This page contains the following information:

• Medical Care for the Employee (CFRA/FMLA)
• Family Care (CFRA/FMLA)
• Medical Care for the Employee’s Pregnancy Related Disability (FMLA Only)
• Child Bonding (CFRA/FMLA)
• Leave for a Qualifying Exigency (CFRA/FMLA)
• Military Caregiver Leave (FMLA Only/Part of leave may run concurrent with CFRA)

Medical Care for the Employee (CFRA/FMLA)

Both CFRA and FMLA allow for leave for the employee’s own serious health condition.

Serious health conditions do not include every illness or ailment an individual might experience. CFRA and FMLA regulations specifically define “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves either “inpatient care” or “continuing treatment.”

“Inpatient care” means a stay in a hospital, hospice or residential health care facility, any subsequent treatment in connection with such inpatient care, or any period of “incapacity,” which means the inability to work, attend school, or perform other regular daily activities due to a serious health condition, its treatment, or the recovery that it requires. 1

“Continuing treatment” is ongoing medical treatment or supervision by a health care provider.

Under the implementing regulations, a serious health condition may involve one or more of the following:

• Hospitalization or a stay in hospice or residential health care facility.
• Absence for more than three consecutive days plus treatment from a healthcare provider.
• Chronic condition that continues over an extended period of time and requires periodic visits for treatment from a healthcare provider. It may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
• Permanent or long-term conditions requiring supervision (e.g., Alzheimer’s, a severe stroke or the terminal stages of a disease).
• Multiple treatments for non-chronic conditions either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity in the absence of medical intervention treatment, such as cancer (chemotherapy, radiation, etc.) severe arthritis (physical therapy), kidney disease (dialysis).
• A period of incapacity due to pregnancy, or for prenatal care. NOTE: An employee’s own incapacity due to pregnancy is covered as a serious health condition under FMLA but not under CFRA.

Things that don’t generally qualify as serious health conditions may, for example, include:

• Routine physical examinations
• Eye examinations
• Dental examinations
• Cosmetic surgery
• Common cold/flu
• Earaches
• Headaches (other than migraines)

Sometimes, non-serious issues may turn into serious health conditions when hospital care or complications develop. Employers uncertain about whether an employee’s condition qualifies for leave should consult with legal counsel before denying the leave request.

Family Care (CFRA/FMLA)

CFRA and FMLA both allow leave for the purpose of caring for a family member with a serious health condition. The same definition of serious health condition discussed above applies for purposes of family care.

The CFRA provides leave to take care of a parent, spouse, parent-in-law, child, registered domestic partner, grandparent, grandchild, sibling, or a “designated person” with a serious health condition.2 The FMLA is not as expansive as CFRA, only providing leave to take care of a parent, spouse or child. For purposes of taking family and medical leave, the law defines these family members as follows.

Parent

A biological, foster or adoptive parent; a stepparent; a legal guardian; or other person who stood in loco parentis to the employee when the employee was a child. A biological or legal relationship is not necessary for a person to have stood in loco parentis to the employee as a child.

The CFRA also provides leave to care for a parent-in-law, i.e., the parent of a spouse or domestic partner, but the FMLA does not.3

Spouse

Under the CFRA, spouse means a partner in marriage, including registered domestic partners and same-sex partners in marriage.4

Spouse under the FMLA means a husband or wife as defined or recognized in the state where the individual was married and includes individuals in same-sex marriages or common law marriages. Spouse also includes a husband or wife in a marriage that was validly entered into outside of the United States, if the marriage could have been legally entered into in at least one state. The FMLA does not cover registered domestic partners.

It does not include unmarried people living together, but does include people who are legally married who do not live together.

• Employers must allow employees to take FMLA leave to care for their same-sex spouse with a serious health condition, for a qualifying exigency and for other qualifying reasons.

Registered Domestic Partner (CFRA only)

CFRA allows an employee to take leave to care for a registered domestic partner with a serious health condition (for more information, see Marital Status). FMLA does not cover registered domestic partners.

Child

A biological, adopted or foster son or daughter; a stepson or stepdaughter; a legal ward; or a child of an employee who stands in loco parentis to that child. The CFRA defines child to include a biological, adopted or foster child, a stepchild, a legal ward, a child of an employee or the employee’s domestic partner, or a person to whom the employee stands in loco parentis. The FMLA definition is similar to the CFRA, but there are important differences. The FMLA doesn’t cover children of domestic partners and, most notably, the FMLA will only cover an adult child (age 18 or older) if the adult child is incapable of self-care due to a disability.

