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info on the Family and Medical Act *PIC*
Date: Tuesday, 10 December 2002, at 11:48 p.m.
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David H. Greenberg California Family Rights Act
The following is from an information sheet distributed by the
California Department of Fair Employment and Housing
Sections 12945.1 and 12945.2 of the Fair Employment and
Housing Act (FEHA) contain provisions relating to family care
and medical leave entitlement The Fair Employment and Housing
Commission's (FEHC) interpretation of these provisions is
contained in Section 7297.0 of the California Code of
regulations.
In
addition to the family care and medical leave requirements of
the FEHA, employers of five or more persons have additional
obligations pertaining to pregnancy ability leave.
The
federal Family and Medical Leave Act (FMLA)also ensures family
care or medical care leave entitlement (29 USC § 2601 et seq.
Implementing regulations are contained in 29 CFR Part 825).
The FMLA is enforced by the Wage and Hour Division of the US
Department of Labor. The CFRA and pregnancy disability leave
provisions of state law are enforced by the Department of Fair
Employment and Housing (DFEH). Where differences between
federal and state law exist, employers should comply with
those provisions that are most beneficial to the employee.
This
brochure addresses the most frequently asked questions
regarding family care or medical leave entitlement.
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Eligibility
Requirements
For what reasons may an employee take a CFRA leave?
An employee may take an unpaid leave for the birth of a child
for purposes of bonding, for placement of a child in the
employee's family for adoption or foster care, for the serious
health condition of the employee's child, parent, or spouse,
and for the employee's own serious health condition.
What is
a serious health condition?
Serious health condition means illness, injury (including
on-the-job injuries), impairment, or physical or mental
condition of the employee or a child, parent or spouse of the
employee that involves either
(1) inpatient care (i.e., an overnight stay) in, a hospital,
hospice, or residential health care facility or
(2) continuing treatment or supervision by 'a health-care
provider.
May an
employer require a written medical certification of the
serious health condition of the employee, employee's child,
parent, or spouse before granting the leave?
Yes. The employer may require written communication from the
health-care provider of the child, parent, spouse, or employee
with a serious health condition. The employer may not require
the certification to identify the serious health condition.
Certification is sufficient if it includes (1) the date on
which the serious health condition commenced, (2) the probable
duration of the condition, (3) an estimate of the amount of
time the employee needs to care for the sick family member,
(4) a statement that the serious health condition warrants
participation of a family member to provide care during the
period of treatment or medical supervision, or (5) a statement
that the employee, due to the serious health condition, is
unable to perform one or more of the essential functions of
his or her job.
May an
employee take a CFRA medical leave due to a disability related
to her pregnancy, childbirth, or related medical condition?
No. An employee has no right to a CFRA medical leave for a
disability related to pregnancy, childbirth, or related
medical condition. Separate leave entitlement is provided by
the FEHA's pregnancy leave provisions covered in Government
Code Section 12945(b)(2). Under the FMLA, however, a pregnancy
disability qualifies as a serious health condition and runs
concurrently with California pregnancy disability leave.
What
employers are covered under the CFRA?
Employers subject to the CFRA are those who do business in
California and employ 50 or more part-time or full-time
employees in any state. Covered employers include nonprofit,
religious organizations, the State of California, including
any political and civil subdivision of the state and cities,
regardless of the number of employees.
What
requirements must an employee satisfy to be eligible to take a
CFRA family care medical leave?
To be eligible for a CFRA leave, an employee must be either a
full-time or part-time employee working in California, have
more than 12 months (52 weeks) of service with the employer,
have worked at least 1,250 hours in the 12-month period before
the date the leave begins, and work at a location in which the
employer has at least 50 employees within 75 miles of, the
employee's work site.
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Leave
Requirements for Family Care and Medical Leave
What is the maximum CFRA-leave entitlement for family care and
medical leave? Leave may total up to 12 work weeks in a
12-month period. It does not need to be taken in one
continuous period of time.
How is
the 12-month period calculated?
An employer may choose how to compute the 12-month period in
which the 12 work weeks of family care and medical leave
entitlement occurs using any of the four calculation methods
allowed under the federal FMLA regulations listed below. An
employer must, however, apply the chosen method consistently
and uniformly to all employees.
These
methods are:
The calendar year;
Any fixed "leave year" of 12 months, such as a
fiscal year or a year starting on an employee's anniversary
date;
The 12-month period measured from the date an employee's first
FMLA/CFRA leave begins; or
A rolling 12-month period measured backward from the date an
employee uses any leave.
To how much family care and medical leave are the CFRA-eligible
employees entitled?
What if they work more or less than five days per week or work
alternative work schedules? The family care and medical leave
entitlement is 12 work weeks or 60 work days for full-time
employees working a five-day, eight hours-a-day work week
during a 12-month period. For eligible employees who work more
or less than five days a week or who work on alternative work
schedules, the number of working days that constitutes 12 work
weeks is calculated on a pro rata or proportional basis.
May the
family care and medical leave be added onto other forms of
leave?
Yes. At the end of an employee's period(s) of pregnancy
disability leave, a CFRA-eligible employee may request a
CFRAfamily care medical leave of up to 12 work weeks for
reason of the birth of her child, if the child has been born
by this date. There is no requirement that either the employee
or child have a serious health condition. Nor is there a
requirement that the employee no longer be disabled by her
pregnancy, childbirth, or related medical condition before
taking a CFRA leave for reason of the birth of her child.
Is
there a minimum duration for a CFRA family care medical leave
taken for the birth, adoption, or foster care placement of a
child?
