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.
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.
The Acts cover a twelve-week leave of absence for the following events:
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]
If you are an employee who is employed by:
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.
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 must be maintained in the same manner that they would be if the employee was on another form of leave.
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.
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]
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).
The CFRA is substantially similar to the federal law. However, there are some significant differences:
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:
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.
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.
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:
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:
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.
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
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