Under the CFRA, the legal term “ in loco parentis ” means in place of a parent, and a person standing in loco parentis is charged with a parent’s rights, duties and responsibilities. It does not require a biological or legal relationship.

The current FMLA regulations define “ in loco parentis ” as including “those with day-to-day responsibilities to care for and financially support a child,” or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.5

The U.S. Department of Labor (DOL) issued an Administrator’s Interpretation clarifying the definition of “son or daughter” with regard to an employee standing in loco parentis to a child. Per the DOL’s interpretation, an employee who intends to assume the responsibilities of a parent ( in loco parentis ) is not required to establish that the employee provides both day-to-day care and financial support. Either day-to-day care or financial support can establish the relationship. The interpretation states that the FMLA statute and regulations do not restrict the number of parents a child can have under the FMLA.6

The DOL’s interpretation is not a regulation and does not carry the weight of the law or regulations implementing the law. If you are in doubt about the standing of an employee who wants to take leave under FMLA, consult legal counsel before denying the leave.

Sibling (CFRA only)

Under the CFRA, “sibling” means a person related to the employee by blood, adoption, or by having a common legal or biological parent.

Grandchild (CFRA only)

Under the CFRA, “grandchild” means the child of an employee’s child.

Grandparent (CFRA only)

Under the CFRA, “grandparent” means a parent of the employee’s parent.

Designated Person (CFRA only)

Employees can take CFRA leave to care for a “designated person” with a serious health condition.7 Under the CFRA, “designated person” means any individual “related by blood or whose association with the employee is the equivalent of a family relationship.”8 The designated person may be identified by the employee at the time the employee requests the leave.

An employer may limit an employee to one designated person per 12-month period.

Medical Care for the Employee’s Pregnancy Related Disability (FMLA Only)

Pregnancy related disabilities are covered as serious health conditions under the FMLA, but not under CFRA.9 This may lead to additional leave entitlements under California law. For more information, see Leave Interaction.

Child Bonding (CFRA/FMLA)

FMLA and CFRA both allow bonding leave after the birth of an employee’s child, or in connection with placement of a child with an employee for adoption or foster care.

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.

FMLA runs concurrently with state pregnancy disability leave (PDL); CFRA does not.

If CFRA leave for child bonding is taken directly after PDL, there is a special employee eligibility rule — when determining whether the employee meets the 1,250 hour requirement, employers must look at the 12-month period immediately preceding the employee’s first day of PDL, not the first day of the subsequent CFRA leave.

• An employee who has exhausted PDL/FMLA for a pregnancy-related disability may be entitled to an additional 12 weeks of CFRA-only child bonding leave. For more information see Leave Interaction.

Leave for a Qualifying Exigency (CFRA/FMLA)

Both FMLA and CFRA allow for 12 weeks of leave in a 12-month period because of any “qualifying exigency” related to the covered active duty or call to covered active duty of the employee’s spouse, child, parent or, for CFRA only, domestic partner.

There are specific eligibility requirements for qualifying exigency leave. In order for the employee to take the leave:

• The employee’s spouse, child, parent, or for CFRA only, domestic partner must be a member of the Armed Forces (including the National Guard and Reserves); and
• The member must be on covered active duty status, call to covered active duty status or notified of an impending call or order to covered active duty. “Covered active duty” means:
• For members of the Regular Armed Forces — duty during the deployment of the member with the Armed Forces to a foreign country.
• For members of a Reserve component of the Armed Forces (members of the National Guard and Reserves) — duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in support of a contingency operation.

The type of events that count as “qualifying exigencies” for which an employee may take FMLA/CFRA leave, include the following:

• Short notice deployment — a period of up to seven calendar days may be taken to address any issue arising from a short-notice deployment (i.e., deployment with seven or less days of notice);
• Military events and related activities — official events or family support or informational briefings;
• Childcare and school-related activities — including arranging for alternative childcare, providing childcare on an urgent basis, enrolling or transferring schools or day care, attending school or daycare meetings;
• Financial and legal arrangements;
• Counseling;
• Parental care activities — time needed to care for a military member’s parent who is incapable of self-care, such as arranging for alternative care and providing care on an immediate basis;
• Rest and recuperation — eligible employees may take up to fifteen calendar days of leave to spend time with a covered military member on short-term, temporary, rest and recuperation leave;
• Post-deployment activities — military-sponsored arrival or reintegration briefings (within 90 days of end of covered active duty) and to address issues relating to death of a servicemember; and
• Additional activities — any other event that the employee and employer agree is a qualifying exigency.

