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Leave Rights in California: Part 2 (2018)

California leave rightsGetting 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).

Has FMLA/CFRA been good for the workplace?

Ever since FMLA went into effect in 1993, it has been a success. A U.S. Department of Labor report issued in June 2007 found employee reactions to FMLA to be uniformly positive. The report referenced a 2000 Westat Report which had found that “89% of employers reported that the FMLA has had either a positive or neutral effect on employee morale”. Numerous employees also commented that FMLA encouraged a “greater sense of loyalty to their employer”.

Nevertheless, some argue that FMLA/CFRA does not go far enough. I have already posted about how U.S. leave policies continue to lag far behind those of other countries around the world. See “U.S. FMLA/CFRA Leave Lags Far Behind Rest of World”. The AFL-CIO also cites a national survey conducted by the National Opinion Research Center of the University of Chicago which found:

  1. the U.S. ranks at the bottom of 21 high-income nations in providing parental leave for workers
  2. 1 in 6 workers were fired, disciplined or threatened by their employer for taking time off for illness or to care for a sick family member
  3. Nearly 50 percent of private-sector workers and 76 percent of low-income workers have no paid sick days

It isn’t hard to understand why better leave policies would be better for everyone. According to Deborah Leff, president of the Public Welfare Foundation, paid sick leave is not only good workplace policy, but “good public health.”

The lack of paid sick days has real consequences for Americans forced to choose between losing a day’s pay or going to work sick. It’s difficult for employees to be productive when they are not well. They also expose co-workers and customers to illnesses.
“Sick and Fired: U.S. Workers Struggle Without Paid Sick, Parental Leave”

Employers complain that leave policies can be difficult to administer and that leave abuse is rampant.

Marc Freedman, director of labor law policy for U.S. Chamber of Commerce, had this to say:

It’s just too confusing and too vague. Right now, the system is such that it allows an employee who wishes to, to game the system.
“Do employees abuse the Family and Medical Leave Act?”

But employers should be asking themselves, is it really in their interests to have sick employees or employees with sick family members reporting to work for fear of losing pay or their jobs? Because the data suggests that that is exactly what is happening. The Institute for Women’s Policy Research conducted a study that concluded improved medical leave laws could save the U.S. economy $8.1 billion a year by preventing lost productivity due to sick workers, the spread of illness to co-workers and customers and worker turnover.

Besides, a suspicious employer can always ask the employee to undergo a second examination in order to get a second opinion whether medical leave is really justified. It is difficult to understand why more employers don’t take advantage of this little-used regulation.

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.


  1. HARRY JHUN EDQUID on April 17, 2018 at 5:58 am

    I was hired and work in the company last Jan.16,2017 Enersys Union City….with estimated of 20 employee 5 in Reserve Power Dept. and 15 in Motive Power.And then last Aug. 01 I called and sick bcoz my right metatarsal joint was swollen and painful.I went in the doctor to have a checked up and he send me to get X-ray and MRI of my foot.And then when the doctor got the result he recommend for a surgery.I informed my work admin I wasn’t able to go back to work bcoz I have a surgery on Aug.25 for implant fission of my metatarsal joint.That time I have 28hrs left on my vacation and I’m not qualified to take FMLA bcoz I need to work in the company in one year.And then they told me a Short Term Disability….I apply and they approved my STD from Aug.01,207 to Jan.29,2018.I informed HR about my returning to work and I was cleared by the doctor.The doctor gave them also a note that im going back to work on Jan.30 with restriction not to lift more than 10lbs in one month from the date of my first day in the job bcoz I have implant plate in my right metatarsal joint.After that HR answer my email and she said she talk my manager and supervisor and we won’t let you to go back to work for now bcoz I have restriction.On your job description as field service technician is you need to lift up to 50lbs on daily basis.After that HR send me a letter and I received it Feb.02,2018 HR said after the time frame of your unpaid vacation from Aug.01 to Jan.29 you supposed to go back to work Jan.30.Your doctor approved you restriction for one month and the company are not giving you a accommodation in your restriction or give you a additional leave.As a result the company ending your employment effective Feb.01,2018.
    May I know if it is legal to terminated me for my one month restriction given by my doctor? It’s that legal to talk on their own language and laugh at me.Its that right to called me DAMN ASS….YOU DONT KNOW SHIT… front of the customer? Texting me WHATS UP BEACH Then I’m using the company tools the son of the manager told me if break that tools “I WILL KILL YOU” the manager and supervisor was there when he told me that.I report that in the supervisor but he didn’t make a report bcoz they are the same nationality.I suffered a lot of things to those people it’s really hard to forget they treat me like shit


    • Eugene Lee on April 18, 2018 at 9:11 pm

      It sounds like you need to consult 1) possibly a workers compensation lawyer if your injury was work-related and 2) a disability discrimination lawyer. Having two or more lawyers working on your case is not unusual, just make sure your lawyers know about each other so that they don’t step on each other’s toes.

