Family and Medical Leave Handbook Statement: California

Author: Amy E. Mendenhall, Marissa L. Dragoo, Corinn Jackson, and Judith A. Paulson, Littler

When to Include This Statement

California employers that employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce are covered under the Family and Medical Leave Act (Fed-FMLA) and the California Family Rights Act (CFRA) and should include a family and medical leave statement in their handbook if they have one.

When counting the number of employees, the CFRA requires that employers count employees out on paid or unpaid leave, including CFRA leave, disciplinary suspension, or other leave, so long as the employer has a reasonable expectation that the employee will later return to active employment.

The 20 or more workweeks can be consecutive or nonconsecutive.

Employees who appear on an employer's payroll for a particular pay period are considered to be employed each working day of the applicable calendar week(s) and must be counted towards the 50-employee threshold even if the employee does not receive pay for the calendar week(s), so long as the employer has a reasonable expectation that the employee will later return to active employment. This includes full- and part-time employees, seasonal employees and employees on a temporary leave of absence.

Employees who start work for an employer after the first working day of a calendar week or terminate employment before the last working day of a calendar week should not be counted as being employed during that particular calendar week.

Employers should only count employees who are employed in the United States or any United States territory or possession.

Independent contractors are not counted.

Employees jointly employed by two employers must be counted by both employers, whether or not maintained on one of the employer's payroll, in determining employer coverage and employee eligibility.

Customizable Handbook Statement

Family and Medical Leave

The Company will grant family and medical leave in accordance with the requirements of applicable federal and state law in effect at the time the leave is granted. Although the federal and state laws have different names, the Company refers to the federal Family and Medical Leave Act (Fed-FMLA) and the California Family Rights Act (CFRA), collectively referred to as "FMLA Leave." In any case, employees will be eligible for the most generous benefits available under applicable law.

Employee Eligibility

To be eligible for FMLA Leave, employees must: (1) have been employed by the Company for a total of at least 12 months (52 weeks), at any time prior to the commencement of a CFRA leave; (2) have worked at least 1,250 hours over the previous 12 months as of the start of the leave; and (3) have worked at a location where at least 50 employees are employed by the Company within 75 miles of the employee's worksite, as of the date the leave is requested. Eligibility requirements may differ for employees who have been on a protected military leave of absence. If employees are unsure whether they qualify for FMLA Leave, they should contact Human Resources [or insert name/contact details for appropriate company representative or department].

Reasons for Leave

Federal and state laws allow FMLA Leave for various reasons. Because employees' legal rights and obligations may vary depending upon the reason for the FMLA Leave, it is important to identify the purpose or reason for the leave. Fed-FMLA leave and CFRA leave run concurrently except for the following reasons: to care for a registered domestic partner or a child of a registered domestic partner (CFRA only), incapacity due to pregnancy or prenatal care as a serious health condition (Fed-FMLA only), qualifying exigency leave (Fed-FMLA only) and military caregiver leave (Fed-FMLA only). Additionally, CFRA coverage for an employee's own serious health condition that also constitutes a disability under the California's Fair Employment and Housing Act (FEHA) is separate and distinct from FEHA protections. If the employee cannot return to work at the expiration of the CFRA leave, the Company will work with the employee to determine whether an extension of the leave would be a reasonable accommodation under the FEHA.

FMLA Leave may be used for one of the following reasons:

  • The birth, adoption or foster care of an employee's child within 12 months following birth or placement of the child (Bonding Leave);
  • To care for an immediate family member (spouse, registered domestic partner, child, child of a registered domestic partner or parent) with a serious health condition (Family Care Leave);
  • An employee's inability to work because of a serious health condition (Serious Health Condition Leave);
  • A "qualifying exigency," as defined under the FMLA, arising from a spouse's, child's or parent's "covered active duty" as a member of the military reserves, National Guard or Armed Forces (Qualifying Exigency Leave); or
  • To care for a spouse, child, parent or next of kin (nearest blood relative) who is a "Covered Servicemember" (Military Caregiver Leave).

