to determine if a qualifying reason.