Family Leave Discrimination (FMLA/CFRA)

Employers are prohibited from discriminating against employees who utilize their right to family medical leave. The FMLA and CFRA provide that a full-time employee with at least 12 months consecutive service may take a period of up to 12 weeks of unpaid leave for the purpose of personal medical leave (such as

pregnancy or other serious medical conditions) or family medical leave (such as to care for parent or other immediate family member) without being terminated, demoted or otherwise discriminated against. However, many employers are notorious for violating CFRA and FMLA laws in Southern California.

The Family Medical Leave Act

The Family and Medical Leave Act offers employees up to 12 weeks of unpaid leave from their jobs every year for certain qualifying health conditions.

Employees qualify for FMLA leave when either they or a family member suffer from a “serious health condition.” The condition must either prevent the worker from performing his or her job, or require the worker to care for a family member. Employees can use FMLA for:

1. Pregnancy, prenatal issues, or the adoption/fostering of a child
2. Chronic conditions such as diabetes, epilepsy, etc.
3. Long-term conditions such as cancer, Alzheimer’s disease, etc.
4. Hospitalization and ongoing treatments such chemotherapy, dialysis, etc.
   
   

The FMLA has many restrictions and requirements. To be eligible, employees must have worked for their employer for more than 12 months and worked at least 1,250 hours during the previous year.

Employers with less than 50 people within 75 miles of their employee’s worksite are not required to provide FMLA leave to their employees. This regulation was enacted to accommodate small business owners who would have difficulty maintaining open employment positions while key employees were on leave.

FMLA leave is often categorized by the amount and schedule of leave as (1) Continuous leave; (2) Intermittent leave; or (3) Reduced schedule leave.

When returning from FMLA leave, employers must return employees to their former position, assuming they are able to perform the essential functions of that position. If the employee is no longer able to perform his or her previous job, an alternative position with the same benefits, salary, and work hours must be provided to the disabled employee.

It is an employer’s responsibility to provide the necessary FMLA paperwork to its employees if a need for leave is expressed. FMLA guidelines outline the forms legally needed to take FMLA leave, and most employers add their own additional paperwork or notification policies.

The California Family Rights Act 

An employee under the California Family Rights Act (“CFRA”) is entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following reasons:

• Birth of a son or daughter of the employee, in order to care for the son or daughter.
• Placing the son or daughter with the employee for adoption or foster care.
• To care for a spouse, son, daughter, or parent of the employee if the spouse, son, daughter, or parent has a serious health condition. CCR 7297.0(h).
  
  

Under CFRA and California law “domestic partners” have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses. Cal. Fam. Code § 297.5. Therefore spouses and domestic partners have the same rights to leaves of absence to care for domestic partners or spouses who have a serious health condition.

Under CFRA an employee is not required to take their leave of absence all at one time. The employee is allowed to take the leave intermittently or on a reduced leave schedule. Intermittent leave is leave taken in separate blocks of time. A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee’s schedule for a period of time, normally from full-time to part-time. 2 CCR 7297.3.

For an employee to receive leave covered under FMLA/CFRA from his or her employer, the employee must give the employer notice, either verbal or written. 2 CCR 7297.4. The employee’s notice must let the employee know the reason for the leave that is covered by FMLA/CFRA (serious health condition; birth of child or adoption or foster care of child; taking care of spouse, child, or parent with serious health condition.; or emergency because child, spouse, or parent is on active duty with Armed Forces.). 29 CFR 825.302. The notice must also contain the timing and duration the employee anticipates the leave to take up. 29 CFR 825.302.

When an employee comes back from CFRA leave, they are entitled to be reinstated by the employer to their same position or an equivalent position. Cal. Gov. Code § 1245.2(a). The equivalent position is to have “equivalent employment benefits, pay, and other terms and conditions of employment.” 29 USCS § 2614. Under CFRA the employer must also provide the employee with a written guarantee saying that the employee will be reinstated after his or her leave to the same position or a comparable position. 2 CCR 7297.2.

Pregnancy Leave

The Fair Employment and Housing Act (FEHA) contains provisions relating to pregnancy leave and covers all employers with five or more employees. Under FEHA, it is unlawful for an employer to discriminate in terms of compensation, conditions, or privileges of employment because of pregnancy. In addition, there are certain leave and transfer protections and guarantees provided under the FEHA and the California Family Rights Act (CFRA).

All employers must provide information about pregnancy leave rights to their employees and post this information in a conspicuous place where employees tend to gather. Employers who provide employee handbooks must include information about pregnancy leave in the handbook.

Leave Requirements

• An employee disabled by pregnancy is entitled to up to four months disability leave. If the employer provides more than four months of leave for other types of temporary disabilities, the same leave must be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition.
• Leave can be taken before or after birth during any period of time the woman is physically unable to work because of pregnancy or a pregnancy-related condition. All leave taken in connection with a specific pregnancy counts toward computing the four-month period.
• Pregnancy leave is available when a woman is actually disabled. This includes time off needed for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, or any related medical condition.
• If an employee is disabled as the result of a condition related to pregnancy, childbirth, or associated medical conditions and requests reasonable accommodation upon the advice of her health-care provider, an employer must provide reasonable accommodation.
• As an accommodation, and with the advice of her physician, an employee can request transfer to a less strenuous or hazardous position for the duration of her pregnancy.
• Employees are entitled to take pregnancy disability leave in addition to any leave entitlement they might have under CFRA. For example, an employee could take four months pregnancy disability leave for her disability, and 12 weeks CFRA leave to bond with the baby; to bond with an adopted child; or to care for a parent, spouse, or child with a serious health condition. CFRA leave may also be taken for the employee’s own serious health condition.
• If possible, an employee must provide her employer with at least 30 days advance notice of the date for which the pregnancy disability leave is sought or transfer begins and the estimated duration of the leave.
• If 30 days advance notice is not possible due to a change in circumstances or a medical emergency, notice must be given as soon as practical. The leave may be modified as a woman’s changing medical condition dictates. If a woman desires to return earlier than agreed, an employer must reinstate her within two business days of her notice.
  
  

Salary and Benefits During Leave

Employers who provide health insurance coverage for employees who take leave for non-pregnancy-related, temporary disabilities must provide coverage for employees who take leave for pregnancy, childbirth or related medical conditions.

An employer may require an employee to use her accrued sick leave during any unpaid portion of her pregnancy disability leave. The employee may also use vacation leave credits to receive compensation during an otherwise unpaid portion of her pregnancy disability leave. An employer may not require an employee to use vacation leave or other accrued time off during pregnancy disability leave.

Free Initial Consultation and Case Evaluation

Chami Law represents both individuals and groups of employees who have been victimized by their employers. If you believe that you have been the victim of unlawful employment discrimination or another wrongful practice in the workplace, contact the offices of Chami Law for a free consultation regarding your rights, toll free at 888-384-7225 or by email at info@chamilaw.com.