The component is not available at this moment. Please contact the site administrator.
The CFRA and the FMLA don’t apply to every employer. They apply only to employers of a certain size, measured by how many employees they have. The following sections discuss employer coverage requirements and issues under both laws.
The CFRA applies to all private employers that "directly employ" five or more employees and all public employers regardless of size.1
For purposes of counting employees for coverage, the law includes full-time and part-time employees, commissioned employees, employees on paid or unpaid leave such as CFRA, pregnancy leave, disciplinary suspension, or any other employer-approved leave of absence. It also includes out-of-state employees. Employees on layoff do not count.
CFRA regulations state that “directly employs” means the employer maintains an aggregate of at least five part- or full-time employees to perform services for a wage or salary for any part of the day on which the unlawful conduct occurred or on a “regular basis” as that term is defined.2
The regulations explain that “regular basis” refers to the nature of a business that is recurring, rather than constant. To illustrate, the regulation provides the example of an industry with a three-month season, stating that if an employer employs five or more individuals during that season, then the employer “regularly employs” the requisite number of employees to be covered by the act. In other words, employers may be covered even if they do not have five employees working throughout the year, so long as five or more employees are on the payroll during the season.3
The FMLA applies to all private employers with 50 or more employees and all public employers regardless of size.
If you are covered by the FMLA, you are also covered by the CFRA and will have to become familiar with the differences between the two. In many instances, the two leaves will likely run concurrently, but there are some circumstances in which CFRA and FMLA are administered separately.
For purposes of counting employees for coverage, the law includes full-time and part-time employees, commissioned employees, employees on paid or unpaid leave who are expected to return to active employment. Employees on layoff do not count.
You remain covered by FMLA, even when your employee count falls below 50 employees until you reach a future point where you no longer have employed 50 employees for 20 workweeks in the current and preceding year. These workweeks need not be consecutive.4
Example: An employer who met the 50 employees/20 workweeks test in the calendar year as of September 1, 2023, dropped below 50 employees before the end of 2023 and continued to employ fewer than 50 employees in all workweeks throughout calendar year 2024. Therefore, the employer would continue to be covered throughout calendar year 2024 because it met the FMLA’s coverage criteria for 20 workweeks of the 2023 calendar year.
A worker jointly employed by two employers must be counted by both employers for purposes of determining coverage and eligibility under the CFRA and the FMLA, regardless of whether just one employer actually issues payment to the worker.5
The determination of whether a joint employment relationship exists is based on the totality of the entire relationship between the two employers, including, for example, whether an agreement exists between the employers to share an employee’s services, whether one employer acts in the interest of another in relation to the employee, and whether the employers share control of the employee directly or indirectly. When employees perform work that simultaneously benefits two or more employers or perform work for two or more employers during the workweek, a joint employment relationship will likely exist.6
While the existence of joint employment is based on the entire relationship, federal regulations state that “joint employment will ordinarily be found to exist when a temporary placement agency supplies employees to a second employer.”7
In joint employment relationships, only the primary employer is responsible for giving required notices to its employees, providing CFRA and/or FMLA leave and maintaining health benefits.8 When determining which party is the primary employer, consider which party has the authority/responsibility to:
For employees of temporary placement agencies, for example, the placement agency most commonly would be the primary employer, according to the federal regulations.9
A Professional Employer Organization (PEO) contracts with client employers to perform administrative functions, such as payroll, benefits, regulatory paperwork and updating employment policies. A PEO, under the FMLA/CFRA, does not create a joint employment relationship with a client organization’s employees when the PEO merely performs administrative functions.10 However, if the PEO has the right to hire, fire, assign or direct and control the client’s employees or it benefits from work that employees perform, a joint employment relationship may be established.12
Both the CFRA and FMLA require employers to provide up to twelve weeks of family and medical leave to eligible employees within a 12-month leave entitlement period, with one exception, FMLA’s military caregiver leave, which provides up to 26 weeks of leave.
“Twelve weeks” means the equivalent of twelve normally scheduled workweeks. For eligible employees working more or less than five days a week or working alternative work schedules, the number of working days constituting 12 weeks is calculated on a pro rata or proportional basis.
If an employee takes leave on an intermittent or reduced work schedule, only the amount of leave actually used can be counted toward the 12 weeks of leave. For example, if an employee needs physical therapy that requires the employee to be absent from work two hours per week, only those two hours can be charged against the employee’s family and medical leave entitlement.
If an employee is normally required to work overtime, but can’t because of a CFRA/FMLA qualifying reason limiting that employee’s ability to work overtime, the hours the employee would have been required to work can be counted against the employee’s leave entitlement as intermittent or reduced schedule leave.
Example: An employee is normally required to work 48 hours per week. Because of a serious health condition, the employee can only work 40 hours per week. The other eight hours can be taken, and counted, as CFRA leave.
Voluntary overtime hours that an employee does not work due to a serious health condition cannot be counted against the employee’s CFRA leave entitlement.
If an employer has made a permanent or long-term change to the employee’s schedule (for reasons other than CFRA or FMLA, and prior to the employee notice of need for leave), the hours worked under the new schedule should be used for making the calculation.
