California Family and Medical Leave Laws

California employees are protected by the federal Family and Medical Leave Act (FMLA) and by the California Family Rights Act (CFRA). Employees may be eligible to take an unpaid leave from work if they:

• have a serious medical condition (including pregnancy-related disabilities),
• need to care for a family member’s serious medical condition, or
• want time off to bond with a newborn baby, an adopted child, or a foster child.

The leave is job-protected, meaning the employer must return the employee to work after the leave ends. Employees are also protected from actions that interfere with their right to take a leave and from retaliation after they exercise that right.

An employment lawyer at KKG Law can advise Bay Area employees who have been denied a family or medical leave, who have not been allowed to return to work after taking a leave, or who have experienced retaliation after taking a leave.

FMLA

Who Is Protected?

The FMLA gives employees the right to take unpaid leave for certain medical and family purposes. The FMLA applies to employees who work for:

• A private employer if the employer has at least 50 employees during at least 20 weeks within the current or past year
• All private and public elementary and secondary schools
• Government agencies and other public employers of any size

To be eligible for leave, an employee must have worked for the employer for at least 12 months.  The 12 months of employment do not need to be consecutive, although a total of 12 months must usually have been worked within the past 7 years.

In addition, the employee must have worked at least 1,250 hours for the employer over the past 12 months (not including sick leave or paid vacation).

Finally, the employee is eligible only if the employer has at least 50 employees who work within 75 miles of the job site of the employee who wants to request a leave.

What Reasons Justify a Leave?

The FMLA authorizes an eligible employee to take a leave when the employee:

• Is unable to work because of a serious health condition
• Needs to care for a spouse, child, or parent with a serious health condition
• Is unable to work due to pregnancy complications
• Needs time for prenatal care or childbirth
• Is a mother or father who wants to care for a newborn baby (within one year after birth)
• Wants to bond with a child who has been placed with the employee for adoption or foster care (within one year after placement)

What Leave Is Available?

In most cases, an eligible employee can take up to 12 weeks of leave within 12-month. However, an eligible employee can take up to 26 weeks of leave to care for a spouse, child, or parent who is in the military service (military caregiver leave).

A leave to bond with a child must usually be taken all at once unless the employer agrees to allow intermittent leave. A leave for health conditions can usually be taken intermittently if medically necessary. When taking leave for doctor’s appointments, employees are generally required to work with the employer to avoid unnecessary disruption in the workplace.

The FMLA leave is unpaid. However, if the employer provides paid sick leave or the employee has accrued paid vacation hours, the employee may be able to use that paid time off as part or all of the FMLA leave. The employee gains the job protections of the FMLA whether the time off is paid or unpaid.

What Job Protections Are Available for an FMLA Leave?

The FMLA requires employers to return employees to employment after they return from a leave. The employee must be allowed to resume his or her former job or must be given an equivalent job if the former job is no longer available.

An equivalent job is one that:

• Allows the employee to work the same shift or schedule at the same or a nearby worksite
• Involves the same or substantially similar duties, responsibilities, authority, and status
• Requires the same general level of skill and effort
• Provides identical pay, including overtime and bonus opportunities, and any pay increases that occurred during FMLA leave
• Offers identical benefits (such as life insurance, health insurance, disability insurance, sick leave, vacation, retirement benefits, etc.)

What Happens If an Employer Violates the FMLA?

Employers can violate the FMLA by interfering with the exercise of FMLA rights or by retaliating against an employee who exercises those rights.

Examples of interference with FMLA rights include:

• Refusing to permit a leave to which the employee is entitled
• Refusing to allow an employee to return to work after taking a leave
• Insisting that an employee take a shorter leave than the law allows
• Demanding that the employee provide more evidence about the need for a medical leave than an FMLA medical certification requires
• Giving false or misleading information to an employee that prevents the employee from taking a leave to which the employee is entitled
• Threatening an employee with loss of a job if the employee takes a leave

Even discouraging an employee from taking a leave can constitute “interference” with FMLA rights if the employee incurs expenses (such as hiring a caretaker) rather than taking a leave that an employer opposes.

Retaliation can only be after the employee exercises rights guaranteed by the FMLA. Examples of retaliation against an employee for exercising FMLA rights include:

• Reducing the employee’s pay after the employee returns from leave
• Assigning additional work to the employee after the employee returns from leave
• Gossiping about the medical condition for which an employee requested a leave
• Harassing the employee after she returns to work from an FMLA leave

Employees who bring interference or retaliation claims may be entitled to:

• Reinstatement to the former job
• Back pay
• Front pay instead of reinstatement
• The value of lost benefits
• Restitution of monetary losses (such as the cost of hiring a caretaker when a leave is denied).

In some cases, employees may also be entitled to liquidated damages that double the other damages the employee receives.

CFRA

The CFRA provides protections to California employees that are similar to the FMLA. Important differences include:

• The CFRA allows leave to care for a registered domestic partner as well as a spouse
• A disabling condition related to pregnancy is a serious medical condition under the FMLA but not under the CFRA (although California employees may be eligible to take the Pregnancy Disability Leave discussed below)
• Child bonding leave can be taken intermittently under the FMLA only with an employer’s permission, but can be taken intermittently, in minimum increments of two weeks, under the CFRA

Employees cannot double their leave time by taking both an FMLA and a CFRA leave. When an employee is eligible for both leaves, they must be taken concurrently.

Pregnancy Disability Leave

California employees who are disabled by a pregnancy may take a leave for the duration of the disability, but not longer than four months. California’s pregnancy disability leave law applies to all employers with at least 5 employees.

Helping Victims of Family and Medical Leave Violations

An employment lawyer at KKG Law can help victims who have been denied a leave that the law permits, who have experienced interference with their right to take a leave, whose employers have not returned them to work after a leave ends, and who have experienced harassment or other forms of retaliation for taking a leave.

KKG Law represents current and former employees in Oakland, San Jose, Fairfield, and all other Bay Area communities. Contact KKG Law at .