Definitions

  • "Child," for purposes of Bonding Leave and Family Care Leave, means a biological, adopted or foster child; a stepchild; a legal ward; or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA Leave is to commence. "Child," for purposes of Qualifying Exigency Leave and Military Caregiver Leave, means a biological, adopted or foster child; stepchild; legal ward; or a child for whom the person stood in loco parentis, and who is of any age.
  • "Parent," for purposes of this policy, means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the person. This term does not include parents-in-law. For Qualifying Exigency Leave taken to provide care to a parent of a deployed military member, the parent must be incapable of self-care as defined by the FMLA.
  • "Covered Active Duty" means (1) in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and (2) in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty (or notification of an impending call or order to active duty) in support of a contingency operation as defined by applicable law.
  • "Covered Servicemember" means (1) a member of the Armed Forces, including a member of a reserve component of the Armed Forces, who is undergoing medical treatment, recuperation or therapy; is otherwise in outpatient status; or is otherwise on the temporary disability retired list, for a serious injury or illness incurred or aggravated in the line of duty while on active duty that may render the individual medically unfit to perform his or her military duties; or (2) a person who, during the five years prior to the treatment necessitating the leave, served in the active military, Naval or Air Service, and who was discharged or released under conditions other than dishonorable (a "veteran" as defined by the Department of Veteran Affairs), and who has a qualifying injury or illness incurred or aggravated in the line of duty while on active duty that manifested itself before or after the member became a veteran. For purposes of determining the five-year period for covered veteran status, the period between October 28, 2009, and March 8, 2013, is excluded.
  • "Spouse" means a husband or wife. Husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law in the state in which the marriage was entered into or, in the case of a marriage entered into outside of any state, if the marriage is valid in the place where entered into and could have been entered into in at least one state. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a state that recognizes such marriages; or (2) if entered into outside of any state, is valid in the place where entered into and could have been entered into in at least one state. For purposes of CFRA leave, a spouse includes a registered domestic partner or a same-sex partner in marriage.
  • "Key employee" means a salaried FMLA Leave eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's worksite at the time of the FMLA Leave request.
  • "Serious health condition" means an illness, injury, impairment or physical or mental condition that involves either:
    • Inpatient care (including, but not limited to, substance abuse treatment) in a hospital, hospice or residential medical care facility, including any period of incapacity (that is, inability to work, attend school or perform other regular daily activities) or any subsequent treatment in connection with this inpatient care; or
    • Continuing treatment (including, but not limited to, substance abuse treatment) by a health care provider that includes one or more of the following:
      • A period of incapacity (that is, inability to work, attend school or perform other regular daily activities due to a serious health condition, its treatment or the recovery that it requires) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves treatment two or more times via an in-person visit to a health care provider, or at least one visit to a health care provider that results in a regimen of continuing treatment under the supervision of the health care provider.
      • Any period of incapacity due to pregnancy or prenatal care (under the Fed-FMLA, but not the CFRA).
      • Any period of incapacity or treatment for incapacity due to a chronic serious health condition that requires periodic visits to a health care provider, continues over an extended period of time and may cause episodic incapacity.
      • A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective, such as Alzheimer's, a severe stroke and the terminal stages of a disease.
      • Any period of absence to receive multiple treatments (including any period of recovery) by a health care provider either for (a) restorative surgery after an accident or other injury; or (b) a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment.
  • "Serious injury or illness" in the case of a current member of the Armed Forces, National Guard or Reserves is an injury or illness incurred by a covered servicemember in the line of duty on active duty (or that preexisted the member's active duty and was aggravated by service in the line of duty on active duty) in the Armed Forces that may render him or her medically unfit to perform the duties of his or her office, grade, rank or rating. In the case of a covered veteran, "serious injury or illness" means an injury or illness that was incurred in the line of duty on active duty (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty) and that manifested itself before or after the member became a veteran.
  • "Qualifying exigency" is defined by the Department of Labor and generally includes events related to short-notice deployment, military ceremonies, support and assistance programs, changes in childcare, school activities, financial and legal arrangements, counseling and post-deployment activities. Qualifying Exigency Leave may also be used to spend up to 15 days with military members who are on short-term, temporary, rest and recuperation leave during their period of deployment.

Length of Leave

If the reason for leave is common to both Fed-FMLA and CFRA and, therefore, running concurrently, the maximum amount of FMLA Leave will be 12 workweeks in any 12-month period when the leave is taken for: (1) Bonding Leave; (2) Family Care Leave; and (3) Serious Health Condition Leave. If the reason for leave is not common to both Fed-FMLA and CFRA and, therefore, not running concurrently, then an eligible employee may be entitled to additional leave under applicable law.

When the reason for leave is Bonding Leave under either the Fed-FMLA or CFRA and both spouses work for the Company and are eligible for leave under this policy, the spouses will be limited to a total of 12 workweeks off between the two of them. However, the Company will not limit the spouses' entitlement to CFRA for any qualifying reason other than Bonding Leave. When the reason for leave is Family Care Leave and both spouses work for the Company and are eligible for leave under this policy, the spouses will be limited to a total of 12 workweeks off between the two of them under Fed-FMLA. A 12-month period begins on the date of the employee's first use of FMLA Leave. Successive 12-month periods commence on the date of the employee's first use of such leave after the preceding 12-month period has ended.

The maximum amount of Fed-FMLA Leave for an employee wishing to take Military Caregiver Leave will be a combined leave total of 26 workweeks in a single 12-month period. A "single 12-month period" begins on the date of the employee's first use of such leave and ends 12 months after that date.

If both spouses work for the Company and are eligible for leave under this policy, the spouses will be limited to a total of 26 workweeks off between the two when the leave is for Military Caregiver Leave only or is for a combination of Military Caregiver Leave, Bonding Leave and/or Family Care Leave taken to care for a parent.

To the extent required by law, leave beyond an employee's FMLA Leave entitlement may continue or be granted when the leave is necessitated by an employee's work-related injury or illness, a pregnancy-related disability or a "disability" as defined under the Americans with Disabilities Act (ADA) and/or applicable state or local law. Certain restrictions on these benefits may apply.

Intermittent or Reduced Schedule Leave

Under some circumstances, employees may take FMLA Leave intermittently, which means taking leave in blocks of time or reducing the employee's normal weekly or daily work schedule. An employee may take leave intermittently or on a reduced schedule whenever it is medically necessary to care for the employee's child, parent or spouse with a serious health condition or because the employee has a serious health condition. The medically necessity of the leave must be determined by the health care provider of the person with the serious health condition.

Intermittent or reduced schedule leave may also be taken for absences where the employee or his or her family member is incapacitated or unable to perform the essential functions of the job because of a chronic serious health condition, even if the person does not receive treatment by a health care provider. Leave due to military exigencies may also be taken on an intermittent basis.

