Have You Been Unlawfully Denied Leave Under Either the FMLA or the CFRA?

The protection of employee health and welfare is an important part of our society and our economy.  For this reason, both the federal government and the State of California have created statutory provisions allowing qualified employees to take time off to deal with either family or personal health concerns. Under both the Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), an eligible employee may take up to 12 weeks of unpaid leave under certain conditions (discussed below).  It is a violation of the law for an employer to deny an eligible leave request or to retaliate against an employee for taking a leave of absence.

To be eligible you must:

• be employed by a company with more than 50 employees;
• have worked for at least 12 months and 1250 hours;
• work at a site with more than 50 employees or within 75 miles of such a site.

If you think you have been unlawfully denied FMLA or CFRA leave that you are statutorily entitled to, or if you believe you have been retaliated against for taking this leave, you may have significant legal options including financial compensation and/or the reinstatement of your job.
To ensure that your rights are fully protected and that you are getting the full benefit of the law, contact a competent attorney today to discuss your situation as well any legal options that may be available to you.

What are the Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA)?

The FMLA is a federal statute (29 USC §§ 2601-2654) that allows employees to take an unpaid leave of absence for certain family and medical reasons. The CFRA is the California counterpart of the federal act (Govt. C §§12945.1-12945.2) with substantially similar provisions. However, there are still some significant differences in the California Act (discussed below) and people covered under one Act may not be covered under the other.  If you are unsure which Act applies to your situation, you should check with your employer.

Under both Acts, eligible employees are protected from termination and allowed to continue insurance coverage while they are away. The requested leave of absence can be anywhere from twelve weeks to twenty-six weeks (federal act only) depending on the type of medical or family need. Additionally, time off need not be taken all at once. You may take leave in small, even daily, increments or you can take the entire 12-week period, the choice is up to you.

When Can I Take a FMLA/CFRA Leave of Absence?

The Acts cover a twelve-week leave of absence for the following events:

• Child birth and care of a newborn;
• Caring for an newly adopted or fostered child (within one year of placement);
• Caring for a spouse, child, or parent with a serious medical condition;
• Taking medical leave for a serious health condition (the health condition must make the employee unable to perform essential job functions); or
• “Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty” (FMLA only).[1]

The FMLA also allows twenty-six weeks of leave in order to care for a service member who is seriously injured or ill by an employee who is the service member’s spouse, son, daughter, parent, or next of kin.

In both Acts, the definition of spouse has been amended to include all lawfully recognized same-sex and common law marriages as well as legal marriages entered into outside the United States.[2]

Are You an Eligible Employee?

If you are an employee who is employed by:

1. a private company with 50 or more employees, and you have been employed for at least 20 weeks of the year;
2. a public agency including a state, local, or federal agency;
3. a local educational agency covered under special provisions (FMLA only).

To be eligible, you must have worked for at least 12 months (the months worked do not have to be consecutive), for at least 1250 hours with the same employer over the preceding 12-month period, and be employed at an employer worksite with 50 or more employees or within 75 miles of such a worksite.

Employee Protections Under the FMLA/CFRA

Group Health Insurance

In addition to the ability to take unpaid leave, eligible employees are entitled to keep and maintain any group health insurance coverage they have on the same terms as if they continued to work, which means the employee can continue coverage for any included family members. However, the employee must make arrangements to pay the normal employee premium and may lose coverage if payment is more than 30 days late.

If the employee decides to take a paid leave instead of FMLA/CFRA leave, any group health insurance held by the employee must be maintained as it existed during the employee’s regular work attendance and premiums must be paid in the normal fashion used for paid leave. Additionally, the employer may choose to pay the employee’s premium during the leave, but the employer can require the employee to repay these amounts.

Other Benefits

Other benefits must be maintained in the same manner that they would be if the employee was on another form of leave.

Substitution of Paid Leave for FMLA/CFRA

In some cases, an employee may chose to substitute any paid leave that they are eligible for to cover part or all of the period taken for FMLA/CFRA. Employees who wish to substitute paid leave for unpaid leave must follow any policies set up by the employer to do so, including submitting required forms and providing advance notice. However, if the employee doesn’t meet the requirements for paid leave, the employee may still be eligible for unpaid leave under either FMLA/CFRA.

Job Protection While on Leave

One of the most important provisions of the Acts is their guarantee of job protection. Under FMLA/CFRA requirements, an employee who returns from leave must be reinstated to the same job position or to an “equivalent job.” An equivalent job is a job that is identical to the former position in “pay, benefits, and other employment terms and conditions (including shift and location)”, including any pay increases the employee would have normally earned based on COL increases and other unconditional pay increases.[3]

Limitations in Protection

The Acts do not protect employees from the elimination of a shift or overtime hours or any other type of non-discriminatory action the employer may take while the employee was on leave.  For example, if a company ends all night shifts, an employee who works the night shift will not be entitled to return to work under another shift (essentially, if the action would have affected the employee if he was still working, FMLA/CFRA cannot prevent it from affecting him while he is on leave).

