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Is Your Employee Legally Entitled to Family or Medical Leave; the Answer May Surprise You
The federal Family and Medical Leave Act ("FMLA") and the California Family Rights Act ("CFRA") provide "eligible employees" working for "covered employers" with time off for the purposes we will describe below. For California employers in particular, understanding whether and how the law applies to your workplace and interacts with other laws can be challenging. 
In this Newsletter we will highlight some of the key shared requirements of the FMLA and CFRA, and also identify some of the quirky ways in which these laws interact with each other and other laws.   
In this Newsletter you will find:
     •     How Can We Help?
Coming in our next issue, we continue to create a Sustainable Leaves of Absence system by exploring pregnancy disability leaves.  If you would like to review last months' newsletter with tips and tools for an overall leaves of absence strategy, click here
Five Questions to Ask Yourself if an Employee Requests What Looks Like FMLA or CFRA Leave
Below are the primary questions to ask yourself in determining whether or not your employee is entitled to the leave he or she requests.  FMLA and CFRA share some fundamental conditions, which are outlined below.  We will highlight some of the important differences between the two laws with underlined text.   Please remember, the regulations for the two laws are extensive, and we cannot anticipate, analyze or address every possible scenario here.   
1.     Are You a "Covered Employer"?  Under FMLA and CFRA, you are a "covered employer" if for at least 20 calendar weeks of the present or preceding calendar year your Company employed 50 or more employees.  If the answer is yes, move on to question 2. 
2.      Is the Requesting Employee an "Eligible Employee"?  In order to be eligible for either an FMLA or CFRA leave the employee must first meet three conditions: (a) the employee must have at least one year of service with the Company (this need not be consecutive service; employment periods prior to a break in service of seven years are not counted except in certain limited circumstances); and (b) the employee must have worked at least 1250 hours in the 12 months preceding the leave and (c) the employee works at a location where at least 50 employees are employed at that location or within a 75-mile radius of that location.  Be careful: An employee can become eligible for FMLA or CFRA during a non-FMLA or CFRA qualified leave.  For example, an employee with 11 months' of employment with the Company would be ineligible for FMLA or CFRA when she begins a workers' compensation leave, but she could become eligible for FMLA or CFRA if she hits her one year anniversary while on the workers' compensation leave.  You will want to be certain to memorialize when a leave becomes an FMLA or CFRA leave if you want the employee to exhaust FMLA and CFRA rights during the concurrent leave. 
3.     Is the Reason for Leave One That is Covered by FMLA and/or CFRA?  There are three leaves available under both FMLA and CFRA, and two more that are available under FMLA. Remember: you should require certification of the need for medical leave, and be sure to allow the employee at least 15 calendar days to provide the certification.
          a.       Leave to care for a newborn child or a child placed with the employee through adoption or foster care.  This leave is frequently referred to as "bonding with baby" leave.  This leave must conclude within 12 months of the birth, adoption or placement.  It may be taken by the mother or the father, or by anyone who is "in loco parentis," which includes those with day-to-day responsibilities to care for and financially support the child.  A biological or legal relationship is not necessary, which means that either under FMLA or CFRA a domestic partner could be eligible for this leave even if not the biological parent.   
          b.       Leave to care for the employee's spouse, child, domestic partner's child or parent who has a "serious health condition."  A "serious health condition" is defined as an illness, injury (including workplace injury), impairment or physical or mental condition that involves inpatient care, including any period of incapacity or any subsequent treatment in connection with that care, or continuing treatment by a health care provider.  Note that under CFRA, leave also must be granted to care for the serious health condition of a registered domestic partner.  Practically, this means that a registered domestic partner could have more time off eligibility in a twelve month period because he/she could exhaust CFRA leave eligibility without exhausting FMLA eligibility. 
        c.       Leave for the employee's own serious health condition, where that condition renders the employee unable to perform the essential functions of the employee's position. Note that under CFRA pregnancy disability is not a "serious health condition."   In practical terms, this means that an employee could take a pregnancy disability leave of up to four months and still have CFRA time available for the purpose of bonding with the baby or one of the other CFRA leaves described in (a) and (b) above. 
In addition to the three leaves above, there are two additional leaves available under the FMLA:  Eligible employees with a spouse, son, daughter, parent or next of kin who are "Covered Service Members" (a current member of the Armed Forces, including a member of the National Guard or Reserves) are eligible for "Qualified Exigency" leave or "Military Caregiver Leave" as defined below: 
        d.     Leave for a "Qualified Exigency"  Under the FMLA, 
employees are entitled to up to 12 weeks of unpaid leave for "any qualifying exigency" arising because the spouse, son, daughter or parent of the employee is on active military duty, or has been notified of an impending call to active duty status, in support of a contingency operation, and experiences the need for time off for one of the following reasons: (1) Short-notice deployment;  (2) Military events and related activities; (3) Childcare and school activities; (4) Financial and legal arrangements; (5) Counseling; (6) Rest and recuperation;  (7) Post-deployment activities; (8) Additional activities. For more detail on what these leaves cover, click here
        e.       Military Caregiver Leave to care for a "Covered Service Member" with a serious illness or injury. 
This leave is available to an eligible employee who is a spouse, son, daughter, parent, or next of kin of a covered servicemember with a serious injury or illness.  Eligible employees may take up to a total of 26 workweeks of unpaid leave during a "single 12-month period" to care for a servicemember who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. A serious injury or illness is one that was incurred by a servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank, or rating. Note, the "single 12-month period" for leave to care for a covered servicemember with a serious injury or illness begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the 12-month period established by the employer for other types of FMLA leave. An eligible employee is limited to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the "single 12-month period." Only 12 of the 26 weeks total may be for a FMLA-qualifying reason other than to care for a covered servicemember. 
4.    Is the Employee Entitled to the Amount of Time Requested?  An eligible employee is entitled to up to 12 weeks' unpaid time off (26 weeks in the case of Military Caregiver Leave) in any "12 month period."  Each company may define its own 12 month period as one of the following: (1) The calendar year; (2) Any fixed 12-month "leave year" (fiscal year or a year starting on an "anniversary" date); (3) The 12-month period measured forward from the date first FMLA leave begins; or, (4) A "rolling'' 12-month period measured backward from the date an employee uses any FMLA leave.  Before granting the leave, ask whether or not the employee has used any FMLA/CFRA leave during the relevant 12 month period.  
5.     Is the Employee Entitled to an Intermittent Leave, if that is Requested.  Employees may request the right to take the leave in increments, for example one-half a day each week for a medical treatment.  Under both the FMLA and CFRA intermittent leave is available when medically necessary for the care of parent, spouse or child (as those terms are defined for each law, see (2) above) or for the employee's own serious health condition.  Under the FMLA intermittent leave is available for qualified exigency leave or military caregiver leave.  Under CFRA intermittent leave is granted for "bonding with baby" in minimum increments of two weeks, except that an employer shall grant a request for a CFRA leave of less than two weeks' duration in these circumstances on any two occasions.  In contrast, under the FMLA intermittent leave is available for bonding with baby only if employer agrees. 
RememberYou need to consider more than the FMLA and CFRA when you are considering a request for time off. If the leave is covered by FMLA/CFRA, is it also covered by another leave, for example Pregnancy Disability Leave or Workers Compensation Leave?  If the leave is not covered by FMLA/CFRA, is the employee nonetheless eligible for another leave, for example Pregnancy Disability Leave or Workers Compensation Leave or time off as a reasonable accommodation of a certified disability?  Stay tuned for more on these leaves in future newsletters.    