Leave taken intermittently may be taken in increments of no less than [insert the shortest increment of time used to account for leaves, provided it is not greater than one hour]. Employees who take leave intermittently or on a reduced work schedule basis for planned medical treatment must make a reasonable effort to schedule the leave so as not to unduly disrupt the Company's operations. Please contact Human Resources [or insert name/contact details for appropriate company representative or department] prior to scheduling medical treatment. If FMLA Leave is taken intermittently or on a reduced schedule basis due to planned medical treatment, we may require employees to transfer temporarily to an available alternative position with an equivalent pay rate and benefits, including a part-time position, to better accommodate recurring periods of leave.

If an employee using intermittent leave or working a reduced schedule finds it physically impossible to start or stop work mid-way through a shift in order to take CFRA leave and is therefore, forced to be absent for the entire shift, the entire period will be counted against the employee's CFRA entitlement. However, if there are other aspects of work that the employee is able to perform that are not physically impossible, then the employee will be permitted to return to work, thereby reducing the amount of time to be charged to the employees' CFRA entitlement.

[OPTIONAL: Requests for intermittent or reduced schedule leave for the birth or placement of a child may be directed to Human Resources [or insert name of appropriate company representative or department] and will be considered on a case-by-case basis depending on the needs of the Company. If the request is granted, the Company may require the employee to transfer temporarily to an available alternative position.]

[OPTIONAL: CFRA leave for Bonding Leave does not have to be taken in one continuous period of time, but the minimum duration is two weeks. However, the Company will grant requests for additional occasions of leave lasting less than two weeks. Bonding Leave must be concluded within one year of the birth or placement of the child.]

[OPTIONAL: If employees have been approved for intermittent leave and they request leave time that is unforeseeable, they must specifically reference either the qualifying reason for leave or the need for FMLA Leave at the time they call off.]

Notice and Certification

Bonding, Family Care, Serious Health Condition and Military Caregiver Leave Requirements

Employees are required to provide:

  • When the need for the leave is foreseeable, 30 days' advance notice or such notice as is both possible and practical if the leave must begin in fewer than 30 days (normally this would be the same day the employee becomes aware of the need for leave or the next business day);
  • When the need for leave is not foreseeable, notice within the time prescribed by the Company's normal absence reporting policy, unless unusual circumstances prevent compliance, in which case notice is required as soon as is otherwise possible and practical;
  • When the leave relates to medical issues, a completed Certification of Health Care Provider form within 15 calendar days (for Military Caregiver Leave, an invitational travel order or invitational travel authorization may be submitted in lieu of a Certification of Health Care Provider form);
  • Periodic recertification (as allowed by law); and
  • Periodic reports during the leave.

In addition to other notice provisions, employees requesting leave for CFRA qualifying reasons, must respond to any questions designed to determine whether an absence is potentially qualifying for leave under this policy. Failure to respond to permissible inquiries regarding the leave request may result in denial of CFRA Leave protections. Similarly, an employee or the employee's spokesperson may be required to provide additional information needed to determine whether a requested leave qualifies for Fed-FMLA protections.  An employee's failure to adequately explain the reason for the leave may result in the denial of Fed-FMLA protections.

Certification forms are available from Human Resources [or insert name/contact details for appropriate company representative or department]. At the Company's expense, we may require a second or third medical opinion regarding the employee's own serious health condition for Fed-FMLA purposes and, for CFRA purposes, the employee's own serious health condition or the serious health condition of an employee's family member. In limited cases, we may require a second or third opinion regarding the injury or illness of a Covered Servicemember. Employees are expected to cooperate with the Company in obtaining additional medical opinions that we may require.

When leave is for planned medical treatment, employees must try to schedule treatment so as not to unduly disrupt the Company's operation. Please contact Human Resources [or insert name/contact details for appropriate company representative or department] prior to scheduling planned medical treatment.

If an employee does not provide the certification as requested, the FMLA Leave will not be protected.

Recertification After Grant of Leave

In addition to the requirements listed above, if an employee's Fed-FMLA leave is certified, the Company may later require medical recertification in connection with an absence that the employee reports as qualifying for Fed-FMLA leave. For example, the Company may request recertification if (1) the employee requests an extension of leave; (2) the circumstances of the employee's condition as described by the previous certification change significantly (e.g., employee absences deviate from the duration or frequency set forth in the previous certification; employee's condition becomes more severe than indicated in the original certification; employee encounters complications); or (3) the Company receives information that casts doubt upon the employee's stated reason for the absence. In addition, the Company may request recertification in connection with an absence after six months have passed since the employee's original certification, regardless of the estimated duration of the serious health condition necessitating the need for leave. Any recertification requested by the Company will be at the employee's expense.

In addition to the requirement listed above, a recertification under the CFRA may only be requested at the expiration of the time period in the original certification for time off for the employee's own serious health condition.

If an employee does not produce the recertification as requested, the leave will not be CFRA protected.

Qualifying Exigency Leave Requirements

Employees are required to provide:

  • As much advance notice as is reasonable and practicable under the circumstances;
  • A copy of the covered servicemember's active duty orders when the employee requests leave and/or documentation (such as Rest and Recuperation leave orders) issued by the military setting forth the dates of the servicemember's leave; and
  • A completed Certification of Qualifying Exigency form within 15 calendar days, unless unusual circumstances exist to justify providing the form at a later date.

Certification forms are available from Human Resources [or insert name/contact details for appropriate company representative or department].

