California FMLA and CFRA Attorney

The FMLA is a federal law that provides eligible employees of covered employers with up to 12 workweeks of unpaid, job-protected leave during a designated 12-month period for qualifying family and medical reasons. It also generally requires continuation of group health insurance under the same conditions that would have applied if the employee had continued working.

The CFRA is California’s family and medical leave law. Like the FMLA, it provides eligible employees with up to 12 workweeks of protected leave in a 12-month period. However, the CFRA applies to California employers with five or more employees and covers a broader range of family relationships than the federal law.

Depending on the employer, the reason for leave, and the employee’s eligibility, FMLA and CFRA leave may run at the same time. In other circumstances, California pregnancy disability leave or disability accommodation laws may provide additional protections.

To qualify for FMLA leave, an employee generally must:

• Work for a covered employer
• Have worked for that employer for at least 12 months
• Have completed at least 1,250 hours of service during the 12 months immediately before the leave begins
• Work at a location where the employer has at least 50 employees within 75 miles

Private employers are generally covered by the FMLA if they employed at least 50 employees during 20 or more workweeks in the current or previous calendar year.

Public agencies and public or private elementary and secondary schools are covered regardless of their number of employees, although an individual employee must still satisfy the applicable eligibility requirements.

The 12 months of employment generally do not have to be consecutive, although special rules may apply after longer breaks in service. Only hours actually worked usually count toward the 1,250-hour requirement; paid vacation, sick leave, and other time off generally do not count as hours worked.

The CFRA applies to California employers with five or more employees.

An employee generally qualifies for CFRA leave when the employee:

• Has worked for the employer for more than 12 months
• Has completed at least 1,250 hours of service during the previous 12-month period
• Needs leave for a reason covered by the CFRA

Unlike the FMLA, CFRA eligibility does not require the employee to work at a location where 50 employees are employed within 75 miles. This means some California employees who are not eligible for federal FMLA leave may still qualify for CFRA leave.

Eligible employees may be entitled to protected leave for several family and medical reasons.

Leave for Your Own Serious Health Condition

FMLA and CFRA leave may be available when an employee has a serious health condition that makes the employee unable to perform the essential functions of the job.

A serious health condition may involve inpatient treatment, continuing treatment by a health care provider, incapacity lasting for a qualifying period, chronic conditions, or other circumstances covered by the applicable law.
Protected leave may apply to qualifying physical or mental health conditions.

Pregnancy, childbirth, and related medical conditions are treated differently under California law. Leave for pregnancy-related disability is generally covered by California’s Pregnancy Disability Leave law rather than the employee’s CFRA entitlement for their own serious health condition.

Caring for a Family Member With a Serious Health Condition

FMLA leave may be available to care for a spouse, child, or parent with a serious health condition.

CFRA leave covers a broader group of family members, including a:

• Child
• Parent
• Grandparent
• Grandchild
• Sibling
• Spouse
• Registered domestic partner
• Designated person

Under the CFRA, a designated person is an individual related by blood or whose association with the employee is the equivalent of a family relationship. An employer may limit an employee to one designated person during a 12-month leave period.

Bonding With a New Child

Eligible employees may use FMLA or CFRA leave following:

• The birth of a child
• The placement of a child for adoption
• The placement of a child for foster care

CFRA baby-bonding leave may be available after an employee completes pregnancy disability leave, provided the employee independently meets the CFRA eligibility requirements.

Military Family Leave

The FMLA may provide leave for certain qualifying circumstances related to a family member’s military deployment. It may also provide up to 26 workweeks of military caregiver leave during a single 12-month period to care for a qualifying current servicemember or recent veteran with a serious injury or illness.

The CFRA also covers leave for a qualifying exigency related to the covered active duty of an employee’s spouse, domestic partner, child, or parent.

A serious health condition is more than an ordinary short-term illness in many circumstances, but it does not necessarily require a life-threatening diagnosis.

Depending on the facts, a condition may qualify when it involves:

• An overnight stay in a hospital or other qualifying care facility
• A period of incapacity requiring continuing treatment by a health care provider
• A chronic condition requiring periodic medical visits
• Pregnancy-related incapacity under the FMLA
• Certain permanent or long-term conditions
• Multiple treatments for a condition that would likely result in incapacity without treatment
• A qualifying mental health condition

Eligibility depends on the medical circumstances and the requirements of the law, not merely the name of the diagnosis.

An employer may request medical certification supporting the need for leave, but employees generally do not have to disclose their complete medical histories. Under the FMLA, an employee does not necessarily have to tell the employer the specific diagnosis as long as enough information is provided to establish that the leave may qualify.

