2107 - Family Medical Leave Act / California Family Rights Act (Historical View)

** Effective: 12/30/2022 11:11:23 AM - 12/30/2022 12:23:28 PM **

Status: Active

Change Notes

Resource updated: Changed the destination page.

Category

Leave

Audience List

Synopsis

This policy

Introduction

Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) entitles eligible employees up to 12 workweeks of unpaid, job-protected leave each calendar year for specified family and medical leave reasons. In addition, FMLA includes a special leave entitlement that permits eligible employees to take up to 26 workweeks of leave to care for a covered servicemember during a 12-month period.

Statement

The United States Department of Labor (DOL) Employment Standards Administration, Wage and Hour Division, administers and enforces the FMLA for all private, state and local government employees, and some federal employees.

The California Department of Fair Employment and Housing (DFEH) administers and enforces the CFRA for all state and local employees. State legislation in 1993 changed the state law to generally conform to the provisions of the FMLA. Where the FMLA law and the CFRA law differ, the most generous/less restrictive leave provisions must be applied.

Example: The Code of Federal Regulations, title 29, section 825.306 allows an employer to ask for a diagnosis; however, California Code of Regulations, title 2, section 11091 specifies that an employer cannot ask for a diagnosis, but it may be provided at the employee’s option. Since CFRA is less restrictive, the department cannot ask an employee for a diagnosis under the amended FMLA regulation.

The FMLA/CFRA does not supersede any memorandum of understanding (MOU) that provides greater family or medical leave rights.

Leave Entitlement

The FMLA/CFRA entitles eligible employees to take up to 12 workweeks (26 workweeks to care for a servicemember) of unpaid, job-protected leave in a 12-month period and the continuation of health benefits for one or more of the following reasons:

The calendar year method, January through December, is used by the State of California, except for Military Caregiver Leave where the 12-month period is measured by counting forward from the first day the employee takes the leave and ends 12 months later.

Twelve workweeks means the equivalent of twelve of the employee's normally scheduled workweeks. The CFRA regulations state that 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 workweeks is calculated on a pro rata or proportional basis. If an employee's schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would have worked, a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period is used for calculating the employee's leave entitlement. (California Code of Regulations, title 2, sections 11087, subd. (t), 11090, subd. (c).)

When a holiday falls on a normal scheduled work week and the employee is taking a full week of leave, the holiday counts against the employee’s 12-week FMLA/CFRA leave entitlement. If the employee is taking FMLA/CFRA leave in increments of less than a week, the holiday counts against the employee’s FMLA/CFRA entitlement only if the employee was required to work on the holiday.

The FMLA and CFRA generally run concurrently. When both leaves run concurrent departments must track the leave against both entitlements. However, there are circumstances when the leave will not run concurrently, which include the following:

An employee who takes leave under CFRA for one of the above circumstances may still have 12 weeks of job-protected leave available to take in the calendar year for another qualifying reason (i.e., spouse, child, or parent) under FMLA, if they meet the eligibility requirements.

At the end of an employee's period(s) of PDL, a CFRA eligible employee may request a CFRA leave of up to 12 workweeks for reason of birth of a child. 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 pregnancy, childbirth, or related medical condition before taking CFRA leave for reason of birth of a child. For additional information on PDL, refer to Policy 2120.

Effective January 1, 2021, spouses employed by the same employer are each entitled to 12 workweeks of family leave for the birth, adoption, or foster care placement of their child.

Under some circumstances, employees may take FMLA/CFRA leave intermittently, which means taking leave in separate periods of time, or by reducing their normal weekly or daily work schedule. If FMLA/CFRA leave is used for bonding with a child, the basic minimum leave duration is two weeks. However, the employer must grant a request for leave of less than two weeks on any two occasions.

Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA/CFRA leave. Employees may break the continuity of dock when using leave credits to cover an FMLA/CFRA absence.

The employer is responsible for designating if an employee's use of paid leave counts as FMLA/CFRA leave based on information from the employee.

A covered employer is required to maintain group health insurance coverage for an employee on FMLA/CFRA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.

