Family Medical Leave Act & California Family Rights Act

Sometimes referred to as “Leave of Absence Law,” there are both federal and state laws that guarantee an employee the right to take time off work and require the employer to reinstate the employee to the same or comparable job upon their return.

Family Medical Leave of Absence Act (FMLA)

This federal law allows an employee to take up to 12 weeks leave for his or her own serious health condition, the serious health condition of a spouse, parent, or child, or to bond with a child after birth, adoption, or placement of a foster child.

Whether you are able to take leave under FMLA is a separate question than whether that leave will be paid.  Whether pay is available depends upon a company’s particular policy, State Disability Insurance (SDI) , and California’s Paid Family Leave (PFL).  Further, an employer can require an employee to use available paid time off such as vacation or sick leave in the event of the employee’s own serious health condition.

FMLA only applies to employers with 50 or more employees within a 75-mile radius. FMLA is available only to employees who have one (1) year of service with the employer AND have worked 1250 hours within the previous twelve (12) months.  A key employee (one who is in the top 10% of wage earners) may be denied FMLA leave if the leave would create a grievous economic injury to the employer.  Such employees must be notified that they are key employees. In certain circumstances, spouses may be limited to a combined total of twelve (12) weeks of leave.

California Family Rights Act (CFRA)

CFRA is a state law that is very similar to FMLA, but it is not completely identical.  The differences can be very subtle and an employer or employee with questions about a specific situation should consult an employment law attorney for advice.  CFRA and FMLA run concurrently, except in the case of pregnancy or some other very limited circumstance where one type of leave is available and the other is not.  In the case of pregnancy, CFRA does not begin to run until either the employee is no longer disabled or until the four months of leave available under PDL (see below) runs out, whichever is first.

Pregnancy Discrimination Act (PDA)

Under the Pregnancy Discrimination Act, an employee must be given up to six weeks of leave for a normal pregnancy, childbirth, and related medical conditions.  Unlike with FMLA and CFRA, there is no one year waiting period, and it applies to employers with as few as five employees.

Pregnancy Disability Leave (PDL)

This is a California law that guarantees an employee up to four months for pregnancy-related disability.  There is no one year waiting period.  Further, it applies each time the employee gets pregnant.

Paid Family Leave

This is a California law that does not actually establish a right to a leave of absence, but is similar to an insurance program that provides for partial wage replacement during a period of a disability of a family member.

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