CALL (213) 992-3299
Follow us on social media

Leave Rights in California: Part 1

Leave Rights in CaliforniaGetting hurt or sick is no fun, but what’s worse is worrying that you’ll lose your job if you take time off to recover. That’s why employee medical leaves are protected under both the federal Family and Medical Leave Act (FMLA) and the analogous California Family Rights Act (CFRA).

Am I eligible?

Unfortunately, FMLA/CFRA does not protect all workers, only those who have:

  • worked at least one year for their employer,
  • have worked at least 1,250 hours in the past year, and
  • whose employer has at least 50 employees working within 75 miles of the employee’s worksite.

According to U.S. Department of Labor June 2007 report, the eligibility requirements for FMLA/CFRA means that only 76.1 million workers out of 141.7 million total U.S. workers, or 53%, are eligible for FMLA protection (the other 47% have to rely on their employer’s leave policies).

How much medical leave is allowed under FMLA/CFRA?

Under FMLA/CFRA, employees are entitled to take a maximum of 12 weeks of unpaid medical leave to care for a newborn, newly adopted child, seriously ill family member or for their own serious illness (under FMLA but not CFRA, this includes incapacity due to pregnancy, childbirth or related medical conditions). You may be entitled to an extension of leave past the 12 week maximum if you have a mental or physical disability that requires a leave extension as an accommodation of that disability (this assumes the employer is aware or has been informed of your disability and/or associated work restrictions). It is illegal for an employer to treat you differently or punish you for taking medical leave. You also have a right to be reinstated to your position upon return from your medical leave unless you are a “key employee”.

Is the leave paid or unpaid?

FMLA/CFRA (and PDLL) leaves are unpaid. According to the AFL-CIO, the lack of paid leave ”presents a significant obstacle for those who cannot afford to take FMLA leave”. This claim is backed up by a 2000 Westat Report which found that the most commonly noted reason for not taking leave was inability to afford it.

Of course, if you’re lucky, your employer will choose to pay you during such leaves, or apply your paid sick leave/vacation time to your medical leave.

What if I’m pregnant?

If you are incapacitated due to pregnancy, childbirth or related medical conditions, you may qualify for 4 months of leave under the California Pregnancy Disability Leave Law (PDLL). You can then take an additional 12 weeks of CFRA (but not FMLA) leave “for reason of the birth of her child, if the child has been born by this date” and assuming you have enough time left in your CFRA bank. 2 Cal. Code of Regs. § 7291.13(c).

Note, the above eligibility requirements for FMLA/CFRA do not apply to PDLL. To qualify for PDLL, you need only work for an employer who has 5 or more employees.

Conclusion

In Part 2, I will discuss whether FMLA/CFRA has been good for the workplace and what further improvements can and should be made, if any.

If you believe your employer has interfered with or retaliated against your medical leave rights, contact a lawyer right away as strict filing deadlines may apply.

20 Comments

  1. Kia Silliman on February 26, 2017 at 11:35 pm

    I’ve been working for my job for 5 months now, and when flu season hits, it hits hard. I work in sports with children, so my chances of getting sick are even higher than most. I was not feeling my best one day, and started experiencing flu-like symptoms (chills, nausea). I threw up 3 times at work that day, was expected to stay through the remainder of my classes, and come in the next day even if my symptoms were the same or worse. If I chose to stay home and did not receive a dr’s note, but was experiencing the same symptoms they made me work through the day prior, are they justified for punishing me, or does that fall under an “unhealthy/unsafe work environment?

  2. Courtney Newton on December 23, 2016 at 3:59 pm

    Been working for my employer for 5+ years, I saw an orthopedic surgeon for my sciatic nerve, doctor wanted me on modified duties which my employer/hr/administrated would not accommodate me for so for 5 weeks I was forced to stay home unpaid while waiting for insurance approval in the end procedure was denied because surgeon didn’t accept my insurance took them 5 weeks to figure that out I had to surrender all my vacation time to pay roll working for a USD we as employees can not apply for/file claims for disability or unemployment. How can I re-coup those 5 weeks of lost wages and do I have a case and do I need a lawyer?

  3. Gina Grasso on November 18, 2016 at 3:25 pm

    OK, so I’ve been working for my employer since 2009. I was put on FMLA leave in Aug. of 2015. I hadn’t used it all up. My doctor put me on temporary disability in April of 2016. I am unable to return to work. I just recieved a letter from my employer stating that if I do not return to work in approx. 2 weeks, Dec. 1st, 2016. I am terminated. Can they legally do this?