An employee does not necessarily have to use the words “FMLA,” “CFRA,” or “protected leave” the first time leave is requested.

The employee must give the employer enough information to understand that the absence may involve a qualifying family or medical reason. For example, telling an employer that a family member has been hospitalized or that the employee will be unable to work because of a condition requiring ongoing medical treatment may provide sufficient notice. Simply saying that someone is “sick,” without additional information, may not be enough.

When the need for leave is foreseeable, employees should generally provide at least 30 days’ notice when practical. When 30 days’ notice is not possible, or the need is unexpected, notice should be given as soon as reasonably practical under the circumstances. Employees generally must also comply with the employer’s usual call-in and leave-request procedures unless unusual circumstances prevent them from doing so.

Protected leave does not always have to be taken in one continuous block.

When medically necessary, FMLA leave may be taken intermittently or through a reduced work schedule. This may apply when an employee needs periodic treatment, experiences unpredictable flare-ups of a chronic condition, or must care for a qualifying family member on an occasional basis.
Leave used for less than a full workweek is generally counted as a proportion of the employee’s normal workweek.

Intermittent or reduced-schedule leave may also be available under the CFRA, depending on the qualifying reason and circumstances.

Employers sometimes violate the law by treating intermittent absences as attendance violations, applying disciplinary points, or pressuring employees not to use approved leave.

Once an employer has enough information to understand that an absence may qualify under the FMLA, the employer has specific notice responsibilities.

Under the FMLA, the employer generally must:

• Notify the employee whether they are eligible for FMLA leave
• Provide a reason if the employee is not eligible
• Give written notice of the employee’s rights and responsibilities
• Explain whether medical certification will be required
• Notify the employee whether the leave is being designated as FMLA leave
• Explain how much leave will count against the employee’s available entitlement when that amount is known

The eligibility notice generally must be provided within five business days after the initial request or after the employer learns that the absence may qualify, absent extenuating circumstances.

Failure to provide required notices may interfere with an employee’s ability to exercise protected leave rights and may create liability when the employee suffers harm as a result.

During qualifying FMLA leave, an employer generally must maintain group health benefits under the same conditions that would have applied if the employee had continued working.

The employee may still be responsible for their normal share of premiums.
The CFRA similarly requires covered employers to maintain and pay for group health plan coverage during qualifying leave for up to 12 workweeks in a 12-month period, subject to the terms and limitations of the law.

An employer generally cannot cancel an employee’s health insurance merely because the employee used protected leave.

FMLA and CFRA protections include more than the right to be absent from work. Eligible employees are generally entitled to return to the same position or a position that is virtually identical or comparable in pay, benefits, duties, working conditions, location, and status.

Potential violations may include:

• Refusing to allow an employee to return after approved leave
• Giving the employee a lower-paying position
• Significantly reducing responsibilities or authority
• Assigning a less desirable schedule or work location
• Eliminating benefits or seniority earned before leave
• Requiring the employee to reapply for the job
• Claiming that the position was filled during leave
• Reinstating the employee briefly and terminating them soon afterward

Job restoration rights are not absolute in every situation. For example, an employee is not necessarily protected from an employment action that would have occurred for legitimate reasons unrelated to leave. However, an employer cannot use leave as a negative factor or disguise a leave-related termination as an unrelated business decision.

Interference occurs when an employer prevents, discourages, restrains, or denies an employee’s lawful exercise of protected leave rights.

Examples may include:

• Refusing to provide leave to an eligible employee
• Telling an employee not to request leave
• Counting protected absences under an attendance policy
• Requiring an employee to work while on leave
• Failing to recognize a potentially qualifying leave request
• Providing misleading information about eligibility
• Improperly delaying approval
• Failing to provide required notices
• Pressuring an employee to return before leave ends
• Denying intermittent leave when it is medically necessary
• Failing to restore the employee after leave

Both the FMLA and CFRA prohibit employers from interfering with protected leave rights.

An employer cannot lawfully punish an employee for requesting or using protected leave, providing information about leave rights, supporting another employee’s request, or participating in an investigation or proceeding.

Potential retaliation may include:

• Termination
• Demotion
• Reduced hours
• Unfavorable schedule or location changes
• Loss of responsibilities
• Increased scrutiny
• Unjustified disciplinary action
• Negative performance reviews
• Exclusion from meetings or advancement opportunities
• Hostile treatment intended to make the employee resign

Retaliation may begin immediately after a leave request, during leave, or after the employee returns.

Suspicious timing alone does not prove retaliation, but it can be significant when combined with strong performance history, changing explanations, negative comments about leave, inconsistent treatment, or departures from normal company procedures.