Military Caregiver Leave (FMLA Only)

FMLA also provides eligible employees up to 26 weeks per single 12-month period to care for an ill or injured covered servicemember with a serious injury or illness. Military caregiver leave under FMLA differs from the other FMLA leaves and from CFRA. It:

• Allows for 26 weeks versus 12 weeks
• Covers more family members
• Allows for leave to care for family members with “serious injuries or illnesses,” as opposed to FMLA/CFRA’s “serious health condition”
• Contains different certification requirements

• There is no corresponding CFRA entitlement. However, there may be situations where CFRA would run concurrently and cover the first 12 weeks of that leave.

The employee seeking military caregiver leave must be either the spouse, child, parent or next of kin to the covered servicemember.

Next of Kin

The “next of kin” of a covered servicemember is the nearest blood relative, other than the veteran’s spouse, parent, son, or daughter, in the following order of priority:

1. A blood relative who has been designated in writing by the servicemember as the next of kin for FMLA purposes
2. A blood relative who has been granted legal custody of the servicemember
3. Brothers and sisters
4. Grandparents
5. Aunts and uncles
6. First cousins

When a servicemember designates a blood relative as next of kin in writing for FMLA purposes, that individual is considered a servicemember’s only FMLA next of kin. When a servicemember has not designated a next of kin in writing for FMLA purposes, and there are multiple family members with the same relationship level to the servicemember, all such family members are the servicemember’s next of kin, and may take FMLA leave to provide care.

Example: A veteran has three siblings and has not designated a blood relative to provide care. In this case, all three siblings would be considered the veteran’s next of kin. Alternatively, if the veteran has one or more siblings, and designates a cousin as the next of kin for FMLA purposes, then only the designated cousin is eligible as the veteran’s next of kin.

Covered Servicemember

A covered servicemember, for whom employees can take up to 26 weeks of FMLA, is either:

• A current member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is in outpatient, or is on the temporary disability retired list, for a serious injury or illness.
• A veteran of the Armed Forces (including a member of the National Guard or Reserves) discharged within the five-year period before the family member first takes military caregiver leave to care for the veteran and who is undergoing medical treatment, recuperation, or therapy for a qualifying serious injury or illness. A veteran who was dishonorably discharged is not a covered servicemember.

Serious Illness or Injury Defined for Military Caregiver Leave

The FMLA definitions of “serious injury or illness” for current servicemembers and for veterans are different from the FMLA and CFRA definition of “serious health condition.”

A serious injury or illness for a current servicemember is:

• One incurred in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of the servicemember’s office, grade, rank or rating; or
• One that existed before the servicemember’s active duty and that was aggravated by service in the line of duty on active duty in the Armed Forces.

A serious injury or illness for a covered veteran is:

• One incurred in the line of duty on active duty in the Armed Forces; or
• One that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces.

To qualify, the injury or illness must also meet one of the following four definitions:

1. A continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank or rating; or
2. A physical or mental condition for which the veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and the need for military caregiver leave is related to that condition; or
3. A physical or mental condition that substantially impairs the veteran’s ability to work because of a disability or disabilities related to military service, or would do so absent treatment; or
4. An injury that is the basis for the veteran’s enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

• Any one of these definitions meets the FMLA’s definition of a “serious injury or illness” for a covered veteran regardless of whether the injury or illness manifested before or after the individual became a veteran.

Military Caregiver Leave Interaction

Under some circumstances, CFRA leave may run concurrently with FMLA military caregiver leave. If the servicemember is also in a CFRA qualifying relationship with the employee requesting the leave (i.e., spouse, child or parent), and the servicemember’s qualifying illness or injury also meets the definition of a serious health condition under CFRA, then the CFRA would run concurrently with the FMLA military caregiver leave for up to 12 weeks out of the total 26 weeks. If those conditions are not met, only FMLA leave may be taken to care for the servicemember and the employee would retain their CFRA leave.

1. 29 CFR sec. 825.114; 2CCR secs. 11087, 11097

2. Govt. Code sec. 12945.2(b)

3. Govt. Code sec. 12945.2(b)

4. 2 CCR sec. 11087

5. 29 CFR sec. 825.122(c)(3)

6. Administrator’s Interpretation No. 2010-3, June 22, 2010

7. Govt. Code sec. 12945.2(b)(5)(B)

8. Govt. Code sec. 12945.2(b)(2)

9. Govt. Code sec. 12945.2 (b)(4)(C)