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by Erika M. Barbara, J.D.; Senior Employment Law Counsel, CalChamber
“I need leave.” When spoken by a California employee, those three words can strike fear in even the most experienced HR professional. Why? Because many protected leaves of absence are available to employees working in California, some of which apply to all employers and others that apply only if an employer has a certain number of employees. All leave laws have different requirements, which employers must understand and follow to ensure compliance.
One of the most common types of leave requests is for family and medical leave, which is available to eligible employees under the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA). The following article is a high-level overview of key issues that can arise when an employee requests family or medical leave — from an employer responding to a leave request though returning the employee to work after leave concludes.
To properly respond to requests for family and medical leave, employers must know which law applies to them:
Both CFRA and FMLA require that covered employers provide eligible employees with unpaid, job protected leave for certain qualifying reasons. While some of the reasons are common to both laws, others are not. It’s critical that employers understand the differences between qualifying reasons so that leave is properly designated.
Under both CFRA and FMLA, covered employers must provide eligible employees with up to a total of 12 weeks of leave in a 12-month period. The leave can be used for the following qualifying reasons:
Although both laws allow eligible employees to take leave to care for a “family member”, that term is defined differently under each law:
Employers must provide eligible employees with a total of 12 weeks of leave in a 12-month period, regardless of the number of qualifying reasons for leave an employee may experience; i.e., employees don’t get 12 weeks of leave for each qualifying reason that occurs in a 12-month period.
If an eligible employee takes leave for their own serious health condition, child bonding or a qualifying exigency and is eligible under CFRA and FMLA, the leave will qualify under both laws, meaning that each 12-week bank of time will run simultaneously or “concurrently”. If an employee takes leave to care for a family member, whether it is CFRA and FMLA running concurrently or CFRA-only will depend on the identity of the family member for whom they are taking leave.
FMLA also provides 26 weeks of military caregiver leave for an employee who is the spouse, son, daughter, parent or next of kin for a covered military servicemember who requires care.
(Note: Being disabled by pregnancy is a qualifying reason for leave under FMLA but not CFRA, and an employee in that situation would also be covered by California’s Pregnancy Disability Leave law. Handling leave for a pregnant employee presents additional issues, which this article does not address. A detailed discussion of those issues can be found here.)
Leave requests can take different forms. Some employees may specifically request “CFRA/FMLA leave” but employees don’t have to call out the leave laws by name to trigger an employer’s obligations under CFRA and FMLA. Rather, the key is whether the employer has enough information to know that the leave could qualify, such as when an employee says they need “medical leave” or asks about time off after the birth of a child.
Once an employee requests leave, the employer must determine whether the employee is eligible under either or both laws. Employees are eligible for leave under CFRA if they:
Employees are eligible under FMLA if they meet the above two requirements and work at a worksite that has 50 or more employees within a 75-mile radius.
The employer must provide the employee with notice under CFRA and/or FMLA within five business days of receiving the leave request. The notices must include a variety of information, including the employee’s rights under the law(s), whether the employer requires certification to support the leave request and if the employee is not eligible for leave, the reason why.
Employers covered under CFRA can use the CFRA Notice contained in either the CFRA Notice and Designation (Five to 49 Employees) form or the CFRA Notice and CFRA/FMLA Designation (50 or More Employees) form. Employers that are covered under the FMLA can use the FMLA — Notice of Eligibility and Rights and Responsibilities form to provide notice to the employee under that law. Employers covered by both laws should provide the CFRA and FMLA notices at the same time.
Covered employers must also post required notices in the workplace that describe employees’ rights to leave under CFRA and FMLA. There are two separate general notices, one for each law.
Employers can require that employees provide medical certification supporting the request for leave under CFRA/FMLA. Doing so is not required by law but is a best practice. Such a requirement enables employers to confirm the need for leave rather than relying on an employee’s word that they need leave for a qualifying purpose. If employers choose to require certification, they should do so consistently for all employees requesting leave; i.e., don’t single out certain employees to require certification.
Employers should use different certifications depending on the nature of the leave, such as whether the employee is requesting leave for their own serious health condition, to care for a family member with a serious health condition, for military servicemember caregiving or due to a qualifying exigency. If the leave is for child bonding, medical certification is not needed; the only applicable certification would be proof of birth or placement for adoption or foster care. If requiring such certification for bonding leave, employers should be consistent and require it of all parents; i.e., don’t require it from employees who are adopting or fostering a child and not from employees who have given birth.