 My Employee is Eligible for FMLA or CFRA.  Now What? 
Beyond the threshold eligibility questions, there are administrative questions to ask yourself and best practices to follow.  Here is a checklist of questions to ask yourself once you determine an employee legally is entitled to FMLA or CFRA leave. 

1.     Have You Outlined the Employee's FMLA and CFRA Rights?  Your FMLA/CFRA policy must be in writing.  You must tell an employee in writing if you consider their leave an FMLA/CFRA leave, or it may not count toward the 12 or 26 week entitlement.  You will want to confirm in writing if the leave has been granted, for what period, the effect on benefits and seniority, any reinstatement rights and other conditions described below.  We generally recommend that employers send a letter upon receipt of at the request of a leave and a second letter outlining the terms and conditions of the leave if it is granted.

2.     Has the Employee Verified the Need for a Leave?  The employee's physician should certify that the employee or a relevant family member has a serious health condition that mandates the need for a leave of absence.  You can and in most cases should request verification of other eligibility requirements, such as whether a child was placed for adoption or foster care, or whether the family member is a "covered servicemember." 
3.     Will the Leave be Paid or Unpaid?  The law does not require that FMLA or CFRA leaves be paid.  In California, employees may be eligible for state-provided benefits during a family or medical leave, either State Disability Insurance (SDI) or Family Temporary Disability Insurance (FTDI).  Remember: FTDI, also known as "Paid Family Leave," is a pay supplement like SDI. It is not a leave entitlement, notwithstanding the name. 

