Medical / Family Leave

Federal v. California Laws:

I. Introduction

1. FMLA Purpose: United States’ Congress enacted the federal family and medical leave act (“FMLA”) on February 5, 1993. The purpose of the FMLA was to balance work and family life by allowing employees to take unpaid leave for certain periods of time for specific medical and family related reasons. 29 U.S.C. § 2601(b). Additional information about FMLA at U.S. Dept of Labor Wage and Hour Division.
2. CFRA Purpose: In 1991 California had already passed its own version of a family leave statute when the State passed the California Family Rights Act (“CFRA”). California amended its CFRA in 1993 to make the statute closely resemble the federal FMLA, with a few distinctions, among those the treatment of pregnancy leave. Govt. Code § 12945.2, Cal. Code Regs. § 7279. Additional information about CFRA at California Dept of Fair Employment and Housing.
3. Pregnancy Disability Leave: Although CFRA does not cover pregnancy related situations in the state, such cases are subject to California’s Pregnancy Disability Leave Act (“PDL”). Govt. Code § 12945, Cal. Code Regs. § 7291. Under federal law, pregnancy situations are covered both by Title VII of the Civil Rights of 1964 (i.e., with respect to discrimination claims based on pregnancy) and by FMLA (i.e., with respect to leave requirements that pregnancies generate). PDL applies to employers of 5 or more employees. For further discussion on this topic please refer to California State law section.
4. PDA: The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and to labor organizations, as well as to the federal government. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. Pregnancy Discrimination.

For more information on your rights under FMLA, Title VII, ADA, FEHA or other laws contact medical leave, labor and discrimination attorneys of Employment Law Team. We handle cases in Orange, Los Angeles, San Bernardino, and Riverside.

II. Who does the law apply to:

1. Employer Coverage: For FMLA or CFRA to cover an employer, the employer must fall into all of the following categories:
   1. Must have had at least 50 full time and/or part time employees during 20 weeks of the prior or current year.
   2. For FMLA the employer must have those employees within a 75 mile radius of any single covered work site, whereas under CFRA, the employer merely needs to have at least 50 employees residing within the state of California.
2. Who Is Protected: For an employee to have FMLA or CFRA coverage, the employee must meet all of the following requirements:
   1. Must have worked for the covered employer at least one year.
   2. Must have worked at least 1250 hours during the past one year period.
3. Reasons for Leave: Employees may take leave for the birth or adoption of a child, or to care for a serious health condition that affects the employee, a child, parent, or spouse. The FMLA also allows FMLA leave for one’s own pregnancy.
   1. Serious Health Condition is defined as any illness, injury, impairment, or physical or mental condition involving in-patient care or continuing medical treatment by a health care provider.
   2. The definition includes but is not limited to : heart attacks, strokes, appendicitis, severe arthritis, complications from other medical procedures.
4. Pregnancy Discrimination Coverage: Pregnant employees, for federal PDL (Title VII) protection, must work for an employer having at least 15 or more employees, whereas California employees are protected from pregnancy discrimination when they work for employers with at least five employees.

For more information on your rights under FMLA, Title VII, ADA, FEHA or other laws, contact medical leave, labor and discrimination attorneys of Employment Law Team. We handle cases in Orange, Los Angeles, San Bernardino, and Riverside.

III. General Requirements

1. FMLA / CFRA Leave Time Available: Employer must make 12 weeks of unpaid leave available per “year,” which may be defined as:
   1. Calendar year
   2. Fiscal year
   3. Employee annual tenure year
   4. Annual year starting on date employee takes first leave (“rolling year”)
2. What Qualifies for Leave: Employees may take up to 12 weeks of leave for any of the following purposes:
   1. Birth of child
   2. Adoption, placement, or foster care of a child
   3. Care of parent, spouse or child with a serious health condition
   4. Care for employee’s own serious health condition
   5. Exceptions to the 12 week rule:
      • Employee’s own pregnancy [Note this category is not included under CFRA]
      • Employers may restrict leave to 12 weeks combined for husband/wife employees of the same employer when they seek leave for birth, adoption, care of their common child.
3. Health Insurance: The employer during the 12 weeks of leave must maintain health insurance at the same level.
   1. An employee who fails to return at the end of 12 weeks permits an employer to recover premiums paid for employee.
   2. However, an employee who fails to return because of circumstances beyond his/her control, disables the employer from recovering premiums paid.
4. Reinstatement Rights: By returning within the 12 weeks, the employee has the right to return to the “same” or “equivalent” position s/he held prior to leave.
   1. Equivalent is different from “similar” or “comparable.”
   2. Employers need not reinstate the highest paid 10% of the workforce where “substantial and grievous economic injury” would occur to the business.