In some instances, the employer may recover premiums paid to maintain health coverage for an employee who fails to return to work from FMLA leave.

The CFRA regulations provide that an employee’s right to maintenance of health benefits under the CFRA is a separate and distinct right from an employee’s right to maintenance of health benefits under the PDL (California Code of Regulations, title 2, section 11093.)

Definitions

Definitions for the following may be found for FMLA in the Code of Federal Regulations, title 29, section 825.102 and for CFRA in Government Code section 12945.2 and the California Code of Regulations, title 2, section 11087:

Eligibility Criteria

To be eligible for FMLA/CFRA benefits, an employee must:

  1. work for a covered employer; and
  2. have worked for the employer for a total of 12 months; and
  3. have worked at least 1250 hours over the previous 12 months; and
  4. for FMLA only, work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.

An employee is eligible for FMLA/CFRA leave when the employee has worked for an employer for a total of 12 months following the date of hire, even with a break in service after the date of hire. In addition, the employee must have physically worked at least a minimum of 1,250 hours in the past year.

The statutory requirement is that employee eligibility determinations be made “as of the date leave commences.” If an employee reaches the 12-month eligibility requirement while on leave, the leave period prior to meeting the requirement is non-FMLA/CFRA leave, and the leave period after the requirement is fulfilled is FMLA/CFRA leave. Except for administrative time off (ATO) while under investigation (i.e., pending a department-initiated investigation or fitness for duty), periods of leave, including paid leave due to job-related accidents or injuries, do not count towards the 1,250 hours requirement. Paid time off documented as ATO for reasons such as COVID-19 illness, telework unavailable, emergency ATO due to fires, etc. do not count towards the 1,250-hour requirement. However, the paid time off does count towards the 12 months of employment requirement.

Example: An employee requests FMLA/CFRA leave but has only worked for the employer 11 months and does not meet the 12-month requirement for FMLA/CFRA. The FMLA/CFRA leave is denied. The employee is allowed to take a non-FMLA/CFRA leave. During the time taken for the non-FMLA/CFRA leave the employee meets the

12-month requirements for FMLA/CFRA eligibility and is now eligible for FMLA/CFRA leave. From that point forward the leave is FMLA/CFRA leave and is counted against the employee’s FMLA/CFRA entitlement.

Employer Notice Requirements

Effective January 16, 2009, amended DOL regulations created three new employer and/ or employee notice responsibilities: (1) A mandatory General Notice published by the DOL for departments to use; (2) Notice of Eligibility and Rights and Responsibilities (FMLA/CFRA) (CalHR 752); and (3) Designation Notice (FMLA/CFRA) (CalHR 753). CalHR has standardized CalHR 752 and 753 as fill in and print forms.

  1. General Notice (FMLA)

    DOL has published a new general notice poster. Departments must post the new notice entitled “Employee Rights under the FMLA” (WH Publication 1420) at the worksite so it is visible to all employees and applicants. Each new employee must be given the information provided in the General Notice. An employer that willfully violates this posting requirement may be subject to a fine of up to $110 for each separate offense.

    The General Notice must be accessible to employees by including it in an employee handbook or including all of the information contained in the General Notice in the department’s own specific FMLA policy. Employers that post their handbook electronically meet the General Notice requirement only if it is accessible to all employees.
     
  2. “Notice of Eligibility and Rights and Responsibilities (FMLA/CFRA)” (CalHR 752)

    A new form titled “Notice of Eligibility and Rights and Responsibilities” (CalHR 752) is required to be given to the employee within five business days after the employer receives a request for FMLA/CFRA leave or becomes aware that the leave may qualify for FMLA/CFRA (previously the employer only had two days to notice employees). Departments may customize the CalHR 752 as long as it includes, at a minimum, the same information specified in the form.

