The COVID-19 pandemic made it abundantly clear to business owners and employers that life is uncertain, and sometimes a change in circumstances will require you or your employees to take extended time away from work. Whether it be medical complications, a pregnancy, or caretaking for a sick family member, California employers must adhere to leave requests by honoring employee rights stated in the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). 

Family or medical leave can be a foreseen or unforeseen situation and typically takes more administrative preparation from employers than paid time off or sick days. Here is what California employers need to know about the current state of family and medical leave in 2022:

How FMLA Affects Employers 

Since going into effect in 1993, the Family and Medical Leave Act has sought to protect the work-life balance of employers and their workers in the US. It currently allows employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period. This law is only applicable to “covered” employers. A covered employee is considered any of the following: 

  • Private-sector employer, if it employs 50 or more employees in 20 or more weeks in the current or previous year
  • Public agency, regardless of the number of employees
  • Certain federal government sectors, like the USPS, Federal Aviation Administration, and the judicial branch of the United States
  • Local educational institutions, regardless of the number of employees

Even if your business does not fall under one of these specific categories, it may still be eligible for FMLA coverage if your business is considered an Integrated Employer, Joint Employer, or Successor Employer. 

Employees under covered employers must have worked for at least 12 months and have logged at least 1,250 hours of service in that time to be eligible under FMLA. They must also work at a location where there are at least 50 employees within 75 miles of their worksite. If an employee is declared eligible, their circumstances must also meet a specific requirement before they may be granted leave. These are: 

  • To bond with a new baby, whether that child is a newborn, adopted child, or foster child
  • A serious health condition that prevents an employee from performing their essential job functions
  • To be a caregiver for a legal spouse, registered domestic partner, or family member with a severe ailment or health condition
  • To spend time with an active-duty military parent, spouse, or child who deploys or takes a short time leave from the Armed Forces, National Guard, or Reserves

Once leave has been approved under FMLA, the employer must clarify that it will be designated as so and confirm the amount of leave that will be deducted from their FMLA entitlement. If an employee is found ineligible for FMLA leave, the notice must be provided within 5 business days of the initial request along with the reasons they do not qualify. 

Upon an employee’s return from their extended family or medical leave, employers are responsible for ensuring that the worker is restored to their original position or is transferred to a new role that is equivalent to their preceding job. This should be restored in terms of pay, benefits, and all other conditions of employment. 

There may be requests that require a bit more validation to be considered FMLA eligible. In this event, employers have the right to request a form of certification to further validate 1) an employee’s own serious health condition,  2) a serious health condition of their parent, spouse, or child, or 3) military family leave. Certifications should come from a healthcare provider that substantiates the employee’s claims. Adversely, at the end of an employee’s leave, an employer may request a fitness-for-duty certification from a healthcare provider to verify that the employee can safely return to their duties. 

General Notice Requirements

All employers covered by the FMLA are obligated to provide general notice to their employees regarding FMLA rights and responsibilities in the form of a poster, a written notice, and in employee handbooks. Employers who fail to provide these notices to employees may be subject to a civil money penalty for willful failure to post.

The general notice needs to include an explanation of FMLA provisions and directions on how to file a complaint with the Wage and Hour Division. The post must be readily accessible and have large enough text so it’s readable by all employees, even if none are currently eligible. Additionally, if a significant number of employees are not fluent in English, it is the duty of the employer to provide the notice in a language that is accessible to them. If desired, the notice can be made available electronically or created internally but must include, at minimum, all of the information contained in the Department of Labor’s Family and Medical Leave Act Poster.

Actions To Avoid Under FMLA 

Interfering with or denying an employee the exercise of any FMLA right can lead to serious legal implications. The following employer behavior is strictly prohibited:

  • Refusing to authorize leave without reasoning
  • Discouraging an employee from using their right to leave
  • Transferring employees from one worksite to another for the purpose of meeting the 50 employee threshold
  • Interfering or changing essential job functions to preclude taking leave
  • Manipulating an employee’s work hours to avoid eligibility or to compensate for missed hours
  • Asking employees to take home work or be available during their leave.
  • Requiring an inappropriate amount of notice beyond the required 30 days or refusing to recognize certified emergency requests that fall below 30 days
  • Discriminating or retaliating against current or prospective employees who have or are attempting to request leave
  • Discharging or harassing employees who have filed a charge, given information, or have testified due to unlawful proceedings under the FMLA

Employees should feel comfortable taking federally granted family or medical leave without fear of retaliation or disciplinary action. The FMLA is a complex regulation that is multifaceted to best cover a variety of situations employers may encounter. Review the Employer’s Guide to The Family and Medical Leave Act from the US Department of Labor in addition to seeking legal counsel for unique leave requests. 

How CFRA Affects Employers 

While FMLA is a federal program covering employers in all states, the California Family Rights Act is a state-based program addressing more specific circumstances California employers may encounter. CFRA has many similarities to the FMLA, but it is important to know the distinction between these regulations.

Employers subject to CFRA include public (state government) and private organizations. In January 2021, CFRA was amended to un-mirror the FMLA’s requirement of 50 or more employees for private organizations. Now, private employers must comply with CFRA if they have 5 or more employees. 

Like FMLA, CFRA allows eligible employees to take up to 12 weeks of unpaid, job-protected leave within a 12 month period for the birth of a child, adoption, or foster care placement of a child, to care for an immediate family member with a serious health condition, or if the employee is unable to work because of a serious health condition. There are several major differences between the two employee leave laws that can make or break an employer’s law abidance. Under CFRA, the following conditions are true: 

  • Pregnancy itself does not qualify as a serious health condition as it does under FMLA. An employee is entitled to a Pregnancy Disability Leave (PDL) of up to 4 months if it interferes with their job functions. 
  • Registered domestic partners are covered in the same way a spouse is covered
  • The definition of “family member” is extended to include a parent-in-law
  • There are no “qualifying exigencies” for an employee’s or their family member’s active military duty

If an employer is covered by both FMLA and CFRA, an employee may take their allotted 12 weeks under both in tandem or at different points in a 12-month period, but not at the same time. This is referred to as “concurrent leave” and ultimately means that these employers must allow a total of 24 months of leave if requested and legally acceptable.

The September 2020 expansion of CFRA under SB-1383 brought some additional nuances (including paternity leave) that are unique instances but could occur. If an employer employs spouses or both parents that require leave to care for a child, they must both be given full leave under CFRA. Prior to the 2020 amends, the law only allowed parents to collectively take 12 weeks. Additionally, the expansion overturned the permission for employers to deny the top 10% of earners their CFRA leave if it was believed that granting it would cause substantial economic damage to the business. The law now requires that 100% of Californian-covered employees are entitled to CFRA leave regardless of their salary. 

For a more comprehensive look into everything that CFRA includes in 2022, refer to the Civil Rights Department of California Fact Sheets. 

Key Takeaways 

If you are an FMLA and CFRA-covered employer in the state of California, ensure you are doing your due diligence to thoroughly understand and provide notice of both policies to your employees. Clear communication and documentation of all requested eligible family or medical leaves can help safeguard your business from detrimental damage. 

If you need any assistance navigating employer duties and rights pertaining to family and medical leave in California, please contact us today. 

DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post. Hackler Flynn & Associates is only licensed to practice in California.

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