WHAT CONDITIONS QUALIFY FOR FMLA?

The California version of the Family Medical Leave Act is more expansive than the Federal FMLA act. A competent, practicing employment lawyer will use the California Family Rights Act (CFRA) and not FMLA if an employee needs to take off work for a qualifying event. Accordingly, this article focuses on the CFRA.

The CFRA (California’s version of the FMLA) provides coverage to employees under the following circumstances:

• the employee’s own serious medical condition
• the serious medical condition of a spouse, including a domestic partner
• the serious medical condition of a parent, foster, or adopted parent, parent-in law, or foster parent
• the serious medical condition of a child
• the serious medical condition of a grandparent
• the serious medical condition of a sibling
• the birth or adoption of a child
• baby bonding

Serious medical conditions are defined as:

• hospitalization, hospice care, or residential treatment care
• pregnancy
• cancer
• continuing treatment (2 or more treatments) by a health care provider broadly defined to include many kinds of health care providers

Leave is allowed in situations other than physical health conditions and surgeries. For example, two or more treatments for therapy with a licensed therapist are qualifying events for CFRA. Treatment before a nurse practitioner, dentist, chiropractor, or physical therapist also qualify under most circumstances.

In order to qualify for CFRA leave:

• employees must be employed by the employer for 1 year
• the employer must have 5 or more employees.
• the employee requesting leave has not exceeded 12 weeks of CFRA leave in 1 year
• the employee has worked 1,250 hours or more for the employer in the last year

How the employee communicates their need for leave, what the healthcare provider has written, and the probable duration of the leave are often essential issues in CFRA/FMLA cases.

There are many nuances, exceptions, and specific requirements for CFRA/FMLA leave. If you have been fired, are not being allowed to return to work, or were not returned with a comparable position please call an experienced FMLA lawyer at 323-525-1600.

Besides more serious medical conditions that qualify for CFRA, pregnancy leave, or disability leave, California requires employers to provide 1 hour of sick pay for every 30 hours worked. The City of Los Angeles requires employers to provide 6 sick days a year, presumably under this same formula. Employees elsewhere in California are supposed to accrue 5 sick days per calendar year. Employers can offer more than the minimum required number of sick days.

Employees who are fired for using statutory sick days may have a case for wrongful termination due to violations of the California Labor Code. If an employee has exhausted their sick days, or has not accrued enough hours of sick pay to miss the amount of time they need to miss, for private employees who are not union members the only other avenue towards a case might be FMLA, disability, or pregnancy leave.

Cases involving job terminations due to employees being sick may run into problems if the employee fails to call and/or is a no-call no show. While technically an employee should not be fired for being out of work when they are sick and have an accrued sick day, failures to communicate with the employer might create a defense by the employer. This is something you need to be prepared to discuss when speaking with an experienced California sick day lawyer at 323-525-1600.

When consulting with an attorney about a job termination due to sickness, employees should check their paystubs or personal records to see how many sick days they have already used and the dates of those sick days. Either an employee has a sick day or they do not.

The state of California requires employers to provide bereavement leave to certain employees. First, the employee must have worked for the employer a minimum of 30 days. Second, the employer must have 5 or more employees. Employers must allow bereavement leaves of at least 5 days. Employees who need longer bereavement leaves are not entitled to those leaves unless the employer has a different policy, or the leave qualifies under CFRA/FMLA. For example, employees who end up going to two or more therapy appointments to cope with the bereavement qualify for CFRA if they are otherwise an employee eligible for CFRA leave.

Bereavement leave is for the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. However, an employer may voluntarily allow bereavement leave to be taken upon the death of another person with whom the employee has a relationship.

Bereavement sick leave came into existence, in California, in 2023. The issues pertaining to this particular type of leave of absence continue to evolve. Issues with bereavement leave are similar to other employee leaves of absence. Employees have to actually tell their employer why they need the leave. Employees who are purposefully vague, embarrassed, or concerned with their privacy are likely to not disclose the right information to trigger the protective law. The Employment Lawyers Group recommends employees are explicit, forthright, and thorough in making requests for bereavement leaves and all leaves of absence. Under the law, what the employer does not know the employer may not be responsible for.

Maternity leave in California derives from employee rights found in California Government Code Section 12945. In an non-legalistic speaking manner, maternity leave might be for as much as 7 months if the employee qualifies for CFRA leave. In order to qualify the employee must work at the employer for 12 months, 1,250 hours or more, and the employer must have 5 or more employees. If the employee does not qualify for CFRA, maternity leaves are limited to 4 months.

Employers must provide maternity leaves to all eligible employees regardless of how long the employee was employed. Legal disputes sometimes occur when employers mistakenly believe they do not have to provide maternity leave, or pregnancy related medical accommodations to employees who are relatively new to the company. Likewise, an employee might request two maternity leaves in a relatively short period of time due to the birth of similarly aged children. The Employment Lawyers Group has handled cases where this causes the employer to not reinstate the employee after the leave, or terminate the employee before the leave begins for pretextual reasons.

Employees who are not reinstated to their prior positions, fired, or not called back to work after a maternity leave are encouraged to call 323-525-1600 to speak to an experienced pregnancy discrimination lawyer. The Employment Lawyers Group has tried before a multiple juries cases involving pregnancy discrimination, harassment, and maternity leave violations including post-trial appeals. Likewise, they have handled these type of cases, often with wrongful termination, charges in arbitration.