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.
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).
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.
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.
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 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:
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).
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).
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).
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).
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.”
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.”
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).
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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