Know Your Rights and Responsibilities: CFRA/FMLA Leaves

  Human Resources

California Family Rights Act (CFRA)

The California Family Rights Act (CFRA) authorizes eligible employees to take up a total of 12 weeks of paid or unpaid job-protected leave during a 12-month period. While on leave, employees keep the same employer-paid health benefits they had while working.

FMLA(Family and Medical Leave Act) California

Covered as a serious health condition under the Family and Medical Leave Act (FMLA).

FMLA AND CFRA: WHAT’S THE DIFFERENCE?

The differences between the two acts include the following:

  • FMLA allows you leave to care for an injured or ill service member who is a child, parent, spouse or other next of kin. CFRA restricts leave to just a child, parent or spouse.
  • FMLA considers pregnancy as a serious health condition. CFRA does not include pregnancy itself as a qualifying condition. However, leave may be available under the state’s Pregnancy Disability Leave.
  • FMLA allows leave if a family member is, or is called to active duty military under certain conditions. CFRA does not cover this type of leave.
  • FMLA does not consider registered domestic partners as equal to spouses. CFRA does.

You may also be able to take advantage of California’s Paid Family Leave, which would provide you with six weeks of paid leave if you qualify for this temporary disability insurance program.

One aspect of FMLA and CFRA that many people tend to misunderstand is the definition of a “serious health condition.” For the purposes of taking this type of leave, the definition includes the following:

  • An injury or accident requires you or an eligible family member to receive restorative plastic surgery or dental work.
  • An illness or injury leaves you or an eligible family member incapacitated for at least three days.
  • You or an eligible family member end up incapacitated due to hospitalization.
  • Your incapacitation or that of a qualifying family member continues after release from inpatient care.
  • You or a qualifying family member requires ongoing care and treatment for an incurable and long-term health condition.

If your situation qualifies you for FMLA or CFRA, you may also continue to receive health insurance benefits paid for by your employer during your time away from work.

Who are Covered Employers Under FMLA and CFRA?

FMLA and CFRA laws cover private employers with 50 or more employees on the payroll during each of 20 or more calendar weeks in the current calendar year or the preceding calendar year, and all public employers regardless of the number of employees. This includes employees on the payroll who received no compensation, part-time employees, commissioned employees and employees on leave who are expected to return to active employment. Employees on layoff do not count.

FMLA/CFRA Eligibility

There are specific criteria for an employee to be eligible for CFRA and/or FMLA. An employee must have worked for a covered employer for at least 12 months and must have worked for 1,250 hours in the 12 months before the start of the leave. The employee must also work at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

FMLA/CFRA Abuse

Abuse of intermittent Family and Medical Leave Act (FMLA) or CFRA time off is frustratingly common, but employers need not tolerate it. If they have an honest belief or suspicion of abuse, that’s enough to take action against an employee.

Signs of FMLA/CFRA abuse include:

  • An employee has frequent Monday and Friday absences.
  • An employee’s request to take vacation is denied, then he or she takes FMLA/CFRA time off.
  • A co-worker anonymously or directly complains to the company about a worker’s abuse of FMLA/CFRA leave.

One of the advantages of the honest-belief doctrine is that it circumvents often ineffective and expensive FMLA/CFRA mechanisms to challenge leave, such as re-certifications and second or third opinions, Morris said.

Is FMLA/CFRA Paid?

The FMLA/CFRA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA/CFRA leave period. When paid leave is used for an FMLA/CFRA-covered reason, the leave is FMLA/CFRA-protected.

FMLA/CFRA Pay

FMLA/CFRA leave is unpaid leave. However, workers may choose to, or employers may require them to, substitute accrued paid sick, vacation, or personal time for FMLA/CFRA leave. Substitute means that the paid leave provided by the employer will run concurrently with the unpaid FMLA/CFRA leave.

FMLA/CFRA Depression

Depression is costly because it causes absenteeism, but an employee doesn’t have to be absent to be nonproductive. “Presenteeism,” in which employees show up for work but aren’t able to perform well, also takes a toll on an employer’s bottom line, according to the IBI study. The study found that employees with depression miss eight more days a year than those without depression, and they have the equivalent of 11 more days of presenteeism annually.

When employees suffer from depression, employers need to avoid mistakes in administering leave under the Family and Medical Leave Act (FMLA)/(CFRA), and they must be on guard against discrimination that would violate the Americans with Disabilities Act (ADA).

FMLA/CFRA Concerns
Often employees with depression seek time off, either as a block of time or intermittently. Such a request may trigger the FMLA/CFRA. Here are the questions Eyres suggests employers ask themselves when an employee requests time off because of depression or anxiety.

