What are FMLA and CFRA?
FMLA stands for Federal Family and Medical Leave Act. CFRA stands for California Family Rights Act. Both acts represent Federal and State laws that allow eligible employees to take up to 12 work weeks of unpaid leave during any 12 month period.
What are the acceptable reasons for taking a leave of absence?
For FMLA reasons will include a serious health condition of the employee, child, spouse, or parent; the birth of a child of the employee, placement of a child for adoption or foster care. This includes any period of incapacity due to pregnancy, including prenatal examinations or severe morning sickness.
CFRA works the same as FMLA, except that CFRA also allows for care of a registered domestic partner and excludes pregnancy. For pregnancy, California allows up to 4 months of Pregnancy Disability Leave (PDL) pursuant to the California Fair Employment and Housing Act for all employers with five or more full or part time employees. PDL is for any women hindered due to pregnancy, childbirth, or a related medical condition. This includes prenatal care and severe morning sickness
Federal Family and Medical Leave Act (FMLA) for Covered Employers
Covered Employers are those who engage in activity affecting commerce and employ 50 or more employees in 20 weeks of current or preceding year. Public agencies and private elementary and secondary schools are covered regardless of the number of employees.
California Family Rights Act (CFRA) for Covered Employers
Covered Employers are those who engage in business or enterprise in California and employ 50 or more employees in any 20 weeks of current or preceding calendar year. California, counties, and any political or civil subdivision of the state and cities are covered regardless of the number of employees.
FMLA and CFRA for Covered Employees
Covered Employees are employed with the employer for at least 12 months (need not be consecutive months), worked at least 1,250 hours during the 12 month period immediately preceding the leave, and employed at a worksite where 50 or more employees work within a distance of 75 surface miles.
What are the posting requirements?
An FMLA and CFRA notice explaining entitlements of leave and procedures for filing a complaint with the Department of Labor, Wage and Hour Division must be posted in a conspicuous place where applicants and employees tend to congregate.
Can the employer request medical certification?
FMLA and CFRA. An employer can request medical certification from the employee. The employer can ask for a second and even third opinion to verify the validity of the medical certification. However, under CFRA, a second or third medical opinion cannot be requested regarding the care of an employees family member. The employer must accept the certification
What is the employer’s obligation to designate or deny leave?
For both FMLA and CFRA it is the employer’s obligation to designate or deny leave, in writing and indicate if leave is paid or unpaid. Designating leave must be done prospectively and not retroactively unless the employer lacks sufficient information as to the reason for leave.
FMLA and CFRA allowed time off
For FMLA, up to 12 weeks in an established 12 month period is allowed. Intermittent leaves or a reduced work schedule may be taken when medically necessary. CFRA is the same as FMLA with the exception that leave(s) taken for the birth, adoption, or foster care placement shall be granted at a minimum of two week increments. On two occasions increments of less than two weeks may be used.
FMLA and CFRA leave will run concurrently, except in the case of a leave taken for disability due to pregnancy, childbirth or a related medical condition in the State of California which is covered separately under the California Pregnancy Disability Leave.
How to determine paid or unpaid leave.
FMLA and CFRA is unpaid, however, an employee may choose or the employer may require substitution of unpaid FMLA with vacation or other accrued time off and/or sick pay to the extent the circumstances meet the employer’s typical policy for the use of sick pay.
Does the group health coverage continue while the employee is on leave?
For both FMLA and CFRA, the employer must continue any group health plan for the duration of FMLA leave, at least 12 weeks in a 12 month period, under the same conditions as if the employee was actively working. Longer health plan coverage or other benefits are determined by the employer’s policy to the same extent and under the same conditions as would apply to any other leave. Employees are still responsible for their share of benefit premium payments.
What happens when the employee returns from leave?
For both FMLA and CFRA, the employee must be reinstated to the same or equivalent position at the end of leave. However, the employee has no greater right to reinstatement, benefits, or to other conditions of employment than if he or she was continuously employed during FMLA leave. The exception to this is for salaried key employees, defined as the highest paid 10% of all employees. If denial is necessary to prevent serious economic harm to the employer, then the employee needs to be properly notified.
The above is a brief summary of information pertaining to FMLA & CFRA and not a complete description of all rules and regulations. As rules and regulations are subject to change we cannot verify that all information is current or completely accurate. HCP National provides educational programs to assist our clients in risk management through compliance with various applicable federal laws, rules and regulations; however, this is neither an effort to practice law or a legal service. We encourage everyone to consult with their own attorney, certified public accountant and tax professional on any issues involving specific facts, persons, circumstances or situations.
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