Family & Medical Leave Act and California Family Rights Act

To be eligible for leave under the Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”), an employee must have been employed by the employer for at least 12 months as of the date leave commences, and must have been employed for at least 1250 hours of service during the 12-month period, and must have been employed at a worksite where the employer employs at least 50 employees within 75 miles. Both the FMLA and CFRA entitle eligible employees to take a maximum of 12 workweeks of unpaid leave in 12-month period.

An eligible employee is entitled to take a leave of absence under the FMLA/CFRA because of his or her own serious health condition, the serious health condition of a child, spouse, registered domestic partner, or parent, the birth of a child and to care for the child, the adoption and placement of a child for foster case. Additionally, the FMLA provides leave rights to care for an injured servicemember or veteran during rehabilitation or to attend to a “qualifying exigency” arising out of the fact that an employee’s family member is on active duty in the Armed Forces.

If an employee is eligible for leave and meets all of the requirements, the employer must grant the leave.

To take advantage of one’s FMLA/CFRA rights, an employee must notify his or her employer of the need for qualifying leave (i.e., birth of child, family member’s serious health condition, employee’s own serious health condition). The notice may be verbal or written, and may be given by the employee’s spouse or other adult family member if the employee is unable to give notice. As to the content of the notice, the employee need not explicitly mention “FMLA” or “CFRA”. The notice given must be sufficient to let the employer know that the leave is for a qualifying reason. For example, an employee may give notice by telling her employer that she will be undergoing serious surgery, or that she will be taking time off for the birth of a child. It is the responsibility of the employer to request more information from the employee if it feels that it needs more information to assess whether the leave is for a FMLA/CFRA-qualifying reason.

An employee must also tell the employer what the anticipated timing and duration of the leave will be. If the employee needs to extend his or her FMLA/CFRA leave, she must notify the employer in advance so that the employer knows when the employee will return.

If an employee takes FMLA/CFRA leave for his own serious health condition or that of a family member, the employer may require a medical certification from a health care provider verifying the need for CFRA/FMLA leave.

At the conclusion of an FMLA or CFRA leave, an employer must reinstate an employee to the same or an equivalent job, unless he or she is a “key employee” who is given appropriate notification. If the FMLA/CFRA leave was taken because of the employee’s own serious health condition, the employer may require a fitness-for-duty report certifying that the employee is able to return to work.

If an employee returning from FMLA/CFRA leave is disabled, California law requires the employer to extend reasonable accommodations for the employee’s disability.

If your employer is failing to comply with the FMLA or CFRA, take action and contact a FMLA attorney at Workplace Justice Advocates, A Professional Law Corporation.

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