Failure to Provide Notice or Certification and to Return From Leave

Absent unusual circumstances, failure to comply with these notice and certification requirements may result in a delay or denial of the leave. If an employee fails to return to work at the leave's expiration and has not obtained an extension of the leave, the Company may presume that the employee does not plan to return to work and has voluntarily terminated his or her employment.

Compensation During Leave

Generally, FMLA Leave is unpaid. However, employees may be eligible to receive benefits through state-sponsored programs or the Company's sponsored wage-replacement benefit programs. Employees may also choose to use accrued vacation and sick leave, to the extent permitted by law and the Company's policy. If employees elect to have wage-replacement benefits and accrued paid leave integrated, the integration will be arranged such that employees will receive no greater compensation than their regular compensation during this period. [OPTIONAL: The Company may require employees to use accrued vacation to cover some or all of a Fed-FMLA leave. However, the Company will only require employees to use accrued vacation for CFRA leave if it is otherwise unpaid. The CFRA leave is not unpaid if the employee is receiving state disability insurance, short or long term disability payments pursuant to an employer provided plan, or is receiving Paid Family Leave through the state.] The use of paid benefits will not extend the length of FMLA Leave.

Benefits During Leave

The Company will continue making contributions to employees' group health benefits during their leave on the same terms as if the employees had continued to actively work. This means that if employees want their benefits coverage to continue during their leave, they must also continue to make the same premium payments that they are now required to make for themselves or their dependents. Employees taking Bonding Leave, Family Care Leave, Serious Health Condition Leave and Qualifying Exigency Leave will generally be provided with group health benefits for a 12-workweek period. When the reason for leave is for a pregnancy disability, which is a serious health condition under the Fed-FMLA but not the CFRA, and the employee takes additional time off that qualifies as CFRA leave, the Company will continue the employee's health insurance benefits for up to a maximum of 12 workweeks in a 12-month period. Employees taking Military Caregiver Leave may be eligible to receive group health benefits coverage for up to a maximum of 26 workweeks. In some instances, the Company may recover premiums it paid on an employee's behalf to maintain health coverage if the employee fails to return to work following FMLA Leave.

An employee's length of service will remain intact, but benefits such as vacation and sick leave may not accrue while on an unpaid FMLA Leave.

Job Reinstatement

Under most circumstances, employees will be reinstated to the same position they held at the time of the leave or to an equivalent position with equivalent pay, benefits and other terms and conditions of employment. If an employee becomes unqualified during their CFRA leave as a result of not attended a necessary course, or renewing a license, the employee will be given a reasonable opportunity to fulfill those conditions upon returning to work. Further, the Company may grant an employee's request to work a different shift, in a different or better position, or in a different location, that is better suited to the employee's personal needs upon returning from CFRA leave. The Company will also consider a reasonable accommodation under the FEHA if the employee is returning from CFRA leave for their own serious health condition. However, employees have no greater right to reinstatement than if they had been continuously employed rather than taken leave. For example, if an employee would have been laid off or his or her position would have been eliminated even if he or she had not gone on leave, then the employee will not be entitled to reinstatement.

[OPTIONAL: Prior to being allowed to return to work, an employee wishing to return from a Serious Health Condition Leave must submit an acceptable release from a health care provider that certifies the employee is able to resume work. For an employee on intermittent or a reduced scheduled FMLA Leave, such a release may be required up to once every 30 days if reasonable safety concerns exist regarding the employee's ability to perform his or her duties, based on the serious health condition for which the employee took the intermittent or reduced schedule leave.]

Key employees may be subject to reinstatement limitations in some circumstances. If employees are considered a "key employee," those employees will be notified of the possible limitations on reinstatement at the time the employee requests a leave of absence, or when leave begins, if earlier.

Confidentiality

Documents relating to medical certifications, recertifications or medical histories of employees or employees' family members will be maintained separately and treated as confidential medical records, except that in some legally recognized circumstances, the records (or information in them) may be disclosed to supervisors and managers, first aid and safety personnel or government officials.

Fraudulent Use of FMLA Leave Prohibited

An employee who fraudulently obtains FMLA Leave from the Company is not protected by the Fed-FMLA's or the CFRA's job restoration or maintenance of health benefits provisions. In addition, the Company will take all available appropriate disciplinary action against an employee due to such fraud.

Nondiscrimination

The Company takes its FMLA Leave obligations very seriously and will not interfere with, restrain or deny the exercise of any rights provided by the Fed-FMLA or the CFRA. We will not terminate or discriminate against any individual for opposing any practice or because of involvement in any proceeding related to the Fed-FMLA or CFRA. If an employee believes that his or her Fed-FMLA or CFRA rights have been violated in any way, he or she should immediately report the matter to Human Resources [or insert name/contact details for appropriate company representative or department].

Additional Documentation

The Company's "Employee Rights and Responsibilities" notice provides additional details regarding employees' rights and responsibilities under the Fed-FMLA. Employees may obtain a copy of the "Employee Rights and Responsibilities" notice from Human Resources [or insert name/contact details for appropriate company representative or department].

Employees should contact Human Resources [or insert name/contact details for appropriate company representative or department] as to any Fed-FMLA or CFRA questions they may have.