Being on protected leave does not create immunity from every legitimate employment decision. An employer may still take action for reasons entirely unrelated to leave, such as a genuine companywide layoff or misconduct that would have resulted in termination regardless of the absence.

However, an employer cannot fire an employee because the employee requested leave, used leave, needed additional protected time, or was expected to return from leave.

Warning signs of a potentially unlawful termination may include:

• The employee had strong evaluations before requesting leave
• The employer complained about the burden caused by the absence
• Discipline began shortly after the leave request
• The employer changed its explanation for the termination
• Company policies were applied differently to employees who did not take leave
• The employee’s position remained available but was given to someone else
• The employer claimed the position was eliminated but soon hired a replacement
• The employee was terminated immediately before or after returning

The end of FMLA or CFRA leave does not always end an employer’s obligations.

An employee with a qualifying physical or mental disability may be entitled to additional unpaid leave as a reasonable accommodation under California disability discrimination law or the federal Americans with Disabilities Act. The employer may also have a duty to engage in a timely, good-faith interactive process to determine whether additional leave or another accommodation would allow the employee to return to work. Whether extended leave is reasonable depends on the circumstances. Indefinite leave may not be required, but a finite extension supported by medical information may be protected.

Employers should not automatically terminate employees merely because their FMLA or CFRA entitlement has expired without considering whether other laws apply.

California employees disabled by pregnancy, childbirth, or a related medical condition may be entitled to up to four months of Pregnancy Disability Leave when they work for an employer with five or more employees. This entitlement is based on the employee’s period of actual disability.

Pregnancy Disability Leave may run concurrently with FMLA leave when the employee is eligible for both. It generally does not reduce the employee’s separate CFRA entitlement because CFRA leave for an employee’s own serious health condition excludes disability related to pregnancy, childbirth, or related medical conditions. An eligible employee may therefore be entitled to CFRA baby-bonding leave after pregnancy disability leave ends.

Family and medical leave claims often depend on communications, notices, medical documentation, attendance records, and the timing of the employer’s actions.

Consider taking these steps:

• Save leave requests, emails, text messages, medical certifications, and employer responses.
• Keep copies of eligibility, rights and responsibilities, and designation notices.
• Preserve performance reviews and disciplinary records from before and after the request.
• Document comments criticizing your leave or pressuring you to return.
• Keep records of benefit cancellations, schedule changes, demotions, or lost compensation.
• Write down the dates and details of conversations with supervisors or human resources.
• Review severance agreements, releases, and resignation documents before signing.
• Contact an employment attorney promptly because legal deadlines may apply.

Do not take confidential or proprietary materials that you are not legally permitted to possess.

Available remedies depend on whether the claim arises under the FMLA, CFRA, another California law, or a combination of laws.

In an FMLA case, potential remedies may include:

• Lost wages
• Lost employment benefits
• Other actual financial losses caused by the violation
• Liquidated damages when available
• Reinstatement
• Promotion
• Other appropriate equitable relief
• Attorney’s fees and litigation costs when authorized

The U.S. Department of Labor identifies compensation for lost wages and benefits, other actual monetary losses, liquidated damages, reinstatement, promotion, and other equitable relief among the potential consequences of FMLA violations.

CFRA and related California employment claims may allow additional remedies depending on the facts and legal theories involved, including back pay, front pay, emotional distress damages, punitive damages when legally available, reinstatement, attorney’s fees, and other appropriate relief.

No attorney can guarantee a specific recovery. The outcome depends on the evidence, applicable law, financial harm, and circumstances of the case.

FMLA and CFRA cases can be complicated because federal and California leave laws may overlap with pregnancy disability protections, disability accommodation requirements, paid leave policies, workers’ compensation, and employer-specific benefits.

The Kaufman Law Firm may assist by:

• Determining whether the employer and employee were covered
• Identifying which federal and California leave laws applied
• Reviewing leave requests, certifications, and employer notices
• Calculating whether leave was tracked correctly
• Evaluating denial, interference, and reinstatement issues
• Investigating retaliation or wrongful termination
• Assessing whether additional leave should have been considered as an accommodation
• Reviewing severance agreements and releases
• Pursuing available relief through negotiation, administrative proceedings, or litigation

We examine the full sequence of events rather than treating each leave, discipline, or termination decision in isolation.

The Kaufman Law Firm has protected California employees since 1993. Attorney Matthew A. Kaufman brings decades of experience to matters involving family and medical leave, disability rights, retaliation, discrimination, and wrongful termination.

Clients turn to our firm for:

• Personalized attention from an experienced employment attorney
• Careful analysis of overlapping California and federal leave laws
• Thorough review of employment and medical-leave documentation
• Clear communication about legal rights and available options
• More than $50 million recovered for clients
• Free initial case evaluations