If a holiday falls within a week used as family and medical leave, the week is counted as a week of family and medical leave. However, if an employee uses CFRA or FMLA leave in increments of less than one week, the holiday will not count against the employee’s CFRA or FMLA leave unless the employee was otherwise scheduled and expected to work during the holiday.
If your business activity temporarily ceases and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas and New Year holidays or the summer vacation, or an employer closing the plant for retooling or repairs), the days your activities have ceased do not count against the employee’s leave entitlement.
Employees on unpaid CFRA and/or FMLA leave usually do not receive holiday pay if they are not working on the holiday. If your policy pays holiday pay during other leaves of absence, you should pay holiday pay during CFRA and FMLA.
If an employee is on paid CFRA and/or FMLA leave, follow your policy regarding holiday pay during a paid leave.
A special method for calculating leave usage exists for airline flight crews. Under FMLA regulations, an airline flight crew employee is entitled to 72 days of leave during any 12-month period for FMLA qualifying reasons other than military caregiver leave and 156 days of leave during a single 12-month period for military caregiver leave. The regulations also provide that, if an airline flight crew employee takes leave intermittently or on a reduced schedule, the employer must account for the leave using an increment no greater than one day.14
Like the FMLA, the CFRA contains special rules for airline flight crew employees. At the time of publication, however, the CRD has not issued regulations establishing a specific method for calculating flight crew leave usage as FMLA regulations do. Employers should consult with legal counsel about flight crew leave calculation under the CFRA.
When FMLA leave is used for child bonding and both parents work for the same employer, the FMLA allows the employer to limit the two employees to a combined total of 12 weeks of family and medical leave. The CFRA, however, does not contain this exception, meaning parents are entitled to 12 weeks each under CFRA.
Notwithstanding this FMLA child-bonding limitation on leave, a husband and wife can each take up to 12 weeks of leave to care for a child with a serious health condition, even if they both work for the same employer.15
Employees can either take leave all at once or intermittently, with some restrictions.
For the minimum duration of intermittent leave for an employee’s serious health condition or for care of a family member, you can limit family and medical leave increments to the shortest period that your payroll system uses to account for absences or use of leave, provided that it is not greater than one hour. For example, if employees must use vacation or sick time in half-hour increments or more, then you can require an employee leaving 20 minutes before the end of the workday for treatment for a serious health condition to use a half hour of the employee’s family and medical leave entitlement.
If employees need intermittent or reduced schedule leave for planned medical treatment, they must make a reasonable effort to schedule the treatment to not unduly disrupt their employer’s operations.16
Under the CFRA, the minimum duration of intermittent leave for child bonding is two weeks.
However, you must grant a request for leave under CFRA of less than two weeks’ duration on any two occasions and may grant requests for additional occasions of leave lasting less than two weeks.17
Under FMLA regulations, eligible employees can work an intermittent or reduced schedule for child bonding only if the employer agrees.18
All leave for child bonding must conclude within one year of the birth of the child, or one year from the date the child was placed with the employee for adoption or foster care.
Where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to begin or end work mid-way through a shift, such as where a flight attendant is scheduled to work aboard an airplane or a laboratory employee is unable to enter or leave a sealed “clean room” during a certain time period, the entire period that the employee is forced to be absent is designated as CFRA leave and counts against the employee’s CFRA entitlement.
However, an employee must be permitted to return to work if the employee is able to perform other aspects of the work that are not physically impossible, such as administrative duties, and thereby shorten the time designated as CFRA leave.19
If an employee anticipates the need for intermittent leave or leave on a reduced work schedule based on planned medical treatment for the employee or a family member, you can require the employee to transfer temporarily to an available alternative position. This alternative position must offer the equivalent rate of pay and benefits; the employee must be qualified for the position; and the position must better accommodate recurring periods of leave than the employee’s regular job. The alternative position need not consist of equivalent duties.
Transfer to an alternative position includes altering an existing job to accommodate the employee’s need for intermittent leave or reduced work schedule and must comply with any applicable collective bargaining agreement or employer leave policy, the Fair Employment and Housing Act, and any other applicable state or federal law. The employer must not transfer the employee to an alternative position to discourage the employee from taking leave or otherwise to work a hardship on the employee.
1. 2 CCR sec. 11087(d)
2. 2 CCR sec. 11087(d)(1)
3. 2 CCR sec. 11008(d)(1)(A)
4. 29 CFR sec. 825.106(b)(1)
5. 29 CFR sec. 825.105(f)
6. 29 CFR sec. 825.106(d); 2 CCR sec. 11087
7. 29 CFR sec. 825.106; 2 CCR sec. 11087
8. 29 CFR sec. 825.106(b)(1)
9. 29 CFR sec. 825.106(c)
10. 29 CFR sec. 825.106(c)
11. 29 CFR sec. 825.106(b)(2)
12. Id.; 2 CCR secs. 11087, 11096
13. 29 CFR sec. 825.205(b)(3); 2 CCR sec. 11090(c)
14. 29 CFR sec. 825.802
15. 29 CFR sec. 825.120(a)(6)
16. 29 CFR sec. 825.203; 2 CCR sec. 11090(c)(2)
17. 2 CCR sec. 11090(d)
18. 29 CFR sec. 825.120(a)(6)
19. 29 CFR sec. 825.205(a)(2); 2 CCR sec. 11090(e)(3)