Family & Medical Leave: 4 Big Differences Between State & Federal Law
If you are experiencing a personal or family medical situation, and need to take a leave of absence from your job, you may be wondering about your legal rights and options.
Employees in California have several options available, provided by several different laws that address this same subject, which include the Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) amongst other laws and regulations.
Some of the main differences between the FMLA & CFRA are listed below, but because of the complexity of medical leave and the ever-changing definitions under these laws, it is highly recommended that you consult with an experienced Family & Medical Leave attorney about your unique situation. There may be other options available to you that are not addressed below.
FMLA & CFRA Similarities
Job Protection: Both the FMLA & CFRA provide for unpaid job protection during your leave of absence.
Length of Leave: Both the FMLA & CFRA provide a minimum of 12 weeks of unpaid leave per year.
Duration & Frequency of Leave: Both FMLA & CFRA leave can be taken all at once, intermittently, or on a reduced schedule, with an exception for bonding time under the FMLA (see #2 below).
FMLA & CFRA Differences
- Pregnancy: Pregnancy-related leave is a major source of difference between these two laws. It is not covered under CFRA but it is covered under the FMLA. Pregnancy disability is considered a “serious health condition” and qualifies for leave under the FMLA.
Under California law, the California Fair Employment and Housing Act (CA-FEHA), the same state law that prohibits discrimination, provides protection for pregnancy-related disabilities. A pregnant employee is entitled to pregnancy disability leave (“PDL”) for up to 4 months. However, PDL does not provide any time off for the birth or placement of a child in foster care or adoption.
The first 12 weeks of PDL can run concurrent with FMLA for eligible employees and for that period, the employer is required to maintain health benefits. At the end of the PDL period, or after 4 months of PDL leave, an employee may take new-child bonding leave under CFRA for up to 12 workweeks (provided she did not use CFRA leave in the preceding 12-month period).
- Bonding time: The FMLA requires an agreement from your employer if you intend to take bonding leave intermittently; however CFRA does not require such an agreement. Under CFRA, you may take intermittent bonding leave but the employer may require that the length of each intermittent leave be two weeks. But if your employer makes that demand, the employer must also allow for two exceptions to it, for shorter increments, on at least two occasions.
- Military Duty: Eligible FMLA employees are entitled to 12 weeks of leave for any “qualifying exigency” arising because the employee’s spouse, son, daughter, or parent has been notified of an impending call to active duty. Health benefits are included. The family member must be a current or retired member of the regular Armed Force. Deployments to a foreign country are not covered. Because CFRA has no such corollary, use of FMLA during this period will not result in corresponding reduction of available CFRA time.
- Care for Ill or Injured Service Member: An employee who is the spouse, child, parent or next of kin of a service member who is covered under the FMLA may take a total of 26 weeks of leave during a 12-month period to care for a covered service member who is ill or injured while on active duty. Health benefits are included. CFRA provides similar coverage if the family members is covered under CFRA. CFRA only provides for 12 weeks, so the last 14 weeks would be FMLA only.
First, as a general rule, where there is a conflict between the provisions of federal law under the FMLA and California law, the provision which provides the greater family or medical leave rights to the employee will prevail.
Second, the type of leave you should take depends in large part on the reason for your leave, as well as the size of your employer and the length of your employment. An employer is not required to grant time off nor to hold a job for an employee unless the employer is covered by the FMLA and CFRA.
Third, the definitions under these laws are always changing and reasons that previously were denied are becoming increasingly accepted under newer versions of the law. For example, parents-in-law were previously not included as care recipients, until July 1, 2014, when the law was expanded to include time off to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law. Thus, it is very important to consult with a legal expert that can help you navigate these complex and intersecting laws.
Fourth, while neither the FMLA nor CFRA require the employer to pay you during your leave of absence, employees should know that there are avenues to get paid during their medical leave. Specifically, the California legislature has recognized the need for at least partial wage replacement during these times and has codified this sentiment into the law. Be mindful that you have these rights and apply for the disability benefits for which you are qualified in a timely manner.
Finally, always remember that retaliation for taking protected leave is prohibited!
If you have questions regarding a personal or family medical leave issue, call Vision Legal, Inc. and speak with a family and medical leave attorney who knows exactly how to look out for you and your right to take a protected leave of absence.
Source: California Dep’t Human Resources https://www.calhr.ca.gov/Documents/leave-comparison-of-fmla-and-cfra.pdf