It is our experience at Miller Wilmers APC that although most employees understand their rights to sick leave, few understand their rights under the California Family Rights Act.

CALIFORNIA FAMILY RIGHTS ACT

An employee may be entitled to a leave of absence under the California Family Rights Act (“CFRA”).  The CFRA provides eligible employees with a right to leave, health insurance benefits, and, with some limited exceptions, job restoration.  To be an “eligible employee”, an employee must (1) have been employed by the Company for at least 12 months (which need not be consecutive); (2) have worked for at least 1250 hours during the 12-month period immediately preceding the commencement of the leave. This is not an option employers are providing to employees but an employee right, and to prevent an employee who qualifies under CFRA to take qualifying medical leave is a violation of the law. 

Basic CFRA Leave Entitlement. The CFRA provides eligible employees up to 12 workweeks of unpaid leave for certain family and medical reasons during a 12 month period.  The 12-month period is measured in multiple ways, one of which can be the start of the first date the employee takes medical leave and forward. Leave may be taken for any one, or a combination, of the following reasons:

• Bonding and/or caring for a newborn child;
• For placement with the employee of a child for adoption or foster care and to care for the newly placed child;
• To care for the employee's spouse, registered domestic partner, child, parent, parent-in-law, grandparent, grandchild, or sibling with a serious health condition;
• For the employee's own serious health condition (excluding pregnancy) that makes the employee unable to perform one or more of the essential functions of the employee's job; and/or
• Because of any qualifying exigency arising out of the fact that an employee's spouse, registered domestic partner, son, daughter, or parent is a military member on covered active duty status (or has been notified of an impending call or order to covered active duty status) in the Reserve component of the Armed Forces for deployment to a foreign country in support of a contingency operation or Regular Armed Forces for deployment to a foreign country.

Under the CFRA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential health care facility, any subsequent treatment in connection with such inpatient care, or any period of incapacity; or continuing treatment by a health care provider, including but not limited to treatment for substance abuse.    The CFRA defines “inpatient care” broadly and includes a stay in a hospital, hospice, or residential health care facility, any subsequent treatment in connection with inpatient care, or any period of incapacity.  A person will be considered an “inpatient” when the person is formally admitted to a health care facility with the expectation that the person will remain at least overnight and occupy a bed, even if the person is ultimately discharged or transferred to another facility and does not actually remain overnight.   The CFRA defines “incapacity” as the inability to work, attend school, or perform other regular daily activities due to a serious health condition, its treatment, or the recovery that it requires.

Under the CFRA, subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than three consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment. 

Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, caring for the parents of the military member on covered active duty, and attending post-deployment reintegration briefings.

A leave of absence in connection with a workers' compensation injury/illness or for which an employee receives disability or State of California Paid Family Leave benefits shall run concurrently with CFRA leave.

Intermittent Leave and Reduced Leave Schedules. CFRA leave usually will be taken for a period of consecutive days, weeks, or months.  However, employees are also entitled to take CFRA leave intermittently or on a reduced leave schedule when medically necessary due to a serious health condition of the employee or covered family member.  Intermittent leave can also be taken for any qualifying exigency.  Intermittent or reduced work schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition, even if the person does not receive treatment by a health care provider.

Employees are also eligible for intermittent leave for bonding with a child following birth or placement.  

Health Insurance Benefits. During CFRA leave, eligible employees are entitled to receive group health plan coverage on the same terms and conditions as if they had continued work.

Restoration of Employment and Benefits. At the end of CFRA leave, employees generally have a right to return to the same or comparable positions they held before the CFRA leave.  Use of CFRA leave will not result in the loss of any employment benefit that accrued prior to the start of an eligible employee's CFRA leave. This is a common violation of law employers perform against employees. We see a parent who has been absent for 12 weeks due to the medical complications of pregnancy and those that follow post-birth, and either demote the parent when they return, terminate their employment, or fail to find similar employment for the parent.

Notice of Eligibility for, and Designation of, CFRA Leave. Employees requesting CFRA leave are entitled to receive written notice from their employer telling them whether they are eligible for CFRA leave and, if not eligible, the reasons why they are not eligible.  When eligible for CFRA leave, employees are entitled to receive written notice of: 1) their rights and responsibilities in connection with such leave; 2) the Company's designation of leave as CFRA-qualifying or non-qualifying, if not CFRA-qualifying, the reasons why; and 3) the amount of leave, if known, that will be counted against the employee's leave entitlement.

Provide Notice of the Need for Leave. Employees who take CFRA leave must timely notify their employer of their need for CFRA leave. This can be any form of communication such as text messages, e-mails, phone calls, letters or any other form of notice.  