Employers that require certification must allow an employee at least 15 calendar days to provide the certification.
Once the employer has sufficient information to determine whether the leave qualifies under CFRA and/or FMLA, it has five business days to designate the leave. If an employer doesn’t have sufficient information to evaluate the leave request, it should notify the employee and request additional information.
Employers covered by CFRA can use the CFRA Notice and Designation (Five to 49 Employees) form to designate the leave or inform the employee that additional information is needed to evaluate the leave request, and employers covered by CFRA and FMLA can use the CFRA Notice and CFRA/FMLA Designation (50 or More Employees) form.
When designating leave, it’s important to confirm whether the reason for leave qualifies under both CFRA and FMLA or only under one law and properly designate the leave as such. For example, if an employee is eligible under both CFRA and FMLA and takes leave for their own serious health condition, the leave is designated as “CFRA and FMLA running concurrently.” If the employee is eligible under both laws and takes leave to care for a family member that qualifies under both laws (spouse, parent, child under the age of 18 or an adult dependent child), the leave is also be designated as “CFRA and FMLA running concurrently.” However, if the employee took leave to care for one of the additional family members identified only in CFRA (parent-in-law, child over age 18, registered domestic partner, grandparent, grandchild, sibling or a “designated person”), the leave is be designated as “CFRA-only” and any leave taken would not impact the leave available to the employee under FMLA; i.e. the employee could take 12 weeks of CFRA-only leave to care for a designated person and still have 12 weeks of FMLA leave available to use for another FMLA-qualifying reason (such as child bonding).
Leave interactions such as these can be difficult to manage and require careful handling to ensure leave is properly designated and tracked.
Leave under CFRA and FMLA is unpaid, but employees can apply for wage replacement benefits through California’s Employment Development Department (EDD); employees taking leave for their own health condition can apply for state disability insurance (SDI) benefits, and employees taking leave to care for a family member, to bond with a child or for a qualifying exigency can apply for paid family leave (PFL) benefits.
Employees can also use available paid time such as sick leave, vacation or paid time off (PTO) when taking leave under CFRA and FMLA, including to supplement any SDI or PFL benefits they receive from EDD.
Employers can require employees to use vacation or PTO during CFRA and FMLA leave but only during the “unpaid” portion of the leave — which means any time the employee is not receiving any wages or benefits such as SDI or PFL. Employers should not require the use of paid sick leave during CFRA and FMLA leave because of the protections that apply to mandatory paid sick leave. Similarly, if an employer provides paid sick leave through a PTO plan, they should not require the use of PTO during CFRA and FMLA leave or they run the risk of violating the paid sick leave law.
If an employer provides group health benefits to an employee who goes on leave under CFRA or FMLA, the employer must continue to provide those benefits, in the same manner as when the employee was working, for the duration of the CFRA/FMLA leave.
Properly managing leave under CFRA and FMLA includes ensuring job reinstatement. Leave under CFRA and FMLA is job-protected, which means when the employee’s leave concludes, the employee must be returned to their same or “comparable position,” which means a position that is virtually identical to the employee’s original position in terms of pay, benefits, shift, schedule and working conditions.
If there is an agreed upon return-to-work date when the leave begins, the employer must reinstate the employee on or by that date. If the return date changes, the employee must be reinstated within two business days of when the employee notifies the employer that they are ready to return.
An employer can require that an employee who takes leave for their own serious health condition provide a release to return to work. However, the employer must have a uniformly applied practice of requiring releases from employees returning to work after illness, injury or disability, and the employee must be informed of the requirement before the leave begins.
Employers should not have policies or practices of terminating employees who take medical leave for their own serious health condition and cannot return to work after they exhaust CFRA/FMLA leave. If an employee exhausts all available leave under CFRA and FMLA but is unable to return to work because of a disability, the employer must engage in the interactive process to determine whether an extension of leave needs to be provided as a reasonable accommodation.
An employer can refuse reinstatement after CFRA and FMLA leave under very limited circumstances. Employers should consult with legal counsel before refusing to reinstate an employee returning from leave.