Family Medical Leave Act or FMLA is a federal law that provides eligible employees with unpaid, job-protected leave for specific, qualifying family and medical reasons. If you meet the eligibility requirements, you may take up to 12 workweeks of unpaid, job-protected leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave.
California law provides that certain employers must provide leave under the Family and Medical Leave Act to employees who have worked with the company for more than a year for the birth or adoption of a child or when the employee, a spouse, or close family relative suffers from a serious health condition.
California Family Rights Act or CFRA is a state law that provides eligible employees with unpaid, job-protected leave for specific, qualifying family and medical reasons. Eligible employees may take up to 12 workweeks of leave per calendar year.
Depending on the type of leave an employee requests, CFRA leave may run concurrently with FMLA.
Any employer subject to the Family Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA) laws are required to grant the requested leave. It would be an unlawful employment practice for an employer to refuse to hire or to discharge, fine, suspend, expel or discriminate against any individual because of an individual's exercise of the right to family care and medical leave.
California Government Code Section 12945.2 establishes the rights and obligations of employers and employees relating to medical leave. When these obligations are not honored, employees may file discrimination lawsuits against their employers.
How Does FMLA Work?
Employees who are eligible to take leave under FMLA are entitled to receive about 60% to 70% of their wages for up to eight weeks with a maximum weekly benefit in 2023 is $1,620 in California. Benefits are about 60% of an employee's salary for higher income earners and 70% for those who earn lower incomes.
You can calculate your paid family leave benefit amounts by visiting California's Employment Development Department website where you will also find a step-by-step guide for how to file a claim. A claim form that has been properly completed typically takes two weeks for processing. You can take the benefits all at once or split it over a 12-month period. Your employer may also allow you to take vacation time, sick leave and other paid time off to supplement your family leave benefits and receive up to 100% of your pay.
Eligibility for FMLA Leave
California employers must comply with the Family Medical Leave Act if they have at least 50 employees for at least 20 weeks in the current or previous year. Employees are eligible for FMLA leave if:
- They have worked for the company for at least a year
- They worked at least 1,250 hours during the previous year, and
- They work at a location with at least 50 employees within a 75-mile radius
FMLA leave is available when employees want to take time off to:
- Bond with a new child (including adopted or foster children)
- Recuperate from a serious health condition
- Care for a spouse, child or parent who is suffering from a serious health condition
- Care for a family member who has suffered a serious injury during active military duty
- Handle qualifying emergencies arising from a family member's military service
Employees in California may take up to 12 weeks of leave within a 12-month period for any eligible conditions. This leave renews every 12 months, as long as employees meet the above eligibility requirements. There are, however, a few exceptions. For example, employees who need military caregiver leave may take up to 26 weeks of leave in a single 12-month period. However, this leave is given on a case-by-case basis. Unless the same family member is injured again, or another family member suffers an injury while on active military duty, an employee is not allowed to take additional leave for this purpose.
Eligibility for CFRA Leave
CFRA is essentially the state's version of the FMLA. CFRA applies to smaller employers and covers more family members compared to the FMLA. Employees are eligible for CFRA if they have more than 12 months of service and at least 1,250 hours of service in the 12 months prior. Under the CFRA, employers with five or more workers must provide eligible employees with up to 12 weeks of unpaid, job-protected leave over a 12-month period for certain qualifying reasons including:
- The employee's serious health condition, not including pregnancy or childbirth-related issues
- An employee's need to care for a child, parent or spouse, including a registered domestic partner, or other family member with a serious health condition
- An employee's wish to bond with a new child within 12 months of birth, adoption or foster care placement
- Military exigency leave for reasons including getting deployed on short notice
Under the CFRA, a "serious health condition" means an illness, injury, impairment or physical/mental health condition that requires in-home care or in-patient care in a hospital, hospice or resident medical care facility, and ongoing treatment by a physician or health care practitioner.
Examples of FMLA and CFRA Violations
Here are some of the most common violations of FMLA and CFRA laws that our employment attorneys commonly deal with:
- Firing or laying off an employee who takes leave because of a serious health condition and is unable to come back to work when the employer desires
- Demoting or cutting salary of an employee when they get back to work following maternity leave
- Firing or laying off an employee who files a complaint about a prior FMLA or CFRA violation
- Not granting FMLA or CFRA leave to eligible employees
Termination and Discrimination Upon Return to Work
When you take medical leave, the law requires your employer to keep your job or an equivalent job open for you. They cannot give you a job posting for which you are not trained or qualified. They also cannot fire you or lay you off when you return unless they would have done so, had you not taken medical leave. While your boss can fire you when you are on maternity leave, they cannot fire you because you are on maternity leave.
An employer may also fire an employee who is on medical leave if a complaint or issue arises that may be related to work completed before they went on leave. If the issue or complaint is grounds for termination, an employer may hear the employee's side of the story after which they could make a decision to terminate the employee.
