While some states, like Texas, allow for the federal government to deal with the issue of medical leave, California is not one of those states.
Under certain circumstances, full-time employees across the US are allowed to take medical leave from their job for 12 weeks without fear of losing it under the Family and Medical Leave Act (FMLA). Workers in California are also protected under the California Family Rights Act (CFRA).
Under the FMLA, California employees may take up to 12 weeks off for medical issues, such as to provide care for an immediate family member or to care for a new child. The FMLA in California and other states provides much as 26 several weeks off to tend to a member of the military without fear of losing their job or receiving a pay cut due to nonattendance. Leave under the FMLA in California can be non-successive weeks, days or hours over a rolling 12-month period.
There is a significant amount of overlap between the FMLA and CFRA. Both laws apply to private employers with 50 or more workers on the payroll during any 20 or more weeks in the current year or last 12 months and public businesses, despite the size of staff, including workers on the payroll who did not receive compensation, part-time workers, commissioned workers and workers on leave who are expected to return to active employment – but not laid off workers.
In administering the FMLA in California, a company designates a worker’s leave as family/medical leave. If this designation is not made and the employee not notified, the leave cannot typically retroactively count towards employee’s leave entitlement.
If a worker takes intermittent or a decreased-schedule leave under FMLA in California, a company can demand that the employee, for the time being, transfer to a job more appropriate to that schedule. A company can also call for medical proof for a worker taking FMLA leave for their own severe illness or to take care of a family member, not including the time to bond with a newborn or adopted child. Medical privacy laws restrict the kind of data a company can require on such certification.
While California FMLA leave is unpaid, workers can use accrued paid sick or vacation leave instead of the normally unpaid time off under FMLA. Workers who are participating in company insurance benefits can continue receiving this benefit throughout their family/medical leave.
When the employee off through FMLA in California comes back to work, they must come back to the same or a comparable position – with exceptions in extremely limited circumstances as laid out by California law. Under FMLA, workers must come back to the same level of compensation, but not necessarily the same job.
According to the California Chamber of Commerce, a “comparable position” means employment within a position almost identical to the original position with regards to pay, benefits, status and working environment. Upon returning, the worker should have identical or highly-comparable duties and responsibilities, which require equivalent levels of skill, effort, responsibility and authority. The job must also be at the same or a geographically close worksite. In most situations, the employee must come back to the same shift or the same or an equivalent work schedule.
California: FMLA and the CFRA Differences
One of the biggest differences between the FMLA and the CFRA is the consideration of pregnancy as a “serious health condition.”
Pregnancy leave is essential provided that a woman is physically disabled by her pregnancy, childbirth, or a related medical problem. This can include time off necessary for prenatal care, significant morning sickness, doctor-ordered rest, childbirth, recuperation from childbirth, and any other associated medical condition. The employee does not have to be totally incapacitated or restricted to her bed to be considered disabled by pregnancy. Generally speaking, a woman must be incapable of performing one or more necessary functions of her job without unnecessary risk to herself or to other persons or without undue risk of pregnancy complications. A woman’s physician or health care provider establishes if she is impaired by pregnancy or a related medical condition.
While pregnancy disability is covered under the FMLA, it is not under the CFRA. However, pregnancy is covered under California’s pregnancy disability leave (PDL), which allows for up to 4 months of paid leave for women physically unable to work due to pregnancy. The employees can be paid provided they have been paying into the state disability insurance program. A worker on PDL can get up to 55 percent of their income. In addition to 12 weeks of PDL, an eligible employee can also take a 12-week “baby bonding” leave through CFRA.
Another difference between FMLA in California and CFRA is in how the laws deal with domestic partners. Domestic partners do not fall under the FMLA in California, but the CFRA does cover partners as if they were spouses. The state’s official website does point out that a domestic partner might also have FMLA leave, meaning they could have an extended absence compared to other states.
Another difference involved the FMLA stipulation of a “qualifying exigency” due to a family member’s impending or active duty. This part of the law provides for up to 12 weeks of leave to care for an urgent need related to military duty, such as the care for a service member’s ailing child. This type of leave is not covered under the CFRA, meaning CFRA leave cannot be exhausted in this situation.
The final primary difference between California’s FMLA and CRFA administrations regards the care for a sick family member who serves in the military. The family member might be seriously ill, or injured in the course of serving their country. While both laws cover this type of situation, the FMLA includes “next of kin” while CFRA does not.
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