Differences in the (CFRA)

The CFRA is substantially similar to the federal law.  However, there are some significant differences:

• Disability as the result of pregnancy or childbirth is excluded under CFRA (However, it is covered under California’s Pregnancy Disability Leave Law);
• CFRA does not provide leave for “qualifying exigencies” related to a qualifying employee’s family member who is on active military duty. However, the employee may qualify for CFRA if the injury is considered a “serious health condition;”
• Bonding time for parents of new children may be limited under CFRA (FMLA limits bonding time for both spouses, while the CFRA limits bonding time for both parents. Accordingly, unmarried parents who work at the same employer may both be entitled to take a 12-week leave under the FMLA, but only one may do so under the CFRA);
• An employee need not specifically assert his right to time off under the CFRA, while under the FMLA an employee need not specifically assert rights for the first time leave is requested, but must do so for any subsequent requests for time off;
• The CFRA allows employees to take a reduced schedule or intermittent leave for bonding time, the FMLA only allows the 12-week leave;
• The CFRA does not cover federal employees, the FMLA does (both cover state employees);

Designation of Leave in California (CMFA or FMLA)

In California, Employers may designate an employee’s leave as both FMLA and CFRA and run the two leave entitlements concurrently in the following situations:

• the employee has a serious health condition;
• the employee is taking leave to care for a family member’s serious health condition;
• the employee has a child;
• a child is placed with the employee either by adoption or through foster care.

Under these circumstances, an employee may only take one 12-week leave of absence even when he is entitled to leave under both FMLA and CFRA. However, it is the employer’s job to designate the leave as both FMLA and CFRA.

Notice Requirements under the FMLA and the CFRA

If you want to take a leave of absence under either the provisions of the FMLA or the CRLA you may be required to provide your employer with advance notification.

Under both FMLA and CRFA, you need to provide 30 days advance notice, if the leave was foreseeable, or as soon as “practicable” if it was not.  You also need to provide your employer with enough information so that the employer understands that the leave is for FMLA qualifying reasons, but you don’t need to specifically state that the leave was for FMLA.  If you want the leave you’ve already taken to retroactively count as FMLA leave, you must inform your employer that the absence was for FMLA qualifying reasons within two business days of returning to work.

In addition to supplying your employer with notification of your intent to take a leave of absence under FLMA/CFRA, you may also be required to file a medical certification or FMLA/CFRA Med-Cert or a Notice-Request FMLA/CFRA Leave. Check with your employer to determine what type of certification is necessary.

Violations of the FMLA or CFRA

Qualified employees have a legal right to take leave under either the FMLA or the CFRA, depending on which statute is applicable.  A company who denies qualified leave is violating the law and employees should seek out the advice of a competent attorney to determine what their options are.

Some common violations of the FMLA and CFRA are:

• failing to provide employees with notification of their rights under the statute, including their right to take leave and their right to reinstatement;
• Discouraging an employee from taking leave;
• Discouraging an employee from taking the full amount of leave they are entitled to;
• Failing to provide leave when requested;
• Failing to reinstate employees to the same position or a substantially similar position;
• Retaliating against an employee for taking or requesting statutorily provided leave.

What You Can Do If You Were Denied Leave Under The FMLA

If you were denied leave under either the FMLA or CFRA you may be able to bring a lawsuit against your employer. However, you must be able to show:

• That you were eligible for FMLA/CFRA protection;
• That you were covered by the FMLA/CFRA;
• That you were entitled leave;
• That you provided your employer with sufficient notice of your intent to take leave where required; and
• You were denied benefits that you were rightfully entitled to.

Benefits You Might You be Entitled To If you were Denied FMLA/CFRA Leave

If you were wrongfully denied benefits under either the FMLA or the CRFA, you may be entitled to be paid for wages you did not recieve or reimbursed any monies you spent as a result of the denial. This amount includes any economic damages you may have suffered, including the lost wages as well as the interest you would have received from the wages, liquidated damages equal to the amount of the economic damages, job reinstatement (if applicable), attorneys fees, and other costs related to the litigation.

Do You Have Questions About Your Rights Under FMLA/CFRA?

Even under the simplest of situations, the law can be complicated and difficult to understand.  If you’re uncertain whether or not you are covered by either the FMLA or CFRA, or if you are unsure whether you were denied benefits that you were entitled to, contact our office today so that we can sit down and discuss your rights and options with you. Ensuring that you receive all the benefits that you are legally entitled to is our number one priority.

[1] http://www.dol.gov/whd/fmla/

[2] http://www.dol.gov/whd/fmla/spouse/index.htm

[3] http://www.dol.gov/whd/regs/compliance/whdfs28a.pdf