Employees have certain protections from getting fired while they are on medical leave. Your employer cannot fire you just because you are in medical leave or when you return while keeping the rest of your department calling it a necessary layoff. They also cannot force you to take a position for which you are unqualified simply because they brought in someone else to fill your spot while you were on medical leave. These are all examples of retaliation and wrongful termination based on medical leave.
It is also against the law for employers to discriminate against employees after they return from medical leave. Examples of discrimination may include adversarial employment action such as reassignment to a lower or worse position, demotion, reduction in pay, being passed up for promotion, getting a poor performance review and getting terminated.
Filing an FMLA or CFRA Lawsuit
If you returned from medical leave and were discriminated against, mistreated or fired soon after, you may have a claim for wrongful termination or retaliation. Under FMLA, you may file your lawsuit within two years of the violation. If you believe your employer willfully violated the law while terminating your position, you may have up to three years to file the lawsuit.
If you are the victim of discrimination or wrongful termination because you took family or medical leave, you have the right to seek compensation. You may request damages including lost wages, legal costs and fees as well as monetary damages for pain and suffering and emotional distress. The experienced Los Angeles employment attorneys at Kingsley & Kingsley Lawyers can help you seek justice and fair compensation for your losses. Call us for a free consultation and case evaluation.
Frequently Asked FMLA Questions
Q: Which employers have to provide family medical leave?
A: Employers with more than 50 employees working within a 75-mile radius.
Q: Which employees are entitled to Family and Medical Leave Act?
A: To be entitled to medical leave, an employee must have worked for the previous 12 months and have worked a minimum of 1,250 hours in that year.
Q: For what reasons can medical leave be used?
A: A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave in a 12-month period for one or more of the following reasons:
- For the birth and care for a newborn child;
- For the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
- To care for an immediate family member (spouse, child, or parent - but not a parent "in-law") with a serious health condition;
- When the employee is unable to work because of a serious health condition;
- When qualifying exigencies arise out of a family member's military deployment; or
- When a family member's serious injury or illness arises from military service.
Q: What is a serious health condition under the law?
A: A "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves:
- Any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
- A period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
- Any period of incapacity due to pregnancy, or for prenatal care; or
- Any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
- A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or,
- Any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).
Q: What information must the employee provide to the employer?
A: An employee seeking FMLA leave should provide:
- Reasonable advance notice if the leave is foreseeable.
- Documentation from his/her physician as to the medical condition and expected duration of the leave.
- An estimate of the time off and return date.
- The employee should try and schedule treatment to avoid disruption to the employer's business if the need for treatment or leave is foreseeable.
Q: What is an employer's obligation under the Family and Medical Leave Act?
A: Under FMLA, a covered employer is obligated to:
- Provide up to a total of 12 weeks of unpaid leave.
- Maintain an employee's health benefits during the leave.
- Maintain the seniority of the employee and count the leave time just as if the employee continued to be at work for purposes of a seniority system.
- Return the employee to the same or a similar position (with similar responsibilities, pay, and opportunities for advancement).
Q: What actions by an employer may be unlawful according to the Family and Medical Leave Act?
A: An FMLA violation occurs if your employer:
- Refuses to allow you time off for FMLA purposes; or
- Fails to pay for health insurance during an FMLA leave; or
- Orders you to report for light duty during an FMLA leave; or
- Fails to restore you to your former position or to an equivalent position after an FMLA leave; or
- Uses coercion, threats, or intimidation to discourage you from taking FMLA leave; or
- Discharges, disciplines, or demotes you because of FMLA absences; or
- Discriminates against you for opposing any practice, or because of involvement in any proceeding, related to FMLA; or
- Gives you a poor evaluation or denies you a promotion because of FMLA absences; or
- Punishes you for complaining about FMLA violations, telling others about the FMLA, or taking legal action to enforce the FMLA; or
- Denies you any rights provided by the FMLA or the DOL's implementing regulations; or
- Uses the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; or
- Counts FMLA leave under "no-fault" attendance policies.
Q: What should you do if your rights have been denied?
A: Many companies require that you follow certain procedures in reporting unlawful treatment, such as the denial of your rights and/or retaliation for requesting leave. Make sure you are recording each "incident" and report the situation to the company in an official manner. In most cases, it is best to have your case evaluated by a labor and employment lawyer as soon as the alleged violation occurred since failure to follow the appropriate procedures may lead to a denial of your legal right to recover certain damages like punitive damages.
Reach Out to Our Los Angeles Firm Concerning Your FMLA Concerns
If you were denied your job back after taking leave, or were denied your right to family medical leave, or suffered retaliation or harassment because you took leave, you may have a case in California for wrongful termination or violation of your right to CFRA or FMLA leave . If you've experienced any of the actions above, take the first step to protect yourself and stopping this hurtful and illegal behavior. Seriously consider using an employment law attorney to help obtain the compensation you deserve.