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An employee is eligible for CFRA leave if the employee:
An employee is eligible for FMLA leave if the employee:
Under both the CFRA and FMLA, employees must work for the employer for at least 12 months in total, but it doesn't have to be 12 consecutive months. If an employee works for an employer, has a break in service that lasts less than seven years, and then comes back to work for the same employer, then the original employment period prior to the break will count for purposes of meeting the 12-month service total for eligibility. However, employment periods prior to a break in service of seven years or more need not be counted.
For example, an employee worked for an employer in 2012 for five months, then returned to work for the employer in January 2023. The employee requested leave for a serious health condition in August 2023. The employee is not yet eligible for CFRA or FMLA, because the break in service lasted longer than seven years, so the employee has not met the legal definition of working for the employer for at least 12 months.
A break in service caused by a military service obligation or written agreement to the contrary would be excused. And nothing prevents an employer from considering employment prior to a continuous break in service of more than seven years so long as the employer does so uniformly for all employees with similar breaks in service.1
If an employee is eligible for family and medical leave and takes less than the full amount of leave allowed, the employee need not re-qualify in terms of the number of hours worked to take additional leave for the same reason as the first leave. The employee also is entitled to take additional leave for the same reason as the first leave even if, under the FMLA for example, fewer than 50 employees now work at the worksite or within a 75-mile radius. An employer may not deny the leave, cut the leave short or deny any subsequent leave taken.
If the additional leave is requested for a different reason than the original leave, the employee must re-qualify (for example, first six weeks of leave was for care of a newborn, but additional leave is requested for the employee’s own illness).
If an employee is not eligible for CFRA or FMLA leave at the start of a leave because the employee has not met the 12-month length of service requirement, the employee may nonetheless meet this requirement while out on a different type of leave entitlement. Leave to which the employee is otherwise entitled counts toward length of service (although not for the1,250-hour requirement). The employer should designate the portion of the leave in which the employee has met the 12-month requirement as CFRA and/or FMLA leave.
Example: An employee is injured on the job and is off work while they receive treatment and workers' compensation benefits. If the employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment.
To be eligible for FMLA, the employee must work at a worksite where the employer employs 50 or more employees either at the worksite or within 75 miles of the worksite. The question often arises as to how an employer can determine if it has 50 or more employees at a “worksite” or within 75 miles of the worksite.
The determination of how many employees are employed within 75 miles of the worksite is based on the number of employees maintained on the payroll. The number is determined at the time the employee gives notice of the need for leave. An employer may not terminate a leave that has already started if the employee count drops below 50.
An employee’s “worksite” will generally be the site the employee reports to, or, if none, from which the employee’s work is assigned.2
Not all employees regularly report to one worksite. Employees such as salespeople, home health care workers, telecommuters and construction workers may report to several locations. If an employee does not have a fixed worksite, the “worksite” is either:
When an employee is jointly employed by two or more employers, the employee’s worksite is the primary employer's office from which the employee is assigned or reports. If the employee has physically worked for at least one year at a facility of a secondary employer, however, the employee’s worksite is that of the secondary employer.3
Sometimes an employer covered under FMLA has an employee who is not eligible for FMLA but is eligible for CFRA. For instance, the employee might not be eligible for FMLA because the employee works at a worksite with less than 50 employees in a 75-mile radius. This employee, however, will be eligible for CFRA if the employee has worked for you for at least 12 months and worked at least 1,250 hours in the last 12 months. For more information, see FMLA and CFRA Interaction.
Both the FMLA and CFRA contain special hours of service requirements for certain airline flight deck or cabin crew employees. Instead of requiring the standard 1,250 hours within the previous 12-month period, specified airline flight crew employees may be eligible for FMLA/CFRA if the employee worked or was paid for the following:
Airline employers should consult with legal counsel on administering FMLA and/or CFRA in this specific industry.
1. 2 CCR sec. 11087(e)
2. 29 CFR. sec. 825.111
3. 29 CFR sec. 825.111(a)(3)
4. Gov’t. Code sec. 12945.2(r); 29 CFR sec. 825.801