    The “Notice of Eligibility and Rights and Responsibilities” (CalHR 752) informs the employee whether or not they are eligible for FLMA/CFRA leave (i.e. worked at least 12 months with the employer and worked at least 1,250 hours in the previous 12 months). When a represented employee is denied eligibility based solely on a lack of 1,250 hours of service, there may be a union noticing requirement. Reference the applicable Memorandum of Understanding. Eligibility does not mean the leave has been approved for FMLA/CFRA at this point. The form also provides important information regarding the employee’s FMLA/CFRA rights and responsibilities, information on medical certification requirements, and the consequences for not meeting those requirements, as well as information regarding the return-to-work release. In addition, departments must provide specific written information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA/CFRA leave.

    As a reminder, departments may require at least 30 days’ advance notice when the need for FMLA/CFRA is foreseeable. Foreseeable leave includes planned birth, adoption, foster care placement, or medical treatment. In the case of a serious health condition, if it is not possible to give such advance notice, the employee must submit the request as soon as possible.
     
  3. “Designation Notice (FMLA/CFRA)” (CalHR 753)

    After the medical certification form (see below) is received, the new “Designation Notice” (CalHR 753) informs the employee whether the FMLA/CFRA leave is approved. The department has five business days to inform the employee if the leave will be designated as FMLA/CFRA leave. If the leave is not designated as FMLA/CFRA, the department must state in writing the reason why the leave is denied and provide consequences for failing to provide a complete certification. A return-to-work release may be required to return from leave if that is the department’s policy for returning employees to work after illness, injury, or disability.

    The amended regulations clarified that only one Designation Notice is required for each FMLA/CFRA qualifying reason, per leave year, regardless of whether the leave is taken as a continuous block of leave or on an intermittent or reduced leave schedule basis. A retroactive notice is permissible if it does not cause employee harm or injury. Departments may not retroactively designate leave after the employee has returned to work.

Effective July 1, 2015, amended FEHC regulations require every employer must post a notice explaining the CFRA provisions and procedures for filing complaints in conspicuous places where employees are employed. In addition, employers must post the notice where it can be readily seen by employees and applicants for employment. Electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the requirements of the new CFRA regulations. (California Code of Regulations, title 2, section 11095, subd. (a).) Employers may post the CFRA notice on an Intranet site, but employers will also need to post the notice in an area accessible to applicants.

Medical Certification

If the employee is eligible for FMLA/CFRA leave, provide the employee with the California Department of Fair Employment and Housing (DFEH) “Certification of Health Care Provider for CFRA/FMLA” (DFEH-E11P-ENG). This form is used for both the employee and family member’s serious health condition. It is the employee’s responsibility to provide the department with the appropriate medical certification within 15 calendar days. The “Certification of Health Care Provider for CFRA/FMLA” (DFEH-E11P-ENG) is maintained as a confidential document.

Departments may customize their own form so long as it includes the information specified in the CFRA regulations. (California Code of Regulations, title 2, section 11097.)

Employee Notice and Certification

Employees seeking to use FMLA/CFRA leave are required to provide 30-day advance notice of the need to take FMLA/CFRA leave when the need is foreseeable and such notice is practicable. When intermittent leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer's operation.

Employers may also require employees to provide:

If the employer has a good faith, objective reason to doubt the validity of a medical certification for their own medical condition, the employer may require a second medical opinion. The request will be at the employer’s own expense. (California Code of Regulations, title 2, section 11091, subd. (b)(2)(A).)

The CFRA regulations provide the employer may only contact the health care provider for the limited purpose of authenticating the certification. (California Code of Regulations, title 2, section 11091, subd. (b)(2).) Accordingly, if an employer receives a deficient or incomplete certification, the employer must write to the employee and explain the deficiencies in the certification and provide the employee an opportunity to provide the necessary information. Moreover, the employer should advise the employee of the consequences of failing to timely provide a complete certification.

Military Family Leave

The FMLA provides two types of Military Family Leave entitlements. The first is Military Caregiver Leave (MCL) and the second is Qualifying Exigency leave (QEL). The law contains requirements on employer coverage; employee eligibility for the law's benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after the leave; notice and certification of the need for FMLA leave; and, protection for employees who request or take FMLA leave. The law also requires employers to keep certain records.