IV. Types of Leave Allowed

1. Can There Be Breaks Between Leaves?: Employees may take, in addition to continuous leave, intermittent and reduced schedule of hours leave.
   1. Employers must allow leave for medical appointments.
   2. Employers need not allow intermittent leave for the birth or adoption of a child.
   3. Employers may force transfer employees taking intermittent leave to jobs that fit their intermittent leave schedule.
2. Paid vs. Unpaid Leave:
   1. Employers need not pay for leave, unless the employer pays for other medical leaves.
   2. Employers may require employees to utilize available sick leave and vacation leave for either FMLA or CFRA leave.

V. Notices Required

1. Foreseeable Leave:
   1. Employers may require 30 days advance notice for birth, placement, adoption or other forms of foreseeable leave.
   2. Employers may require employees to schedule medical appointments so as not to disrupt the employer’s operations.
2. Unforeseeable Leave: Employers may not require prior notice.
3. Certifications: Employer may require employee certifications stating:
   1. Date the condition started.
   2. Predicted duration of the condition.
   3. The fact that care for a family member is needed
4. Second Opinions: Employer may require a second, employer paid, opinion.
5. Employer Notices Required:
   1. Notice of use of an annual period other than calendar year.
   2. Notice of rights and duties under FMLA, CFRA if such rights and duties are not outlined in an employee handbook.
   3. Notice to employee of how health insurance premium payments are handled.

VI. Violations of FMLA / CFRA

1. Remedies Available:
   1. Employees pursuing rights under the FMLA may either file complaints with the U.S. Dept. of Labor or file a private lawsuit directly in Court. The employee must file the lawsuit within two years of the violation, a period not stayed by the Dept. of Labor’s investigation.
   2. Employees pursuing rights under the CFRA must first file a timely (i.e., within one year) complaint with the Calif. Dept of Fair Employment & Housing, receive a right to sue letter, and then file a court complaint within one year of the right to sue letter.
2. Damages Available:
   1. Both FMLA and CFRA allow the full panoply of damages including lost wages, benefits, emotional distress damages, attorneys’ fees, expert witness fees, and costs.
   2. FMLA specifically allows the recovery of liquidated damages in an amount equal to other losses as a penalty to any employer violating the FMLA.

VII. Interaction with Other Laws

• Although FMLA and other leave statutes are separate and distinct from title VII, ADA or similar state statutes, there can be a point of conversion between the two. Just recently (2007) the Equal Employment Opportunity Commission (EEOC) issued an enforcement guidance declaring the disparate treatment of employees who care for children, parents or other family members could violate federal laws. This guidance was apparently issued to assist investigators, employees and employers in assessing whether a particular action might unlawfully discriminate against the employee. The guidance specifically refers to childcare, eldercare and caring for individuals with disabilities. The guidance declares that “women are primarily responsible for caring for society’s elderly, children, in laws and spouses.” The guidance refers o few examples of what it considers to be discrimination against a worker and one example involves a father who was denied unpaid leave to care for a new born. According to the guidance if the employer denied a leave that it would grant to a female then such denial would be in violation of the law.

For more information on your rights under FMLA, Title VII, ADA, FEHA or other laws, contact medical leave, labor and discrimination attorneys of Employment Law Team. We handle cases in Orange, Los Angeles, San Bernardino, and Riverside.

NEW DEVELOPMENTS

The long-anticipated changes to the federal Family and Medical Leave Act have been finalized. These changes will take effect on January 16, 2009.

Following is a brief list of some of the more important changes that all employees and employers should be aware of:

1. Supervisors will no longer be allowed to contact an employee’s health care provider for medical information when a medical certification is needed.
2. Unless there is an “unusual circumstance” employees will be required to comply with an employer’s rules for requesting leave in advance.
3. If there are legitimate safety concerns, employers will be allowed to request “fitness for duty” certifications for certain employees returning from leave necessitated by their own serious health conditions.
4. Employers may disqualify employees from bonuses for hours worked, products sold, perfect attendance, or the like if the employee has not met the goal due to taking FMLA leave, unless these bonuses are paid to employees on equivalent, non-FMLA leave.
5. Clarification of previously released FMLA changes relating to the care of injured military personnel, as well as new provisions relating to National Guard and Reserve personnel.
6. An employee who voluntarily returns to a light duty position retains the right to job restoration to the same position, or an equivalent one, until the end of the 12-month period that the employer uses to calculate FMLA leave.

If you face a legal question related to labor and or employment law be it a federal or state issue in Orange County, Los Angeles County, Riverside County, San Bernardino County, Alameda county, San Francisco county or San Diego County call (888) 529-2188 for a free consultation with an attorney well versed in the areas of: labor law, employment law, overtime laws, sexual harassment laws, wrongful termination, sexual discrimination laws and disability laws.