Guidance for Employers

  • The Family and Medical Leave Act (Fed-FMLA) and California Family Rights Act (CFRA), collectively referred to as "FMLA Leave," require private employers of 50 or more employees to provide eligible employees up to 12 workweeks of unpaid leave for, among other things, the birth or adoption of a child or the care of a seriously ill child and 26 weeks of unpaid leave to care for a covered servicemember. Both laws also require employers to return employees to the same or an equivalent position at the end of their leaves. For purposes of the CFRA, an "employer" includes employment agencies, labor organizations and joint labor-management committees, but does not include a nonprofit religious association or a nonprofit corporation.
  • Covered employers also include joint employers and successors-in-interest. Regulations under the CFRA do not specify what test should be used to determine joint employer status, indicating instead that the entire relationship should be viewed in its totality and based on the economic realities of the situation. CFRA regulations further explain that, when an employee performs work that simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as:
    • When there is an arrangement between employers to share an employee's services or to interchange employees;
    • When one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or
    • When the employers are not completely disassociated with respect to the employee's employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer.
  • The California Department of Fair Employment and Housing (FEHA) amended regulations implementing the CFRA. Among other things, the amendments to the regulations, which took effect on July 1, 2015, revised the definitions of covered employer and eligible employee; expanded upon employees' rights upon return from employment; implemented significant changes regarding key employees' reinstatement rights; clarified the relationship between CFRA leave and pregnancy disability leave and updated notice and posting requirements.
  • The Equal Employment Opportunity Commission (EEOC) has provided guidance on employer-provided leaves of absence as a reasonable accommodation under the ADA. In the EEOC's view, a request for leave due to a medical condition must be treated as a request for a reasonable accommodation that prompts the employer to engage the employee in the interactive process. An employer may have to provide unpaid leave to an employee with a disability as a reasonable accommodation even if the employer does not customarily offer leave as a benefit or even if the employee has exhausted or otherwise is not eligible for leave under existing policies.
  • The EEOC's guidance offers some insight about whether and when a leave of absence may be considered an undue hardship (and therefore not entitling an employee to leave). For example, indefinite leave, meaning that an employee or her doctor cannot say whether or when she will be able to return to work, does constitute an undue hardship.
  • Employers should avoid maintaining a stand-alone inflexible leave policy, such as a policy providing that employees are terminated if they are absent for a set amount of time (e.g., a policy providing for immediate termination of employees who are absent for any reason for more than six months). The EEOC has not said that an employer's written policy needs to provide for a longer period or that leave must be paid, however they have said that a policy must be flexible enough to allow employers and their employees to have the conversation about whether a certain leave request can be accommodated without causing undue hardship.
  • Eligible employees are those employees with 12 months of service, who have worked at least 1,250 hours during the 12-month period prior to the start of a FMLA Leave and who work at a location where at least 50 employees are employed by the employer within 75 miles of the employee's "worksite." Under the CFRA, a worksite can refer to either a single location or a group of contiguous locations. For employees with no fixed worksite, the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. For example, if a sales employee works from home in California but reports to and receives work assignments from her corporate headquarters in Oregon, the Oregon headquarters, not her home, would be considered the "worksite" for purposes of CFRA eligibility. When determining whether the employee's worksite has 50 employees within a 75-mile radius for purposes of CFRA eligibility, the Oregon headquarters should be the reference point, not the employee's home address. Under the Fed-FMLA a worksite can be several buildings in a metropolitan area (if the employer uses them for the same purpose and shares staff and equipment between locations) and/or the home base to which the employee reports or get their assignments.
  • The 12 months of service does not need to be consecutive. Employers must count any period of prior employment within seven years when determining eligibility. Employment prior to a break in service does not have to be considered for purposes of FMLA eligibility unless the break in service is caused by a military service obligation or unless the employer and employee have a written agreement to the contrary.
  • Employees may become FMLA-eligible while out on a leave of absence. If an employee is not eligible for FMLA leave at the start of a leave (i.e., because the employee has not met the 12-month length of service requirement), the employee may meet this requirement while on a non-FMLA leave, because leave to which the employee is otherwise entitled counts toward length of service (although not for the 1,250-hour requirement).
  • If an employer employs airline flight crew employees, such employees are leave-eligible if they: (1) have worked or been paid for not less than 60 percent of the applicable total monthly guarantee (the minimum number of hours for which the employer has agreed to schedule the employee for any given month under the applicable collective bargaining agreement or employer's policies); and (2) have worked or been paid for not less than 504 hours during the 12 months prior to taking leave. An eligible airline flight crew employee is entitled to 72 days of leave during any 12-month period for Fed-FMLA-qualifying reasons other than military caregiver leave, and 156 days of leave during a single 12-month period for military caregiver leave. For intermittent or reduced schedule leave, the employer must account for the leave using an increment no greater than one day.
  • If an employer only retains records for the maximum time prescribed by the Fed-FMLA (three years), then the employee must submit sufficient proof of his or her prior employment. There are exceptions to the seven-year rule requiring employers to count older periods of employment for employees with a Uniformed Services Employment and Reemployment Rights Act (USERRA)-covered military service obligation or for employees with written contracts regarding an employer's intention to rehire him or her, including, but not limited to, collective bargaining agreements.
  • Under the CFRA, "spouse" means a partner in marriage and a registered domestic partner as defined by statute. "Spouse" also includes same-sex partners in marriage.