Effective January 1, 2021, SB 1383 expanded the CFRA to include leave because of a qualifying exigency related to the covered active duty or call to active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States, as specified in Section 3302.2 of the Unemployment Insurance Code.

For both MCL and QEL employees must meet the same FMLA/CFRA eligibility requirements in terms of their tenure of service and the amount of time worked in the previous 12 months. Departments are required to notice the employee using the following forms:

These forms notify employees of their eligibility and determination for MCL and QEL leave. The Notice of Eligibility and Rights & Responsibilities form must be given to the employee within five business days after the employer receives a request for leave or becomes aware of the need for leave. The Designation Notice form must be given to the employee within five business days after sufficient information has been provided to the department.

Military Caregiver Leave (MCL)

Eligible employees are entitled to take up to 26 weeks of unpaid, job-protected leave in a 12-month period to care for a covered servicemember with a serious illness or injury incurred in the line of active duty. This leave may be taken intermittently when medically (psychological and physical care) necessary. Covered servicemembers include current members of the regular Armed Forces, National Guard or Reserves, veterans undergoing medical treatment, or recuperation, and members who are on a temporary disability retired list. The veteran must have been a member of the Armed Forces (including the National Guard or Reserves) at any time within five years preceding treatment.

Employees who are eligible for MCL include: the servicemember's parent, spouse, or child and next of kin. For purposes of this leave, the definition of son or daughter includes the servicemember's "biological, adopted or foster child, stepchild, legal ward or child for whom the service member stood in loco parentis, and who is of any age." The definition of parent includes the servicemember's "biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the service member." However, parents-in-law are not included. Next of kin is defined as the servicemember's nearest blood relative (other than a spouse, parent, or child) in the following priority order - custodial blood relatives, siblings, grandparents, aunts and uncles, and first cousins. Family members sharing the same relationship (e.g., all siblings) will all be considered next of kin and each will be entitled to leave for care giving. Spouses who are FMLA eligible and work for the same employer may be limited to a combined total of 26 weeks' caregiver leave. Confirmation of the employee’s relationship to the covered servicemember must be provided to the department.

Example: If a covered servicemember has three siblings and has not designated a blood relative to provide care, all three siblings would be considered the covered servicemember’s next of kin. Alternatively, where a covered servicemember has a sibling and designates a cousin as their next of kin for FMLA purposes, then only the designated cousin is eligible as the covered servicemember’s next of kin.

MCL is not in addition to the 12 weeks of FMLA leave normally available to eligible employees, but is aggregated with all other types of FMLA qualifying leave during the applicable 12-month period. The 12-month period begins on the day the employee begins caregiver leave and ends 12 months thereafter.

Because MCL is available on a per servicemember per injury basis, an eligible employee may be entitled to take more than one such leave during the course of their employment to care for different servicemembers or for the same servicemember with a subsequent injury or illness. In such circumstances, leave is still limited to no more than 26 weeks during the applicable period.

When leave is taken to care for a covered servicemember with a serious injury or illness, an employee must obtain a medical certification. The “Certification for Serious Injury or Illness of a Current Service Member for Military Caregiver Leave under the FMLA” (DOL Form WH-385) may be used or departments may customize their own form so long as it includes, at a minimum, all the information specified in DOL Form WH-385. The medical certification form is completed by an authorized health care provider of the covered servicemember, such as the Department of Defense (DOD), Veteran Affairs (VA), DOD Tricare, DOD non-network Tricare, and DOD authorized representative.

Employees must provide 30 days’ advance notice of the need to take leave for planned medical treatment for a serious injury or illness of a covered servicemember. If leave is foreseeable, but 30 days’ advance notice is not practicable, the employee must provide notice as soon as practicable - generally, either the same or next business day.

