Family and Medical Leave In California
California is one of the few states that offers both a pregnancy disability leave and a family medical care leave for employees. In many cases, the protected leave can combine with paid benefits and the employee can have supplemented income while on leave. In other circumstances, the California protected leave is in addition to the Federal FMLA leave.
The purpose of this article is to provide an overview of the California Family Rights Act (CFRA) and the Federal Family Medical Leave Act (FMLA). In many aspects, these leave laws overlap in coverage and employee use, but there are distinct differences that employers should understand. For more information on California’s Pregnancy Disability Leave and on paid benefits for pregnancy-related disability and family, bonding see our guide: California’s Pregnancy Disability Leave, FMLA, and Paid Leave; An Overview for HR. Employers can also read our guide on California Sick Leave Laws or Kin Care for additional information.
California has some of the highest numbers of laws regarding employment law and protected leave in the United States. Employers in California must balance between both State and Federal laws. In addition, many of California’s cities have local, and often overlapping, sick leave, advanced scheduling and minimum wage laws that govern employees.
Plus, many of those laws have some of the highest penalties for employers in the country. That is why the software solutions that SwipeClock provides becomes so crucial for employers. It can make a difference of thousands of dollars in penalties and fines.
California Family Rights Act Overview
The California Family Rights Act provides a protected leave for qualified employees. It is very similar to FMLA but has some specific differences. Like FMLA, employers with 50 or more employees qualify under CFRA, but unlike FMLA there is not a 75-mile radius for those employees.
Just like FMLA, in order for employees to qualify under FMLA, they must have worked for the employer a total of 1,250 hours in the last 12 months and must have a total employment with the employer of 12 months. The 12 months of employment do not need to be consecutive.
Both the FMLA and CFRA protect an employee while on leave and requires that employees be reinstated to the same or a similar job upon returning to work.
California’s Family Rights Act is part of the Fair Housing and Employment Act, which requires employers to provide adequate accommodation to employees for both pregnancy and family care.
Both CFRA and FMLA provide up to 12 weeks of protected leave in a 12 month period.
Taking Leave under CFRA and FMLA concurrently
Both leaves allow for the employee to take an unpaid leave after the birth, adoption, or foster care placement of a child into the home. Both laws provide leave time for the employee in the case of their own serious health condition or to care for a family member with a serious health condition. The definitions for a serious health condition are similar between the law.
- Birth of a new child (must be taken within the first 12 months of the child’s birth)
- Placement through adoption or foster care (must occur in first 12 months of placement)
- Employee’s own serious health condition (not pregnancy related)
- To care for a Family member with a serious Health Condition.
In these cases, both the California Family Rights Act and Federal FMLA would run concurrently for the employee. It is vital however, that employers inform employees at the beginning of their leave that both types of leaves apply to the situation. If the employer doesn’t know the purpose of the leave until the employee returns to work, then the employer must immediately inform the employee that FMLA leave was used upon the conclusion of the leave. FMLA leave cannot be applied retroactively.
Definition of a Serious Health Condition
A serious health condition is any health condition, illness, or injury that requires in patient care at a health care facility, continuous care by a health care provider, or any period of incapacity where treatment may not be effective, such as stroke, Alzheimer’s, etc
- Any period that involves in care treatment, including at a hospital, hospice, or residential care facility
- A period of at least 3 or more days requiring absence from work, school, or other regular activities and also requires the continuing care of a health care physician.
- Any period of incapacity involving pregnancy or for prenatal care
- Any period of incapacity due to a chronic health condition including conditions such as asthma, diabetes, epilepsy or other conditions.
- Permanent or long-term conditions for which treatment may not be effective such as alzheimer’s, stroke, terminal diseases
- Any absences to receive multiple treatments or to recover from the treatments for conditions that would result in more than 3 days absences if the condition was left untreated. This includes chemotherapy, physical therapy, dialysis and other types of treatments.
Family Member Relationships Allowed Under CFRA
California’s Family Rights Act allows an employee to take leave for additional family members than FMLA provides. Family members provided include children, parents, and spouse. Unlike FMLA, CFRA allows employees to take time as well for domestic partners, and parents-in-law.
- Domestic Partner (not FMLA qualified)
- Parent-in-law (not FMLA qualified)
Differences between CFRA and FMLA: When Leave is NOT Concurrent
There are several times when an employee would take FMLA or CFRA and the leave would not run concurrently, but would only use either FMLA or CFRA.
First FMLA provides leave for pregnancy related disabilities, while CFRA does not. An employee taking leave for pregnancy related disabilities could take California’s Pregnancy Disability Leave and FMLA concurrently, but would not take CFRA and FMLA concurrently.
Second, if an employee takes time off to care for a parent-in-law, a domestic partner, or a child of a domestic partner under California’s Family Leave Act, they would be awarded 12 weeks. However, FMLA does not recognize those family relationships and so the employee would still have an additional 12 weeks of protected leave for use with another qualifying situation.
Third, FMLA allows employees to take time off if a spouse or a child is called into active duty with the armed services. CFRA does not allow for this provision. However, the California Military Spouse Leave provides up to 10 days of protected leave when a spouse is deployed to active duty in an area of conflict. The California Military Spouse Leave can run concurrently with FMLA. However, the employee would still have CFRA time available to them for other uses.
Fourth, FMLA allows up to 26 weeks per 12 months to care for a service member who is injured. The employee must be the next of kin or a spouse, child or parent of the service member. CFRA does not provide this time so an employee who uses 26 week for this purpose would still have a full 12 weeks available through CFRA.
Key Differences between the Family Rights Act and Family Medical Leave Act
There are some other key differences that employers should be aware of between the two acts. First, while both acts allow for employer certification of a “serious health condition,” the information that is allowed to be requested by the employer is different.
FMLA allows for the employer to ask for a diagnosis, but CFRA does not. It is vital that the human resource employee responsible understand which leave or both being taken and have the right forms filled out. Using the FMLA medical certification form for CFRA will cause the employer to violate CFRA. It is vital that employers use the Fair Employment and Housing Certification of Health Care for CFRA leave.
Second, FMLA only allows an intermittent or reduced work schedule if the employer agrees to it, while CFRA requires that employers provide an intermittent or reduced work schedule if the employee requests it.
Third, FMLA allows employers to require a second or third medical opinion regarding a serious health condition, but CFRA does not allow more than one certification.
Pregnancy Disability Leave
In addition to CFRA, California also offers a Pregnancy Disability Leave and has programs to supplement employee’s income when they take leave to care for a family member or bond with a new child. This article will cover both the Pregnancy Disability leave and how it corresponds with FMLA as well as cover the type of paid options available while employees are on leave.
California’s New Parental Leave Act
In January 1, 2018, California Parental Leave Act expands leave coverage for employees of a mid-sized business. Employers who have between 20 and 49 employees within a 75 mile radius will be required to provide up to 12 weeks of protected leave to employees who are new parents. The leave coverage birth, adoption and foster care placement.
Parents can take leave within the first 12 months after the child enters the home.
Let SwipeClock Help
Businesses in California have to abide by many leave laws, both local and statewide. These employers have to monitor sick leave accrual, ensure compliance and tracking of the appropriate leave laws, and depending on their location, have to comply with secure scheduling laws.
Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Medical Leave Act, Affordable Care Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.
Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according to the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
Written by Annemaria Duran. Last updated on November 20, 2018