      • HARRY JHUN EDQUID on April 19, 2018 at 8:44 am

        Actually on my case it’s not work related injury….when the time my right metatarsal joint was swollen and painful.When i went in the doctor it found out that the cartilage if my right metatarsal joint it’s totaly gone.

  2. Brian folena on June 9, 2017 at 6:43 pm

    I went on temporary disability to find out what’s wrong with my knee and get it fixed. I was in communication with my boss the whole time I was off and he definitely wanted me back. When I was cleared by doctor to go back to work my boss said I had been laid off by the shop a long time ago. I then found out that they actually laid me off about 1 week after I went on temp disability. I did not hurt my knee at this company but can they do that?

  3. Millicent Dennise Thornton Wof on October 25, 2016 at 9:22 pm

    I took an Educational Leave of Absence to help further my education. I was gone from February 29, 2016 to April 29, 2016. I returned to my job May 2, 2016. I already knew that I would not be paid that week. but when I check my account I had been paid.(I did not request any hours) So I thought nice. But a few days later I was called by someone from HR and told me I was paid accidentally and that I needed to give the check back or loose my vacation hours until the full 80 hours were repaid. Now I am in the negative for my vacation. I feel this was unfair. Is there anything that can been done in my case?

  4. Debra Lorraine Lopez on November 8, 2015 at 10:56 pm

    i took fml to care for my mom 75years old with a broken pelvicbone. i took leave 7-8-15 returned 8-19-15. i was at wiled the day of return. I was a key employee and was making salary of about 4,000 month. the way i was let go was at a meeting and was told that he had sold part of the company to another Service master. and he couldnt afford to keep me. however here came the new buyer who offered me a job, at 15 hour and no company car i would be using my own phone for buissness and it was a nightmare. the sale wasnt complete yet and didnt go through untill over two months. come to find out i had been apart of this deal months ago. It was so wrong that i didnt get a notice or a chance to prepare myself for this big finacial nightmare i have many more issues but to many to list. does anyone know if ive been fired wrongfully as i was on leave until the 1rst of september but was returning two weeks early. my at will stated transfer however my status of pay was taken and i also hadto quit due to the so many policy issues that the new owner didnt want to enforce hes running it so un safe and not at all to the service master policies

  5. Bizinl on August 21, 2015 at 7:23 pm

    My employer, reduced my annual salary by over $13,000 when I returned to work after being off work

  6. rowena on May 19, 2015 at 6:08 pm

    i requested for a vacation 5 days come this July and was turned down as they said they cant find anyone to work for me and besides they think its going to be the busiest month at work, im a nurse in a outpatient dept. Is this right?

    • Eugene Lee on May 30, 2015 at 12:37 am

      That can’t be answered without more information. The labor code does not require employers to give employee vacation time. However, many employers decide to provide vacations as a way of attracting and keeping loyal employees. Ultimately, you would need to consult your employer’s vacation policy and see what it say. The policy is generally treated as a “contract” between the employer and employee. If the employer isn’t following its own vacation policies, you may have a claim for breach of contract among other things. It would be best if you were to consult with an attorney on this. Most attorneys give free initial consultations. Good luck with your claim.

  7. erica on December 12, 2014 at 12:37 pm

    I thru up twice at work i asked to leave home early the lead got upset because she thought she would be short she then yelled n embarrass me on the floor with my co workers wrote me up and said i needed to provide a drs note for leaving early

  8. Injury Attorney Los Angeles on September 9, 2010 at 7:14 am

    The Family and Medical Leave Act and the analogous California Family Rights Act are helping a lot of us to keep our jobs when we get sick. Our companies shouldn’t remove these privileges from us.

    • caro on August 18, 2012 at 1:31 pm

      so your saying that if we ask for the day off because were sick we can not be denied?

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