How to Take Unpaid Leave in California: FMLA, CFRA, FEHA, ADA, and You

The Rights of California Employees to Take Unpaid Leave Under Certain Circumstances

The Family Medical Leave Act of 1993 and the California Family Rights Act of 1991 provides qualifying employees with at least sixty (60) days of unpaid leave for qualifying reasons. Further, a qualifying employee is guaranteed to return to their same position, or an equivalent position, when they return from their statutorily protected leave of absence. In the event that an employee needs additional leave, they may be entitled to “reasonable accommodations” under the California’s Fair Employment and Housing Act or the Americans with Disabilities Act. An Employer may face significant penalties if they fail to comport with the law, including back pay, lost future earnings, emotional distress, punitive damages, and an award of attorney’s fees and costs. 

It’s a simple reality of life that you will be too sick to work at some point during your professional career; the only certain things in life are death, taxes, and illness. Naturally, this raises the specter of unstable finances vis-à-vis concerns over whether or not you will have a job to return to you after you recover. Without a thorough understanding of the Federal Family and Medical Leave Act of 1993 (“FMLA”), an illness could cost you a lucrative career when it didn’t need to.

Luckily, the FMLA and its California corollary, The California Family Rights Act of 1991 (“CFRA”), prohibit an employer from firing or taking retaliatory actions for certain protected activity; this article will discuss the nuances of these laws. 

  1. What Protections am I, As an Employee, entitled to Under the FMLA and CFRA?

Employees are entitled to unpaid leave for a total of sixty (60) work days per year, provided the leave is required for a qualified reason. Provided an employee takes leave for one of those qualified reasons and does not exceed their statutorily guaranteed allotment of unpaid leave, an employer is prohibited from terminating their employment during that period. Far more importantly however, an employer is further prohibited from preventing an employee, who took a qualifying leave of absence, from returning to their old position (or an equivalent position). 29 CFR §825.214; 2 Cal Code Regs §11089. In addition to those protections, an employer is also prohibited from discontinuing their employees’ medical benefits while they are on a qualified leave of absence. 29 CFR §825.209(a); 2 Cal Code Regs §11092(c).

Both the FMLA and the CFRA prohibit employers from retaliating against employees who have requested, or taken, a qualifying leave of absence; it is critical to understand that these protections disappear after an employee has exhausted their allotment of sixty (60) workdays in a year (though there may be ways to continue those protections).

  1. Will I Be Able to Collect a Paycheck from My Employer While I am on Leave for a Qualifying Reason?

As noted above, the FMLA and CFRA do not require employers to pay their employees while they are on leave (though they are free to do so); the FMLA and CFRA regulates what conduct an employer is allowed to engage in as it relates to your job security and medical benefits during that time. This does not mean that you are out of options however, as you will likely qualify for disability, or wage replacement.

  1. What the Requirements for Gaining the Protections of the FMLA and CFRA?

There are three general requirements that must be met before the FMLA and the CFRA can apply: (A) the employee’s reason for taking leave must qualify for protections under the FMLA and CFRA; (B) the employee themselves must be eligible for protection under the FMLA and CFRA; and (C) the employer must be covered by the FMLA and CFRA.

  1. What Are Qualifying Reasons for Taking Leave Under the FMLA and CFRA?

A prerequisite to obtaining protections under the FMLA and CFRA is that the reason for the employee’s leave of absence meets one of the criteria set forth under the law. 29 USC §2612(a)(1); Govt C §12945.2(c)(3). The following non-exhaustive list contains qualifying reasons for taking leave under the FMLA and CFRA.

  • The employee is taking leave for a “serious health condition” (discussed below), which renders them “unable to perform one or more of the essential functions of [their] position.”
    • CAVEAT: Under the CFRA, a disability that was caused by medical conditions related to pregnancy or childbirth does not qualify as a “serious health condition.”
  • The employee is taking leave to care for a family member, who has a “serious health condition.”
    • CAVEAT: This reason only qualifies under the CFRA
  • The employee, or the employee’s spouse, has recently given birth, and the employee is taking leave to care for their newborn child.
  • The employee has recently adopted a child or received a child through foster care.
  • The employee is taking leave for an illness related to pregnancy, prenatal care, or childbirth.
    • CAVEAT: This reason only qualifies under the FMLA
  1. What Are the Eligibility Requirements for Leave Under the FMLA and CFRA?

The next requirement for protection under the FMLA and CFRA is that the employee themselves be eligible for protection in the first place. 29 CFR §825.110(a); 2 Cal Code Regs §11087(e). As such, the employee must meet the following requirements:

  • The employee has been employed with the same employer for at least one (1) year, prior to taking leave under the FMLA and CFRA;
  • The employee must have worked, for the same employer, for a at least one thousand two hundred and fifty (1,250) hours in the year prior to taking leave;
  • The employee must be employed at a location where the employer has fifty (50) or more employees that live within a seventy-five (75) mile radius of that location.
    • CAVEAT: for purposes of this requirement, “employee” means any part-time employees, as well as employees that are presently on leave.
    • CAVEAT: In 2018, the CFRA was amended to require 20 employees within seventy-five (75) miles, if the qualifying reason for leave is to care for a newborn.
  1. What Requirements Must an Employer Meet in Order to Be Covered by the FMLA or CFRA?