  • Under the Fed-FMLA, "spouse" means a husband or wife. Husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the state in which the marriage was entered into or, in the case of a marriage entered into outside of any state, if the marriage is valid in the place where entered into and could have been entered into in at least one state. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a state that recognizes such marriages; or (2) if entered into outside of any state, is valid in the place where entered into and could have been entered into in at least one state.
  • In California, an employee is eligible for CFRA benefits to care for a registered domestic partner or the child of a registered domestic partner.
  • Employers have five business days to respond to employees' FMLA Leave requests.
  • Where an employee's request for CFRA leave is not clear, employers may question the employee to determine whether CFRA leave is being requested and to get the necessary information regarding the leave. Employees are obligated to answer an employer's questions, and if they fail to do it can result in denial of CFRA protection if the employer is unable to determine whether the leave is CFRA qualifying.
  • Similarly, where an employer does not have sufficient information about the reason for an employee's use of leave, under the Fed-FMLA, the employer should inquire of the employee or the employee's spokesperson to determine whether the reason for the leave is Fed-FMLA qualifying. At all times, the employee must provide enough information to the employer so that the employer is able to determine whether the leave is Fed-FMLA qualifying and if they fail to do so, it can result in the denial of Fed-FMLA protection.
  • For an employee taking Family Leave Care Leave or Serious Health Condition Leave, an employer may ask for recertification only if the original certification has expired and additional leave is requested.
  • For an employee taking Family Care Leave or Serious Health Condition Leave under the CFRA, an employer may not contact a health care provider for any reason other than to authenticate the medical certification.
  • An employer may at its own expense obtain a second opinion from an employer designated or approved health care provider, if the employer has a good faith, objective reason to doubt the validity of the certification provided by the employee for the employee's own serious health condition, with the following limitations:
    • The health care provider must not be employed on a regular basis by the employer;
    • The employer must not ask the employee to provide additional information, for example, symptoms, diagnosis, in the medical certification beyond that permitted by the CFRA regulations; and
    • The employer must maintain the confidentiality of the medical certification in compliance with CFRA regulations.
  • An employer may require an employee returning from Serious Health Condition Leave under the CFRA to submit a release to return to work from the employee's health care provider stating the employee may resume work only if the employer requires such certification from other employees returning to work after an illness, injury or disability.
  • An employer may not require a release to return to work for each absence for an employee on intermittent or reduced schedule leave, except for absences up to once every 30 days if reasonable safety concerns exist regarding the employee's ability to perform their duties.
  • Choose and consistently use a single method of 12-month calculations, selected from one of four. The rolling 12-month period (measured backward from the date an employee uses any FMLA Leave) is the only method that prevents potential stacking at the end of one leave year and the beginning of the next leave year. The other methods for calculating the 12-month period are:
    • The calendar year;
    • Any fixed 12-month year, e.g., the fiscal year or one year starting on the anniversary of the employee's employment; and
    • The 12-month period measured forward from the date an employee first takes FMLA Leave.
  • Notify employees of chosen 12-month method for calculating leave and provide at least 60 days' notice when any change is made to the chosen method.
  • If an employee's schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would have worked if not for the CFRA leave, the employer must use a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type).
  • If both parents are eligible for FMLA, are employed by the same employer, and are taking Bonding Leave, the employer may limit the parents to a combined total of 12 workweeks in a 12-month period. Likewise, if spouses eligible for Fed-FMLA are employed by the same employer and are taking Family Care Leave, the employer may limit the spouses to a combined total of 12 workweeks in a 12-month period and if the spouses are taking Military Caregiver Leave, may be limited to a combined total of 26 workweeks in a 12-month period. However, the employer may not limit the employees' entitlement to CFRA leave for any other qualifying purpose, except Bonding Leave.
  • When calculating Military Caregiver Leave, track time from the first day leave is taken regardless of the method used by the employer to determine the employee's entitlement to Fed-FMLA leave for other Fed-FMLA-qualifying reasons.
  • When selecting an increment of time under the "Intermittent or Reduced Schedule Leave" section, insert the shortest increment of time the company uses to account for any other non-FMLA Leave. In any case, the increment may not be greater than one hour for FMLA Leave. The employer may voluntarily permit smaller increments to be used for FMLA Leave than for other types of leave, but this is not required.
  • The OPTIONAL paragraph in the "Length of Leave" section regarding the Americans with Disabilities Act (ADA) and/or applicable state or local law is not required under the Fed-FMLA, ADA or workers' compensation laws; however, it is prudent to include it. The Equal Employment Opportunity Commission's (EEOC's) position is that a leave of absence may serve as a reasonable accommodation under the ADA, and it is closely scrutinizing cases involving exhaustion of Fed-FMLA leave where an employer's obligations under the Fed-FMLA and ADA may overlap. Employers should consider seeking legal counsel regarding these potential extended leave obligations.
  • Under the Fed-FMLA, when leave is for the birth or placement of a child, use of intermittent leave is subject to the employer's approval. A pregnant employee, however, may take leave intermittently for prenatal examinations or for her own condition, such as severe morning sickness. It is important to note that less severe pregnancy-related impairments may qualify as disabilities under the ADA for which leave may be a reasonable accommodation. Employees may be eligible for such leave in addition to Fed-FMLA leave. Similarly, if an employee takes Fed-FMLA leave for a serious health condition related to pregnancy, she may be allowed to take additional leave beyond the maximum Fed-FMLA leave if the additional leave would be considered a reasonable accommodation under the ADA.
  • Remove the OPTIONAL paragraph contained in the "Intermittent and Reduced Schedule Leave" section that indicates the employee must provide the qualifying reason for leave during intermittent leave if the company does not require employees who are out on other non-FMLA leaves (e.g., personal leave, sick leave) to state the reason for their absence when they call out. If this paragraph is included, it is advisable to also include such language in the call out/absence reporting language itself.