  • Does the FMLA/CFRA apply? The FMLA/CFRA covers employers with at least 50 employees. Employees working for covered employers must have worked at least 12 months (not necessarily consecutively) for the employer, and they must have worked at least 1,250 hours in the preceding 12 months to be eligible for the job-protected leave the FMLA/CFRA provides. If the employer or employee isn’t covered under the FMLA/CFRA, the employer may still have an ADA issue, since time off might be deemed a reasonable accommodation under that law.
  • Does the employee have a “serious health condition”? The FMLA/CFRA outlines how that determination is made.
  • Has a medical provider provided the proper certification for a serious health condition?
  • Do the employer’s policies/procedures apply?
  • Does the employee have other available avenues?

FMLA SC (South Carolina)

Employers in South Carolina, like employers in all other states, are subject to the federal Family and Medical Leave Act (FMLA), which allows eligible employees to take unpaid leave, with the right to reinstatement, for certain reasons. In addition, many states have their own laws that require employers to provide time off for family and medical reasons. South Carolina is not one of them, however. South Carolina employees have only the rights guaranteed by the FMLA.

Pregnancy Disability Leave

Employers with five or more employees are covered by California’s pregnancy disability leave (PDL) law. An employee who is disabled by pregnancy is eligible for up to four months of PDL. The length of the leave will be determined by the employee’s health care provider and will depend on the length of time that the employee is actually disabled by the pregnancy.

Baby Bonding Leave

If an employer is covered by federal and state family and medical leave laws (FMLA/CFRA) or the California New Parent Leave Act (Parental Leave), an employee can take up to 12 weeks of unpaid, job-protected leave to bond with a newborn or a child placed with the employee for adoption or foster care – assuming the employee meets the eligibility requirements. Leave must be taken within one year of the child’s birth, adoption or foster-care placement.

Medical Certification

You may require medical certification for an employee taking family/medical leave for his/her own serious illness or to care for a family member, but not for baby-bonding time. Keep in mind that medical privacy laws limit the type of information you may require on such certification.

Can CFRA and FMLA run concurrently?

Yes. For example, an employee who has exhausted her FMLA leave for pregnancy- or childbirth-related reasons can use additional CFRA leave to bond with her newborn child. Whereas, in other medical situations in which FMLA and CFRA run concurrently, the employee may be eligible for a maximum of 12 weeks of unpaid leave.

There are 4 major differences between the Federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA):

  1. Pregnancy as a “Serious Health Condition” (SHC):

    FMLA: Covered as a serious health condition under the Family and Medical Leave Act (FMLA).
    CFRA: Pregnancy itself is not covered as a SHC. Instead, in California, a pregnant employee is entitled to a Pregnancy Disability Leave (PDL) of up to 4 months (16 weeks). Employers need to have only 5 or more employees for them to be subject to this Act, and there is no eligibility period for employees. The eligible CFRA employees can then take a 12-week CFRA baby bonding leave. The first 12 weeks of PDL can run concurrently with FMLA for eligible employees, and for that period, employers need to keep eligible employees health benefits.

  2. Registered Domestic Partners Equal to Spouses

    FMLA: Not covered.
    CFRA: Covered under CFRA, registered domestic partners are covered just like spouses. Note that this may give a domestic partner more family leave.

  3. “Qualifying Exigency” because of employee’s or family member’s active military duty

    FMLA: Eligible FMLA employees are entitled to up to 12 weeks (4 months) of leave for “any qualifying exigency” arising because the employee has a family member (spouse, child, parent) who is on active military duty or who has been notified of an impending call to active duty status, in support of a contingency operation. Health benefits are included. The family member must be a member of the Guard, Reserve or be a retired member of the Armed Services.
    CFRA: Not covered under CFRA.

  4. Care for Ill or Injured Service Member

    FMLA: Covered. An employee who is the spouse, child, parent, or next of kin of a covered service member may take a total of 26 weeks (6.5 months) of leave during a 12-month period to care for a covered service member who is ill or injured in the line of duty on active duty. Health benefits are included.
    CFRA: Covered under CFRA if family member is a spouse, child, or parent.
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Know Your Rights and Responsibilities: CFRA/FMLA Leaves
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Know Your Rights and Responsibilities: CFRA/FMLA Leaves
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FMLA allows you leave to care for an injured or ill service member who is a child, parent, spouse or other next of kin. CFRA restricts leave to just a child, parent or spouse. FMLA considers pregnancy as a serious health condition. CFRA does not include pregnancy itself as a qualifying condition.
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Plianced Inc.
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