4.     May an Employee Apply Accrued Vacation, Sick Leave or Paid Time Off to the Leave?  Must They?  Both FMLA and CFRA allow companies to require employees to apply accrued vacation/PTO or sick time to a leave taken for their own serious health condition and to apply vacation/PTO to other FMLA/CFRA leaves.  Be careful here: to the extent the FMLA/CFRA leave is running concurrently with a workers compensation leave, the application of sick leave must be optional, and to the extent an FMLA leave is running concurrently with a pregnancy disability leave, the application of vacation or paid time off must be optional. 
5.     Will an Employee Continue to Accrue Vacation, Sick or Paid Time Off During the Leave?  The law allows the employer to choose whether or not these time-off benefits will continue to accrue during a leave.  Whatever you choose needs to be applied consistently to all time-off policies. 

6.     Will Insurance Continue During the Leave?  FMLA and CFRA require that the employee remain on the employer's insurance policies as they are during regular employment (FMLA and CFRA require this for a period of up to 12 weeks, and potentially 26 weeks for a Military Caregiver Leave).  Be clear in your handbook about how this continuing coverage interacts with other leaves to create a cap. 

7.     How Will the Leave Affect Seniority and Accrual Rates?  Under FMLA and CFRA, the employer may freeze in time the employee's seniority.  If you want to suspend seniority-based accruals (like moving to a new level of vacation accrual), you need to do so for all time off policies (including during the vacation itself).    
8.    What are the Employee's Rights to Reinstatement?  Under FMLA and CFRA, the employee must be reinstated to the same or an "equivalent" position (meaning virtually identical in terms of pay, benefits, status and other terms) at the conclusion of the leave .  Employees do not have greater rights than they would have had but for the leave, which means that if the employee's employment would have terminated without regard to the leave, the employment may be terminated during the leave. The Company also may deny reinstatement to "key employees" in certain circumstances.  Click here to learn more. 
9.     May You Require and Have You Required That The Employee Provide a Release to Return to Work?  Employees who take leave of absence for their own serious health condition should produce a doctor's note stating that they are able to return to work without the risk of harm to themselves or others.  They should not be allowed to return until they produce such a release. 
10.    Have You Marked Your Calendar With When the Leave Will End?   Be clear on the length you must grant by law or policy and make sure you are following up with the employee near the return date.  You can and should have a policy that states that employees who fail to return on their scheduled return date are considered to have voluntarily resigned.  Be sure to follow your own policy on consequences!
11.     Before You Terminate an Employee Who Has Exhausted a Medical Leave, Have You Considered Reasonable Accommodation?  If an employee has taken all the time allotted by law or your policies for medical leave, you may still need to consider whether the employee is disabled and entitled to additional time off as a "reasonable accommodation." We will discuss reasonable accommodation leaves in a future newsletter. 

Your Turn: Take the Sustainable Workplace Quiz
Felicia and Carrie
FMLA, CFRA and Leaves of Absence 
Felicia has worked full-time in the Carlsbad office of One Hundred Employees Company for two years.  That office has 25 employees.  The Company has 26 employees in its Tijuana office, and 35 employees in its Newport Beach office.  Felicia requests twelve weeks off to care for her domestic partner Carrie when Carrie has a serious health condition that requires Felicia's care. 
Is One Hundred Employees required to grant this leave request?

Assume that One Hundred Employees grants the above leave.  In the same year, Felicia is diagnosed with cancer, and requests intermittent time off (totaling twelve weeks) for chemotherapy.
Is Felicia entitled to this additional leave?
As the cherry on top of her terrible year, in the same year Carrie's son is injured in Iraq and needs Felicia's assistance for his medical care for a period of six weeks.  Assuming Felicia has been granted the two above leaves . . .
Is Felicia entitled to this additional leave?
Does your answer change if Felicia and Carrie were legally married in Maryland? 
To see our thoughts and recommendations, click here

How Can We Help?
Understanding and applying the FMLA and CFRA leave laws can be confusing, and applying the laws incorrectly could have significant impact on the efficiency of and liability for your workplace.  
We are happy to help:
     -     Sustainable Family and Medical Leave of Absence Policies and Practices.  We are happy to work with you to review, draft and implement policies and practices that establish clear and shared expectations on Family and Medical Leave.
     -     Responding to a Request for Leave.  We can provide counsel on how to respond to a request for Family or Medical Leave.
     -     Empowering Your Managers.  How your managers respond to a request for a leave of absence can be the difference between an efficient leave process and the risk of liability.  We can help you train your managers to recognize and respond appropriately to requests for time off. 

Give us a call at 619-906-2400 or send us an e-mail.  We are happy to help.   
Keep an eye out for next month's newsletter, where we will provide more ideas for creating a Sustainable Leaves of Absence system. If you would like to review our prior newsletters with tips and tools for Creating the Sustainable Workplace, click here.

Schor Vogelzang & Chung LLP

Partnering to create your great workplace!

2170 Fourth Avenue, San Diego, CA 92101
P: 619.906.2400 F: 619.906.2401


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