  • Require a second or third opinion regarding the illness or injury of a Covered Servicemember only when the employee has submitted certification from a health care provider who is not TRICARE- or Department of Defense (DOD)-affiliated or DOD-approved. This will not be a common situation.
  • If employees are on an FMLA Leave but are not eligible to continue paid group health insurance coverage, in some circumstances they may be eligible to continue their coverage under the federal Consolidated Omnibus Budget Reconciliation Act (COBRA) and/or state health care continuation guidelines by making monthly payments to the company for the amount of the relevant premium.
  • Compensation during leave is dependent on the employer and the type of leave. If the employer wants to require use of vacation or other paid leave concurrently with FMLA Leave, and/or include terms under which the employee may elect to use various types of paid leave, the policy statement should be customized to reflect those decisions. Employers should also customize based on the types of leave they provide (e.g., vacation, sick leave, PTO) and/or any available state-provided wage replacement benefit programs. However, if pregnancy disability leave runs concurrently with Fed-FMLA leave, an employer can only allow and not require use of available vacation or PTO. Once pregnancy disability leave has concluded, the employer may require use of vacation during any remaining Fed-FMLA leave and any subsequent CFRA leave the employee takes.
  • A policy statement requiring the use of PTO must apply equally to non-FMLA leaves, but the employer may choose to be more lenient with employees on FMLA Leave regarding situations under which employees may voluntarily use paid time off (e.g., excusing a two-week advance notice requirement for vacation). The provision in the policy statement contemplates that employees may be able to supplement partial wage replacement benefits (i.e., state disability benefits) with partial paid time off (e.g., sick pay) up to the employee's regular compensation. This may not be required by employers or demanded by employees, but the parties may agree to it. If the employer does not wish to agree to it as a matter of policy, reference to it in the leave policy may be omitted.
  • Under the CFRA, an employee may also elect to use, or an employer may require an employee to use, any accrued sick leave that the employee is eligible to take during the otherwise unpaid portion of a CFRA leave if the CFRA leave is for the employee's own serious health condition or any other reason if mutually agreed between the employer and the employee. However, it is not clear under the California Healthy Families Healthy Workplaces Act (HFHWA) whether employers can require the use of paid sick leave provided in accordance with that law. Accordingly, the more conservative approach is to allow employees to use the leave, but not force its use.
  • If an employee is receiving a partial wage replacement benefit during the CFRA leave, the employer and employee may agree to have employer-provided paid leave, such as vacation, paid time off or sick time supplement the partial wage replacement benefit, unless otherwise prohibited by law. However, it is not clear whether employers can require this integration of all paid benefits. Employers can, however, note that, if an employee elects integration, then the integration will be arranged so that the employee receives not more than 100% of his or her pay.
  • Under the Fed-FMLA, an employee may elect to substitute accrued paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave. When an employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that he or she must satisfy the requirements of the paid leave policy only in connection with the receipt of payment, not in connection with taking the FMLA leave.
  • For leave for an employee's own serious health condition, the employee may also substitute leave taken pursuant to a short- or long-term disability leave plan, as determined by the terms and conditions of the employer's leave policy, during the otherwise unpaid portion of the CFRA leave. This paid disability leave runs concurrently with CFRA leave, and may continue longer than the CFRA leave if permitted by the disability leave plan. An employee receiving any form of disability payments is not on "unpaid leave" and, therefore, an employer may not require the employee to use paid time off, sick leave or accrued vacation during CFRA leave.
  • An employee receiving Paid Family Leave to care for the serious health condition of a family member or to bond with a new child is not on "unpaid leave," for purposes of the CFRA and, therefore, an employer may not require the employee to use paid time off, sick leave or accrued vacation.
  • Employers must maintain and pay for group health coverage during the entire time an employee is on unpaid, protected pregnancy disability leave (PDL) of up to four months, in addition to any subsequent CFRA leave of up to 12 weeks. This is true even when an employer designates PDL as family and medical leave under Fed-FMLA. The entitlements to employer-paid group health coverage during pregnancy disability leave and during CFRA are two separate and distinct entitlements.
  • Customization will also be needed if the employer does not require employees out on non-FMLA medical leaves of absence to provide releases to return to work (i.e., fitness-for-duty certification). Also, employers that do require the release must provide, along with the Fed-FMLA designation notice, a list of the employee's essential job functions. The employer can instead choose to require only a simple statement of ability to return to work (again, as long as this is also required of employees returning from non-FMLA medical leave). In that case, the list of essential job functions need not be provided with the FMLA designation notice.
  • Under the CFRA, an eligible employee is entitled to reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence during leave. Additionally, if an employee is no longer qualified for the position because of the employee's inability to attend a necessary course, renew a license, fly a minimum number of hours, or other non-qualifying reason, as a result of the leave, the employee must be given a reasonable opportunity to fulfill those conditions upon returning to work.
  • The FMLA's general guarantee of reinstatement after leave may not apply to key employees. For purposes of both the CFRA and Fed-FMLA, a "key employee" is an employee who is paid on a salary basis and is amongst the highest paid 10% of the employer's employees working within 75 miles of the employee's worksite at the time of the leave request. An employer may refuse to reinstate a key employee to his or her same position or to a comparable position if the employer establishes that all of the following conditions exist:
    • The employee requesting the FMLA leave is a salaried employee;
    • The employee requesting the leave is among the highest paid 10% of the employees who are employed within 75 miles of the worksite at which that employee is employed at the time of the leave request; and