Qualifying Exigency Leave (QEL)

Eligible family members will be entitled to take up to 12 weeks of FMLA/CFRA leave for "qualifying exigencies" arising out of a covered military member's active duty status, or call to active duty, in support of a contingency operation or deployment to a foreign country. This leave may be taken intermittently. QEL is not available to family members of military members who are retired members of the regular Armed Forces, a state Reserve or National Guard unit, or are called to active duty by a state rather than the federal government. It is available only to the family members of regular Armed Forces, National Guard or Reservists called to federal active duty.

QEL includes the following events:

When an employee requests QEL they must complete the “Certification for Military Family Leave for Qualifying Exigency under the FMLA” (DOL Form WH-384). Departments may customize their own form so long as it includes, at a minimum, all of the information required by the regulation as specified in DOL Form WH-384.

As part of the certification process, the employee is required to provide copies of the military member's orders or other military documentation, facts regarding the exigency, and dates of the military member's active duty service and beginning of the exigency.

If foreseeable, the employee must provide advance notice of the need for QEL. The employee’s notice timeframe must be “reasonable and practicable.” The DOL interprets “as soon as practicable” to mean same day or next business day.

Example: An employee receives notice of a family support program a week in advance of the event; it should be practicable for the employee to provide notice to their department of the need for QEL the same day or the next business day.

When the need for leave is unforeseeable, an employee must comply with a department’s normal call-in procedures.

Employees are not obligated to provide notice to their departments when they first become aware of a covered family member’s active duty or call to active duty status. An employee’s obligation to provide notice of leave due to a qualifying exigency is triggered when the employee first seeks to take QEL.

Job Restoration

The regulations provide that as a condition of an employee’s return from medical leave, the employer may require the employee obtain a release to return to work from their health care provider stating they are able to resume work only if the employer has a uniformly applied practice or policy of requiring such release from other employees returning to work after illness, injury, or disability.

In accordance with the Code of Federal Regulations, title 29, section 825.214 and California Code of Regulations, title 2, section 11089, upon return from FMLA/CFRA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and condition of employment.

In addition, an employee's use of FMLA/CFRA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA/CFRA leave, nor be counted against the employee under a "no fault" attendance policy.

If an employee accepts light duty work while recovering from a serious health condition, the period on light duty assignment will not be counted as FMLA/CFRA. Employees may not be required to work light duty jobs in lieu of taking leave, and those who do so voluntarily are not on FMLA/CFRA leave. At the end of the assignment, the employee has the right to be reinstated to the same or an equivalent position.

Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:

A "key" employee is a salaried eligible employee who is among the highest paid ten percent of employees within 75 miles of the work site.

If a “key” employee’s leave is covered by both FMLA and CFRA or CFRA only, an employer may not refuse the employee’s right to reinstatement.

Under CFRA regulations, “an employee who fraudulently obtains or uses CFRA leave from an employer is not protected by CFRA’s job restoration or maintenance of health benefits provisions. An employer has the burden of proving that the employee fraudulently obtained or used CFRA leave.” (California Code of Regulations, title 2, section 11089, subd. (d)(3).)

Additional FMLA/CFRA Provisions

The following are other provisions to the FMLA and/or the CFRA regulations:

Unlawful Acts

It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by FMLA/CFRA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related FMLA/CFRA.

Enforcement

The FMLA does not affect any other federal or state law, which prohibits discrimination, nor supersede any state or local law, which provides greater family or medical leave protection. Nor does it affect an employer's obligation to provide greater leave rights under a collective bargaining agreement or employment benefit plan. The FMLA also encourages employers to provide more generous leave rights.

The Wage and Hour Division investigates FMLA complaints. If violations cannot be satisfactorily resolved, the U.S. Department of Labor may bring action in court to compel compliance. Individuals may also bring a private civil action against an employer for violations.

The DFEH maintains authority to investigate CFRA complaints.

Application

Not Applicable.

Authorities

Resources

FAQs

Forms

PML

Related Policies

Web Pages

Authorized By

Melissa Russell
Chief, Personnel Management Division

Contact Person

Personnel Services Branch
Personnel Program Consultant, , Personnel Services Branch
Phone: 916-323-3343
Fax: 916-327-1886
Email: psb@calhr.ca.gov

Superseded Policies

Not Applicable.