Yes. The basic minimum duration of a CFRA family care medical
leave is two weeks when the leave is taken for the birth,
adoption, or foster-care placement of a child. However, an
employer shall grant a request for a CFRA leave of less than
two weeks duration on any two occasions. In addition, family
care medical leave taken for the birth, adoption, or
foster-care placement of a child must be completed within one
year of the qualifying event.
Is
there a minimum duration for a CFRA family care medical leave
taken for the serious health condition of a parent, child, or
spouse or for the serious health condition of the employee?
No. Where the CFRA family care medical leave is taken for the
serious health condition of a parent, child, or spouse or for
the serious health condition of the employee, leave may be
taken intermittently or on a reduced work schedule when
medically necessary, as determined by the health care provider
of the person with the serious health condition. However, an
employer may limit leave increments to the shortest period of
time the employer's payroll system uses to account for
absences.
Are
there any limitations to the CFRA family care medical leave
entitlement?
Yes. If both parents are eligible for the CFRA family care
medical leave but are employed by the same employer, that
employer may limit leave for the birth, adoption, or
foster-care placement of their child to 12 work weeks in a
12-month period between the two parents. No other limitations
restrict these parents from taking a CFRA leave for other
qualifying reasons.
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Benefits
Must an employer pay employees during their CFRA family care
medical leaves?
No. An employer is not required to pay an employee during a
CFRA family care medical leave, except when an eligible
employee elects or the employer requires the employee to use
any accrued vacation time or other accumulated paid leave
other than accrued sick leave. However, if the CFRA leave is
for the employee's own serious health condition, the employee
may elect or the employer may require the employee to use any
accrued vacation time or other accumulated paid leave,
including any accrued sick leave. Additionally, accrued sick
leave may be used for a CFRA leave granted for any other
reason if mutually agreed to by the employer and employee.
Must an
employer continue health care coverage for employees during
their CFRA family care medical leave?
Yes. If the employer provides health benefits under any group
health plan, the employer has an obligation to continue
providing such benefits during an employee's CFRA family care
medical leave, an FMLA leave, or both. This obligation
commences on the date family care medical leave first begins
under the FMLA (i.e., for pregnancy disability leave) or under
the FMLA/CFRA (i.e., for all other family care or medical
leaves). The obligation continues for the duration of the
family care medical leave (s) up to a maximum of 12 work weeks
in a 12-month period.
Must an
employer continue other benefits during an employee's CFRA
family care medical leave?
Yes. During the period of a CFRA family care medical leave,
the employee is entitled to accrual of seniority and to
participate in employee benefit plans, including life,
short-term or long-term disability or accident insurance,
pension and retirement plans, and supplemental unemployment
benefit plans to the same extent and under the same conditions
as would apply to any other leave granted by the employer for
any reason other than a CFRA leave.
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Reinstatement
Must an employer reinstate the employee at the end of his or
her CFRA family care medical leave?
Yes. Upon granting an employee a CFRA leave, the employer
shall guarantee reinstatement to the same or comparable
position and shall provide the guarantee in writing upon the
request of the employee. Employment in a comparable position
means employment in a position that is virtually identical to
the employee's original position in terms of pay, benefits,
and working conditions, including privileges, prequisites, and
status. It must involve the same or substantially similar
duties and responsibilities, skill, effort, and authority,
must be performed at the same or geographically proximate work
site, and ordinarily means the same shift or same or
equivalent work schedule.
Are
there any reasons an employer could deny reinstatement to an
employee out on a CFRA family care medical leave?
Yes. An employer may deny reinstatement to an employee if his
or her position ceased to exist, such as in a lay-off. An
employer may also deny reinstatement if the employee taking
the leave is a key employee (salaried and among the highest
paid 10 percent), and the denial of reinstatement is necessary
to prevent substantial and grievous economic injury to the
operations of the employer. However, the employer must notify
the employee of the intent to refuse reinstatement at the time
the employer determines the refusal is necessary as well as
give the employee a reasonable opportunity to return to work.
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Notification
Must an employee give advance notice if he or she wants to
take a CFRA family care medical leave?
Yes. An employee or employee's spokesperson shall provide at
least verbal notice sufficient to make the employer aware the
employee needs a CFRA-qualifying family care medical leave,
state the reason for the family care medical leave, and the
anticipate timing and duration of the family care medical
leave. An employer may require 30 days advance notice before a
CFRA family care medical leave is to begin if the need for the
leave is foreseeable. If 30 days is not practicable (i.e.,
lack of knowledge of approximately when family care medical
leave will be required to begin, a change in circumstances, or
a medical emergency), notice must be given as soon as
practicable. Under all circumstances, it is the employer's
responsibility to designate family care medical leave, paid or
unpaid, as CFRA or FMLA. In addition, the employer shall
respond to a family care medical leave request as soon as
possible but within ten calendar days after receiving the
request.
Must an employer inform employees of notice requirements of
family care medical leave?
Yes. An employer shall provide notice to his or her employees
of the right to request a CFRA family care medical leave and
shall post the notice in a conspicuous place or places where
employees tend to congregate. If the employer publishes a
handbook describing other kinds of personal or disability
leaves available to its employees, the employer shall include
a description of a CFRA leave in its next edition. The
employer may include both pregnancy disability leave and the
CFRA leave requirements in a single notice.
For
more information (800) 884-1684
Sacramento
area & out-of-state (916) 227-0551,
TTY
Number (800) 700-2320
Further Information
For Legal Help see Finding an Attorney and David H. Greenberg,
California Employment Law Attorney
For further information see *Search Table of Contents* in The
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