    • The refusal to reinstate the employee is necessary because the employee's reinstatement will cause substantial and grievous economic injury to the operations of the employer.
  • Employers must comply with certain notification procedures surrounding a key employee's request for CFRA leave. The employer must notify the employee in writing at the time the employee requests CFRA leave that the employee is a key employee and risks losing the right to reinstatement. The employer must then notify the employee at the commencement of leave that while the employer cannot deny CFRA leave, it intends to deny reinstatement on completion of the leave. This notice must be served either in person or by certified mail. The notice must explain the basis for the employer's finding that substantial and grievous economic injury will result, and, if leave has commenced, must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the duration of the leave and the urgency of the need for the employee to return.
  • After an employer notifies an employee that substantial and grievous economic injury will result if the employer reinstates the employee, the employee still is entitled to request reinstatement at the end of the leave period even if he or she did not return to work in response to the employer's notice. The employer must then again determine whether reinstatement will result in substantial and grievous economic injury, based on the facts at that time. If the employer determines that substantial and grievous economic injury will result, the employer must notify the employee in writing (in person or by certified mail) of the denial of reinstatement.
  • An employer who fails to provide the required notices will lose its right to deny restoration even if substantial and grievous economic injury will result from reinstatement of the key employee.
  • During leave, the employee is entitled to continuation of health benefits even if the employer has provided notification that it intends to deny reinstatement. An employee's rights under the CFRA continue until he or she informs the employer that he or she does not wish to return to work, or until the employer actually denies reinstatement at the conclusion of the leave.
  • Any violation of the CFRA is considered interfering with, restraining or denying an employee's CFRA rights. Examples of interfering with an employee's CFRA rights include:
    • Refusing to authorize CFRA leave;
    • Discouraging the use of CFRA leave; and
    • Avoiding responsibilities under CFRA by:
      • Keeping worksites below the 50 employee threshold by transferring employees from one worksite to another;
      • Changing the essential functions of a job to prevent the taking of a CFRA leave;
      • Reducing an employee's work hours to avoid employee eligibility; and
      • Terminating an CFRA eligible employee when it is anticipated that the employee will use CFRA in the future.
  • An employer's interference with an employee's or a prospective employee's CFRA rights includes:
    • Discrimination for having exercised or attempted CFRA use or giving information or testimony regarding the employee's or another person's CFRA leave in any inquiry or proceeding related to CFRA rights;
    • Failure to provide the same benefits (other than health benefits) to an employee on unpaid CFRA leave that are provided to an employee on another leave without pay;
    • Counting CFRA leave against an employee under an attendance policy; and
    • Using the taking of CFRA leave as a negative factor in employment actions including:
      • Hiring;
      • Promotion; and
      • Disciplinary Actions.
  • Employees cannot waive and an employer may not induce an employee to waive their FMLA rights. For example, employees cannot "trade off" their right to take FMLA leave against another benefit offered by the employer. However, this prohibition against waiver still provides that:
    • FMLA claims can be settled and released based on past employer conduct with approval of a court; and
    • Employees may voluntarily and without coercion accept a light duty assignment (not as a condition of employment) while recovering from the employee's serious health condition. The employee's acceptance of the light duty assignment does not constitute a waiver of FMLA rights including the right of reinstatement to the same or comparable position.
  • All individuals, not just FMLA-qualified employees, are protected from retaliation for opposing any unlawful practice or any practice they reasonably believe to be unlawful under the FMLA.
  • Download the "Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave notice, required for California employers with 50 or more employees. This is joint notice that includes information regarding family and medical leave and pregnancy disability leave.
  • Download the Employee Rights and Responsibilities Under the Family and Medical Leave Act poster, required for all employers covered under the Fed-FMLA. An employer must post this general notice explaining Fed-FMLA rights and responsibilities to provide information to employees and applicants of the Fed-FMLA's existence, even if no employee or applicant is eligible for Fed-FMLA leave. An employer must conspicuously display the poster in places easily visible to all employees and applicants. It must be posted in both English and Spanish, if a significant portion of the workforce is only fluent in Spanish.
  • Download Fed-FMLA certification forms and guidance.
  • The CFRA regulations require covered employers to post a notice in a conspicuous location in the workplace describing the right to CFRA leave. Any employer whose workforce at any facility or establishment contains 10 percent or more of individuals who speak a language other than English as their spoken language must translate the notice into every language that is spoken by at least 10 percent of the workforce. The notice must be posted prominently where it can be readily seen by employees and applicants for employment, and the poster and text must be large enough to be easily read and contain fully legible text. The regulations also provide that electronic posting is sufficient to meet the posting requirement.
  • If an employer publishes an employee handbook that describes other kinds of available personal or disability leaves, the employer must include a description of CFRA in the next published handbook after amendments to the CFRA regulations take effect on July 1, 2015. The employer may include the pregnancy disability leave and CFRA requirements in the same notice.
  • Employers should be attuned to requirements regarding mandatory sick time under California law and the laws of several municipalities in California, including Oakland and San Francisco. Employees taking FMLA Leave may elect to use this required paid sick leave when the reason for the leave is covered under both the paid sick leave law and the Fed-FMLA/CFRA. Typically, the FMLA Leave runs concurrently with the use of paid sick leave under these circumstances. However, employers must ensure compliance in tracking, incremental usage and other requirements that are specific to each type of law.
  • Regularly review and maintain the Family and Medical Leave policy to keep it current with the law.
  • Train supervisors on the Fed-FMLA and the CFRA, including how to enforce the Family and Medical Leave policy.