Obviously, an eligible employee who is taking leave for a qualifying reason cannot obtain the protections of the FMLA or the CFRA unless the employer themselves are covered under the law. In order to be covered by the FMLA or CFRA, the employer must employee a minimum of fifty (50) employees each workday for a continuous twenty (20) day period over the course of the prior year. As noted above, part-time employees, and employees who are presently on leave, count as an “employee” for purposes of determining the applicability of the law to a given employer. 29 USC §2611(4)(A)(i); Govt C §12945.2(c)(2).

  1. What Constitutes a “Serious Health Condition” Under the FMLA and CFRA?

We will start with what is not considered a “serious health condition”; without complications, things such as the flu, common colds, headaches, routine dental issues, minor ailments, small ulcers, or the stomach flu are not considered “serious health conditions.” 29 CFR §825.113(d). Conversely, if an injury, illness, physical condition, mental condition, or impairment requires either continuing medical treatment or requires inpatient care it will qualify as a “serious health condition.”

NOTE: A flu can be considered a “serious health condition”, if the employee was incapacitated for more than three (3) days, and the employee has gone to the doctor for treatment at least once. Miller v. AT&T Corp (4th Cir. 2001) 250 F3d 820, 832. Further, some mental allergies and mental illnesses may be considered “serious health conditions” under the proper circumstances. 29 CFR §825.113(d).

  1. How Do I Request Leave Under the FMLA and CFRA?

Before an employee can claim the protections afforded to them under the FMLA and CFRA, the employer must be made aware of your need for medical leave; this must typically occur thirty (30) days prior to the beginning of your requested leave (provided is possible to do so,  as would be the case if you were taking leave for the purpose of caring for a newborn infant). In the event that you cannot give the employer thirty (30) days’ notification, the employee is obligated to inform their employer of their need for leave “as soon as practicable” based on the circumstances of their need for leave. 29 CFR §825.303(a); 2 Cal Code Regs §11091(a)(3).

  1. Is My Employer Legally Allowed to Ask For Proof Regarding My Need for Leave Under the FMLA and CFRA?

Yes, the FMLA and CFRA do not prohibit an employer from requesting what is known as “medical certification” substantiating your stated basis for leave. However, if the employer requires “medical certification”, that requirement must be reduced to writing at the time of their request and inform the employee of the consequences of failing to provide that “medical certification.” If an employer does not reduce their “medical certification” requirement to writing, including the consequences for failing to comply, then the employer is prohibited from engaging in adverse actions against the employee. 29 CFR §825.305(d); 2 Cal Code Regs §11091(b)(3).

  1. Can I Take Additional Leave After I Have Used Up My Allotment of Sixty (60) Days Under the FMLA and CFRA?

There are 3 reasons why an employee may be able to take a prolonged leave of absence, beyond the sixty (60) days allowed under the FMLA and CFRA: (A) the employee is suffering from a “serious health condition”; (B) the employee’s active duty family member was injured; and (C) pregnancy. However, this additional time is granted under the auspices of various laws in addition to the FMLA and CFRA. This article will only address “serious health conditions.”

  1. What is a Qualifying “Serious Health Condition” for Additional Leave?

After an employee has utilized their allotment of sixty (60) workdays under the FMLA and CFRA, they can seek “reasonable accommodations” under California’s Fair Employment and Housing Act (“FEHA”) or the Americans with Disabilities Act (“ADA”). The downside to these “reasonable accommodations” is that the employee no longer enjoys the protections of a guaranteed job when they return, but both FEHA and the ADA prohibits an employer from retaliating or discriminating against an employee who has requested “reasonable accommodations.”

  1. Am I Guaranteed a Job When I Return From Leave Under FMLA and CFRA?

As noted above, an eligible employee, who has taken leave for a qualifying reason with a covered employee, is entitled to reinstatement of their position (or an equivalent position if they were replaced in the interim).

  1. What Can I Do if My Employer Has Violated the FMLA and the CFRA?

If an employer has violated the FMLA or the CFRA vis-à-vis retaliation or failure to reinstate an employee’s position, the employee can file suit in Court to recover: (A) Lost wages, including lost wages as well as future earnings; (B) emotional distress (this is not typically awarded, but may be in the proper circumstances); (C) punitive damages; and (D) attorney’s fees and costs.

If you or a loved one has recently been subjected to an adverse employment decision, which was based in part on their request for leave or actual leave of absence for a qualifying reason, it is essential that you contact a skilled attorney immediately; while it is possible to pursue your legal remedies on your own, it is much more likely to succeed with the guidance of a competent attorney. The attorneys at Yermian Law have ample experience protecting the rights of aggrieved employees and will zealously advocate on your behalf.


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