Content of Employee Notice. Employees may do this by either requesting CFRA leave specifically or explaining the reasons for leave so the employer may determine that the leave is CFRA-qualifying.  For example, employees might explain that:

• a medical condition renders them unable to perform the functions of their job;
• they are pregnant or have been hospitalized overnight;
• they or a covered family member are under the continuing care of a health care provider;
• the leave is due to a qualifying exigency cause by a military member being on covered active duty or called to covered active duty status; or
• if the leave is for a family member, that the condition renders the family member unable to perform daily activities.

If employees fail to explain the reasons for CFRA leave, the leave may be denied, even if wrongfully denied the employer may use this excuse to escape responsibility for the adverse employment actions taken against the employee.  

Timing of Employee Notice.Employees must provide 30 days' advance notice of the need to take CFRA leave when the need is foreseeable.  When 30 days' notice is not possible, or the approximate timing of the need for leave is not foreseeable, employees must provide their employer notice of the need for leave as soon as practicable under the circumstances. 

Submit Initial Medical Certifications Supporting Need for Leave (Unrelated to Requests for Military Family Leave). Depending on the nature of CFRA leave sought, employees may be required to submit medical certifications supporting their need for CFRA-qualifying leave. 

As described below, there generally are three types of CFRA medical certifications: an initial certification, a recertification, and a return to work/fitness for duty certification.  

It is the employee's responsibility to provide the Company with timely, complete, and sufficient medical certifications.  Whenever the Company requests employees to provide CFRA medical certifications, employees must provide the requested certifications within 15 calendar days after the Company's request, unless it is not practicable to do so despite an employee's diligent, good faith efforts.  The Company will inform employees if submitted medical certifications are incomplete or insufficient and provide employees at least seven calendar days to cure deficiencies.  

The Company (through individuals other than an employee's direct supervisor) may contact the employee's health care provider to authenticate a medical certification. 

Whenever the Company deems it appropriate to do so, it may waive its right to receive timely, complete, and/or sufficient CFRA medical certifications. This is not an infinite right, and your employer must protect the privacy of the employee.

Initial Medical Certifications.Employees requesting leave because of their own, or a covered family member's serious health condition, must supply medical certification supporting the need for such leave from their health care provider or, if applicable, the health care provider of their covered family.  If employees provide at least 30 days' notice of medical leave, they should submit the medical certification before leave begins. 

If the Company has reason to doubt the validity of an initial medical certification regarding an employee's own serious health condition, it may require the employee to obtain a second opinion at the Company's expense.  If the opinions of the initial and second health care providers differ, the Company may, at its expense, require employees to obtain a third, final, and binding certification from a health care provider designated or approved jointly by the Company and the employee.  The Company will reimburse employees for any reasonable “out of pocket” travel expenses incurred to obtain second or third medical opinions.  If your employer is requiring extensive proof to this effect, they may be crossing a fine line regarding harassment related to your medical condition and you are well within your right to have an attorney go over the reasonableness of these demands and seek remedies against the Company. 

Medical Recertifications.Depending on the circumstances and duration of CFRA leave, the Company may require employees to provide recertification of medical conditions giving rise to the need for leave.  The Company will notify employees if recertification is required and will give employees at least 15 calendar days to provide medical recertification.  Recertification will be requested only when the original certification has expired, and additional leave is requested.

Return to Work Release.Unless notified that providing such certifications is not necessary, employees returning to work from CFRA leaves that were taken because of their own serious health conditions must provide the Company with a release to return to work from the employee's healthcare provider stating the employee is able to resume work.  An employee taking intermittent leave may be required to provide a return to work release for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee's ability to perform the employee's duties.  The Company may delay and/or deny job restoration until employees provide a return to work release. However, this is not a high burden and company's will often use the return to work release as a method to deny reemployment by stating certain return to work releases are not enough. 

Submit Certifications Supporting Need for Military Family Leave.Upon request, the first time employees seek leave due to qualifying exigencies arising out of the covered active duty or call to covered active duty status of a military member, the Company may require employees to provide: 1) a copy of the military member's active duty orders or other documentation issued by the military indicating the military member is on covered active duty or call to active duty status and the dates of the military member's covered active duty service and, 2) a certification from the employee setting forth information concerning the nature of the qualifying exigency for which leave is requested.  Employees shall provide a copy of new active duty orders or other documentation issued by the military for leaves arising out of qualifying exigencies arising out of a different covered active duty or call to covered active duty status of the same or a different military member.

Coordination Of CFRA Leave With Other Leave Policies.The CFRA does not affect any federal, state, or local law prohibiting discrimination, or supersede any federal, State, or local law that provides greater family or medical leave rights. 

If you believe your employer is wrongfully denying your right to CFRA leave, please contact our office for a FREE consultation.