The FMLA and CFRA entitle eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. In addition, an employer must maintain the employee’s position or a similar position to which the employee may return at the conclusion of his/her leave.
FMLA and CFRA require employers with 50 or more employees to provide an employee up to 12 weeks of medical leave per calendar year to: 1) care for their own serious medical condition; 2) care for the serious medical condition of a family member, defined as a child, spouse or parent; or 3) to bond with a newborn or adopted child.
Eligible employees are entitled to:
• 12 workweeks of protected leave in a 12-month period for:
the birth of a child and to care for the newborn child within one year of birth;
the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
to care for the employee’s spouse, child, or parent who has a serious health condition;
a serious health condition that makes the employee unable to perform the essential functions of his or her job;
any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;”
Military Caregiver Leave:
• FMLA extends protected leave to 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave). Under CFRA, protected leave for a servicemember that fulfills all other criteria remains 12 weeks.
An eligible employee is one who:
- Works for a covered employer;
- Has worked for the employer for at least 12 months;
- Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave*; and
- Works at a location where the employer has at least 50 employees within 75 miles.
A covered employer is a:
- Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
- Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
- Public or private elementary or secondary school, regardless of the number of employees it employs.
The 12 months of employment do not have to be consecutive. That means any time previously worked for the same employer (including seasonal work) could, in most cases, be used to meet the 12-month requirement. If the employee has a break in service that lasted seven years or more, generally the time worked prior to the break will not count unless the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA), or there is a written agreement, including a collective bargaining agreement, outlining the employer’s intention to rehire the employee after the break in service.
CFRA and FMLA often overlap so that the two leaves run concurrently. However there are some significant differences where the two leaves do not run concurrently, which provide a California employee up to six months of protected leave. For example, any pregnancy-related disability is considered a “serious medical condition” under FMLA, but not CFRA. Another deviation between FMLA and CFRA is leave to care for an injured military service member. If the service member is the son, daughter or spouse of the employee, then the employee’s leave under CFRA and FMLA would likely run concurrently. If the service member is the “next of kin,” however, only FMLA leave would be triggered, providing a California employee with up to 26 weeks of leave under FMLA and an additional 12 weeks of leave under CFRA for another qualifying event in the same 12 month period.
FMLA/CFRA Recent Updates:
Recently, the U.S. Department of Labor expanded the leave protections under FMLA for veterans with a serious medical condition as well as expanding the defi nition of “serious injury or illness” for current service members and veterans to include pre-existing injuries that were aggravated by their service in the line of duty or active duty. The recent expansions also expanded the definition of “qualifying exigency leave” and increased the amount of time off from five days to 15 days.
The U.S. Department of Labor also announced a Notice of Proposed Rulemaking (NPRM) to revise the definition of spouse in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. The NPRM proposes to amend the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.
Does an employee have to take leave all at once or can it be taken periodically or to reduce the employee’s schedule?
When it is medically necessary, employees may take FMLA/CFRA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.
Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement. CFRA provides that the minimum increment is 2 weeks for leave to care for or bond with a newborn child or newly placed adopted or foster child.
What and when do I need to tell my employer if I plan to take FMLA/CFRA leave?
Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable – generally, either the same or next business day. When the need for leave is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with the employer’s usual and customary notice and procedural requirements for requesting leave.
Employees must provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include that the employee is incapacitated due to pregnancy, has been hospitalized overnight, is unable to perform the functions of the job, and/or that the employee or employee’s qualifying family member is under the continuing care of a health care provider.
When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. When an employee seeks leave, however, due to a FMLA-qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for the leave or the need for FMLA leave.
Is an employee required to follow an employer’s normal call-in procedures when taking FMLA/CFRA leave?
Yes. Under the regulations, an employee must comply with an employer’s call-in procedures unless unusual circumstances prevent the employee from doing so (in which case the employee must provide notice as soon as he or she can practicably do so). The regulations make clear that, if the employee fails to provide timely notice, he or she may have the FMLA/CFRA leave request delayed or denied and may be subject to whatever discipline the employer’s rules provide.
DISCLAIMER: This information provided here is intended to provide accurate, general information about protected leaves available to employees. Because laws and legal procedures are subject to frequent change and differing interpretations, Teamsters 856 cannot ensure that the information in this guide is current, nor be responsible for any use to which it is put. Do not rely on this information without first consulting with your representative and/or consulting an attorney or the appropriate agency about your rights. Members with specific leave questions may contact their representative and/or Staff Attorney and Leave Coordinator Susanna Farber.