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Managing family and medical leave begins with recognizing eligibility requirements and a qualifying event, either because the employee tells you about the event or you learn about it some other way, and then notifying the employee who is being placed on CFRA-only, FMLA/CFRA or FMLA-only leave. By providing notice that the leave is designated as such, you start counting the absences against the legally mandated 12-week (or 26-week) entitlement.
This process also involves coordinating leave entitlements with your voluntary policies of allowing or requiring other forms of leave. Leaves of absence can occur either one after the other (as with CFRA-only leave for child bonding, which can begin only after pregnancy disability ends or after the child is born), or overlapping (as with pregnancy disability leave and FMLA leave, which run concurrently). Running leaves of absence concurrently with one another where allowed by law is a key tool in managing the overall amount of time an employee is away from work.
CFRA and FMLA contain similar provisions. For employers subject to both laws, they run concurrently for all purposes other than:
Leave to care for an ill or injured servicemember (FMLA only). Note that if the servicemember is a CFRA-covered family member and if the servicemember has a qualifying serious health condition that warrants the participation of the employee, the first 12 weeks of care would qualify as a CFRA leave and run concurrently with FMLA. The last 14 weeks would be FMLA only.This topic contains the following information:
The CFRA provides more expansive leave to care for family members than the FMLA. Not only does the CFRA provide leave to care for a child, parent or spouse, like the FMLA, it also provides leave to care for a registered domestic partner, parent-in-law, sibling, grandchild, grandparent, or a “designated person.” The CFRA’s expansive family member coverage means that eligible employees would be entitled to up to 12 weeks of CFRA-only leave to care for these family members. For employers covered by both CFRA and FMLA, this use of CFRA-only leave does not affect the employee’s FMLA entitlement, which means the employee may use their FMLA time, up to 12 weeks, for another reason, such as for the employee’s own serious health condition.
Example: Sally, an employee of two and a half years, asks for time off to help her grandmother recover from surgery. Under the CFRA, Sally can take time off to care for her grandmother with a serious health condition. This will be a CFRA-only qualifying reason. As such, FMLA will not run concurrently with the CFRA leave. After four weeks, Sally ends up needing more time and uses her entire 12 weeks under CFRA. A month later, in the same 12-month period, she needs two weeks of leave for her own serious health condition. While CFRA is expired, Sally still has up to 12 weeks of FMLA available and can use that for her own serious health condition.
See the Leave Interaction form for an illustration of how different types of leave interact.
Both CFRA and FMLA provide leave to care for same-sex spouses with serious health conditions; however, only CFRA extends coverage to care for registered domestic partners.
Any two adults over the age of 18 can enter into a domestic partnership in California.
The couple must have formally registered their relationship with the California Secretary of State.1 However, you should not ask for proof of registered domestic partnership unless you also require proof of marriage.
For employers covered by both CFRA and FMLA, the leaves may run concurrently for leave taken to care for a same-sex spouse.
Leave for pregnancy, childbirth or a related medical condition is covered by California’s Pregnancy Disability Leave Act (PDL), which provides employees up to four months of leave per pregnancy. It is also covered by the FMLA, but not the CFRA. This means that if the employee is eligible for CFRA, the employee can take CFRA leave for child bonding after PDL ends, i.e., they do not run concurrently. But, for employers also covered by the FMLA, FMLA will run concurrently with PDL for a maximum of 12 weeks.
FMLA also covers leave for child bonding, so if an employee has both CFRA and FMLA available after their PDL leave ends, the two leaves will run concurrently for child bonding after the baby is born.
Example: Betsy, an employee for two years, is expecting a baby. The employer is covered by both CFRA and FMLA. Betsy wants to take at least four weeks off before her baby is born and asks to take “maternity leave” after the baby is born. Under these circumstances, Betsy is eligible to use PDL (not CFRA) for leave taken before the baby is born. Since the employer is covered by FMLA, FMLA will run concurrently with PDL. If Betsy takes four weeks of PDL and FMLA concurrently, Betsy would then be eligible for CFRA leave for child bonding for up to 12 weeks. Her remaining FMLA time would run concurrently with the CFRA. Additionally, the employer must continue Betsy’s health benefits while out on CFRA and FMLA leave.
The designation of PDL, and thus FMLA, is determined by the employee’s health care provider. The employee is not automatically entitled to the full four months of PDL or 12-weeks of FMLA.
See the Leave Interaction form for an illustration of how different types of leave interact.
FMLA and CFRA run concurrently if the leave of absence is needed:
The employee who needs leave for one of these qualifying reasons will have up to 12 weeks of leave, if the employee has not used any other FMLA/CFRA leave during the 12-month period the organization uses for these leaves.
Example: Paul is injured while jet skiing and is unable to work for nine weeks. His employer is covered by both the CFRA and FMLA. Paul is eligible for and will use nine weeks of CFRA and FMLA, which run concurrently for the leave. Paul has three weeks of CFRA and FMLA available for the remainder of the 12-month period used by the employer.
FMLA covers employers with 50 or more employees, while CFRA covers employers with five or more employees.
In most cases FMLA and CFRA will run concurrently, however, there may be times when 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 within 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.
Example: You have 100 employees at your corporate headquarters in Los Angeles and 25 employees at your satellite office in Oakland. Frank, a full-time employee for the past five years, works in your Oakland office. Frank’s wife just gave birth to a baby, and he wants to take 12 weeks off to bond with the new child.
An employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember (including certain veterans) is entitled, under the FMLA, to a total of 26 workweeks of leave during a 12-month period to care for the servicemember. If the employee does not take the entire 26 weeks of leave entitlement within the 12-month period, the employee forfeits the remaining amount of leave available.2 The 12-month period begins on the first day of leave, regardless of how you calculate the 12-month period for other FMLA/CFRA leaves.
FMLA provides 26 weeks, 130 days, or 1,040 hours of time off to care for an ill or injured servicemember. The first 12 weeks of time runs concurrently with CFRA if the injured servicemember is a spouse, parent or child of the employee and the injury also is a qualifying serious health condition. It does not run concurrently with CFRA if the servicemember is next of kin. You can require documentation to support the need for leave. FMLA requires that employers provide eligible employees with continuation of health benefits as if the employee still were at work and on the payroll. Employees on leave to care for an ill or injured servicemember get up to 26 weeks of continued health benefits in the 12-month period.
If an employee takes less than 26 weeks of FMLA to care for an ill or injured servicemember, the employee is still only entitled to a total of 12 weeks of health benefits within a 12-month period for any other type of FMLA/CFRA leave.
For example, an eligible employee takes 20 weeks of leave to care for a son, who returned from military service with a serious injury and needs care. Two months later, the employee needs 10 weeks of leave due to a qualifying exigency relating to a daughter’s military service.
1. Family Code sec. 297
2. 29 CFR sec. 825.127(c)
3. 29 CFR sec. 825.209(a)
4. 29 CFR sec. 825.200(g)
5. 29 CFR sec. 825.209(a)