Life is unpredictable no matter how much you try to control it, especially when dealing with health. Health in the workplace is important; it’s important enough that laws were written to protect workers’ who need to take time off due to medical reasons. The Family and Medical Leave Act (“FMLA”) protects the employee from getting fired when taking time off due to medical reasons. This webpage will explore these FMLA California topics:
- What is FMLA and What Events Does it Cover?
- Who is Eligible for FMLA?
- What is a Serious Medical Condition?
- Do You Still Get Paid During FMLA Leave?
- CFRA vs. FMLA
- What if You’re Denied the FMLA California Leave?
- Are There Any Reasons I Can Legally Be Denied FMLA Leave?
- Can You Lose Your Job if You Take FMLA Leave?
- Talk to an Employment Lawyer
What is FMLA and What Events Does It Cover?
The FMLA California was designed to help employees balance the demands of both parts of their lives, work and family. The act requires covered employers to give their employees a certain about of unpaid time off for covered family and medical reasons. The act allows employees to take:
- A total of 12 weeks off of work in a 12-month period for:
- The birth of a child
- Caring for a newborn child under 1-year old
- Caring for a newly fostered child or adopted child, within one year of placement
- Caring for a spouse, child or parent who has a serious health condition
- A serious health condition that makes an employee unable to work
- Taking care of things, when a military family member is on active duty
- A total of 26 work weeks during a 12-month period for:
- Caring for a spouse, son, daughter, parent, or next of kin (under your legal custody) who is a covered service member with an injury or illness
Although you may consider your in-laws as family, the FMLA California does not cover these people (i.e. You cannot take time off to care for your father-in-law).
Who is Eligible for FMLA California?
FMLA doesn’t cover everybody. There are certain qualifications that need to be met by both employer and employee.
The employer must:
- Be a private-sector employer who has 50 or more employees on payroll for at least 20 weeks in one calendar year (employees within 75 miles of the worksite are considered towards the 50 employee count.)
- Be a public agency, including local, state or Federal government agency. The number of employees in these agencies does not matter.
- Be a public or private elementary or secondary school. The number of employees at these schools also does not matter.
The employee must:
- Have worked for the same employer for 12 months and at least 1,250 hours before the time of leave (only actual time worked counts towards the hours, not holidays or sick leave.)
- Works for an eligible employer
- Works at a location where the employer has at least 50 employees within a 75-mile radius
These are the requirements, as written in the FMLA California but certain exceptions exist and state laws may have different requirements as well. California’s requirements follow those mentioned above. An employer may also request certain proof of serious illness before approving your request for FMLA leave (CFR § 825.300).
What is Considered a Serious Medical Condition?
A serious health condition refers to an illness, injury, impairment, or physical/mental condition that involves:
- A period of incapacity connected with inpatient care in a hospital, hospice, or residential care facility
- A period requiring absence from work, school or other routine daily activities for more than 3 days that also requires treatment by a health care provider
- Pregnancy or prenatal care
- A chronic, serious health condition like asthma, diabetes, or epilepsy
- Permanent or long-term incapacity due to untreatable conditions like Alzheimer’s, stroke, or terminal diseases
- Absences requiring multiple treatments, including recovery time totaling more than 3 consecutive days
To establish a serious health condition, the employee must have[1]:
- Visited a health care provider on 2 separate occasions & have more than 3 days absence due to incapacity.
- The 1st visit to the doctor to establish a serious medical condition must happen within 7 days of the incapacity along with treatment (like prescription medication)
- The 2 visits need to occur within a 30-day period from the start of incapacity
- The health care provider, not the employee, must be the one to determine if the 2nd visit is needed during the 30-day window
Do You Still Get Paid During FMLA Leave?
Technically, you won’t get paid for time off with FMLA leave. However, your company might offer paid maternity/paternity leave, this is separate from FMLA leave. The employer can force you to take that paid time off before unpaid FMLA leave kicks in. Sometimes, employers may require that you use up your paid sick leave first, as well. You’ll need to check with HR what the company’s rules are for using paid time off and FMLA California as it is at the company’s discretion.
Is Medical Proof Required?
By law, you are not always required to provide proof of why you are taking time off work. If your employer requests it, which they are entitled to do, you will need to provide certification from the doctor. It is a touchy issue to share your or your family’s medical information. Employers have the right to make sure you’re using FMLA correctly meaning that your reason for time off is covered under FMLA California. The Department of Labor says that the employer should request the certification at the time leave is requested or within 5 business days of the request.
If your employer requires medical certification, the written document must include:
- The start date of the illness
- The probable length of incapacity
- The necessary medical facts as provided by the health care provider and a statement that the employee or family member cannot work during this time
FMLA vs. CFRA
Many people get FMLA confused with the California Family Rights Act (“CFRA”). FMLA is a federal law while CFRA is a California state law. Both are very similar, but there are several differences that are significant to know when asking for covered leave. There are 4 major differences between the two acts:
- FMLA covers pregnancy disability; CFRA does not
- Registered domestic partners are not covered as spouses; CFRA does
- “Qualifying exigency” because of an employee’s or family member’s active military duty is covered by FMLA; CFRA does not cover this
- FMLA covers time off to care for a spouse, child, parent, or next of kin who is a covered service member that is ill or injured. FMLA allows up to 26 weeks of leave in a 12-month period; CFRA only covers a CFRA covered family member and for only a total of 12 weeks
For more information regarding CFRA, visit our main CFRA page here. When we write about “FMLA California” here we’re referring to the FMLA federal law as it applies to California.
What if You’re Denied the FMLA Leave?
It is unlawful for an employer to withhold or interfere with the rights employees have with the FMLA. It’s also wrong for an employer to fire or discriminate against any employee who opposes the practices of FMLA. So, what happens when you’re denied FMLA leave or have been discriminated against because of it? The absolute first thing you should do is receive a free consultation with a leave of absence lawyer. The lawyer will indicate whether you should move forward with a private lawsuit, refer you to the Department of Fair Employment & Housing, EEOC, or contact the Wage and Hour Division (WHD). A competent employment lawyer will either take your case or point you in the right direction.
Are There Any Reasons I Can Legally Be Denied FMLA Leave?
An employer can legally ask for medical certification when you are requesting FMLA leave, but they can’t require you to sign a medical release/waiver as part of this process. If your employer does request medical certification before allowing FMLA California leave, it is your responsibility to provide sufficient documentation or authorize the health care provider to provide the information to your employer. If you do not provide the requested medical certification, the employer can deny your request for FMLA leave.
Can You Lose Your Job if You Take FMLA Leave?
During the time you are on leave for an FMLA protected reason, you are “job protected”. According to the Department of Labor website, “When an employee returns from FMLA leave, he/she must be restored to the same job or to an equivalent job.[2]” You are protected and should have a job to come back to, but it may not be the same job that you had before the leave. The law doesn’t require your company to hold your job position for you, but you may be given an equivalent position. The protection also extends to making sure your pay remains equivalent. In addition, all of your benefits that you acquired before the unpaid FMLA California leave must be restored as well. Pang v. Beverly Hosp., Inc.
Talk to an Employment Lawyer
Even with the rules of medical leave laid out in both the Family Medical Leave Act and the California Family Rights Act, some employees still end up being wronged. If you’ve been wrongly denied FMLA California leave or you suspect that you lost your job because of taking a covered leave[3], talk to a leave of absence lawyer as soon as possible. An employment lawyer will assist you, including helping you recover lost wages or help you get your job back.
FMLA California Footnotes:
[1] Comparison Chart between FMLA & CFRA
[2] Department of Labor – Fact Sheet #28A Employee Protections under the Family and Medical Leave Act