  4. suethecollectors on September 12, 2016 at 2:42 am

    yes well described
    so you don’t have to worry about anything because you have leave rights

  5. Mrs. Ramirez on January 20, 2016 at 4:08 pm

    Great information!! My mom has worked for Walmart for 6 years & it seems they have every right to change their rules. No more sick pay, No more excused sick days not even with a doctors note, No more set availability if your availability isn’t open you will only get less than 35 hours if even that. There has to be something that can been down, they are horrible to their employees. They allow 25 year old Department Managers to constantly belittle her, place items on rack to fall on my mom deliberately & make her do their job, she has complaint but the sweep it under rug. This is just a little of what goes on to their associates under Walmart’s supervision. It’s unsafe, unhealthy & discriminating.

    • Eugene Lee on January 27, 2016 at 2:37 pm

      Walmart is notorious for treating its employees poorly. You might want to ask a lawyer about some of the things they’re doing. California has a new paid sick leave law that went into effect on 1/1/16, for instance.

  6. Steven Sweat on March 26, 2014 at 10:54 am

    Employers should ALWAYS keep in mind as well that, just because the employee has exhausted the allowed leave under FMLA/CFRA/PDLL, issues may still arise as to disability discrimination. If the medical condition prompting the leave is a known disability, engagement in the interactive process and reasonable accommodation are required.

  7. Luis on March 4, 2014 at 10:26 pm

    Indeed a very informative and useful post shared. Its really interesting to read the benefits CA provides at length.

  8. writeragtlawyers on October 22, 2013 at 10:56 pm

    Very informative post. Hope part 2 is equally interesting to read!

  9. Immigration Florida on September 12, 2013 at 11:05 pm

    Well written..Great deal of great information .Thanks for sharing..

  10. Branigan Robertson on January 27, 2013 at 6:57 pm

    Good article, Eugene.

  11. jukey on January 12, 2013 at 9:21 am

    To my understanding CA gives you all these wonderful benefits ( 4 months, CFRA) only if eligible if you have 5+employees as of 2012 (you are also entitled to a continuation of benefits/insurance under the new laws). Which brings me to my question. My employer is split between NYC and CA and we have a total of 8 employees (4 in NYC and 4 in LA), we are paid by an LP (Liimited Partnership) out of NY. I understand that CA law prevails in most cases. But would we be looked at as a company of 8 employees or only 4 in CA? I’m 7 months pregnant and would like to take advantage of this law, as my employer in NY is asking 6 weeks of me, which is unrealistic. Any advice?

  12. jobs in my area on March 21, 2012 at 5:50 am

    I didn’t know that employees are entitled to take a maximum of 12 weeks of unpaid medical leave to care for a newborn, newly adopted child, seriously ill family member or for their own serious illness.

  13. HR Services California on March 14, 2012 at 12:17 am

    I was very pleased to find this site.I wanted to thank you for this great read!! I definitely enjoying every little bit of it and I have you bookmarked to check out new stuff you post.
     

  14. Adam on February 26, 2012 at 9:25 pm

    Well written article.Your site is too good.Its full with information. I hadn’t thought of some of these Interesting piece. It can be difficult to find good blogs nowadays. 

  15. labor law posters on January 17, 2012 at 1:35 am

    Good. I think company should be good to their employees, they should use good labor law posters.

  16. gbnoteversions on November 19, 2011 at 6:21 pm

    Interesting that you can stack, so to speak, your federal and state benefits in California.

  17. Rodney Mesriani on April 13, 2011 at 6:57 pm

    This was a very comprehensive article, good job. I’d just like to add that while both the FMLA and CFRA leave benefits are indeed unpaid, some California employees, particularly pregnant women may avail of Paid Family Leave (PFL) benefits if they’re also covered by the State Disability Insurance aside from the job-protected benefits of the FMLA or the CFRA.

    http://www.mesrianilaw.com/

  18. hawaii vacation packages on April 2, 2011 at 3:23 am

    Really helpful info.You have cleared all my queries and doubt and I am looking forward to read the 2nd part of this topic..

  19. Georgia Lemon Law on December 10, 2010 at 4:03 am

    Good Info

Leave a Comment