This page exists to help supervisors, advisors and staff to have a reference for understanding employee rights to unpaid and paid leaves for serious health-related conditions. This page contains information, links to pamphlets and forms to facilitate the leave request process.
If you have any questions, please contact the Human Resources Department at firstname.lastname@example.org.
Federal and California State legislatures have passed nearly identical labor laws protecting employee’s right to leave.
These laws (which often run concurrently) are the FMLA (or Federal Family and Medical Leave Act, passed in 1993) and its counterpart, the CFRA (or California Family Rights Act, passed in 1991; it’s the equivalent of the FMLA in California). This page explains the safeguards that both laws provide. There is also some information on pregnancy leave.
There are many laws and regulations on leaves. Please consult the HR Department for guidance on your leave request at email@example.com.
WHAT PROTECTIONS DO EMPLOYEES GET?
As an employee, you are entitled to up to twelve work weeks (60 working days) per twelve month period of unpaid leave for a qualified reason.
Further, it means you have job protection, right to reinstatement (you have the right to return to the same or equivalent position), and it also ensures that your medical benefits continue and are paid for by your employer while you are out. You, however, are responsible to pay for your portion of benefit premiums during your absence. Benefit premiums are typically payable a month in advance.
Both laws also provide anti-retaliation provisions that bar employers from retaliating against employees for requesting or taking leaves of absences. As previously mentioned, in the majority of circumstances, leave may not exceed a total of 12 work weeks in a 12 month leave year.
WILL I GET PAID WHILE I AM ON LEAVE?
No, in California FMLA and CFRA leave is unpaid.
You can, however, receive compensation while on leave by substituting in your accrued PTO days, or by qualifying for wage replacement under the State of California Disability Insurance Program, or the paid family leave program (if you qualify). Also, full-time employees may elect long-term disability insurance which traditionally provides benefits after 90 days of disability, if you qualify.
WHAT ARE THE REQUIREMENTS?
First, you must qualify, which means you must be taking the leave for one or more of the following reasons:
- You (the employee) have a serious health condition that makes you unable to perform one or more of the essential functions of your position (Note: CFRA’s definition of “serious health condition specifically excludes disability caused by pregnancy, childbirth or related medical conditions);
- (CFRA only) To care for your spouse, child, parent, or registered domestic partner, if such individual has a serious health condition;
- The birth of your child and to take care of your child following birth (usually referred to as baby-bonding leave);
- You have recently welcomed a child through adoption or foster care;
- (FMLA only) For prenatal care, pregnancy-related illnesses, and childbirth;
- (FMLA only) You have a qualifying exigency arising out of the fact that your family member is on covered active duty in the armed forces, or has been notified of an impending call or order to covered active duty; or
- (FMLA only) If you are the spouse, child, parent, or next of kin of the military member, to care for a covered military member with a serious injury or illness.
Second, you must be eligible, this means you:
- Must have worked for your employer for at least one year before the start date of your leave;
- Must have worked for your employer for at least 1250 hours during the twelve months immediately before the start of your leave; and
- Must be employed at a worksite where your employer employs fifty or more employees within a seventy-five-mile range of that worksite (definition of “employees” includes people that are part-time or are currently on leave). *This CFRA rule was amended as of January 1, 2018, and now only requires at least 20 employees within 75-mile radius for bonding time.
Third, the laws must cover your employer. To be covered, the employer must have at least 50 employees for each working day during each of the twenty or more calendar workweeks in the current or preceding calendar year.
WHAT IS A SERIOUS HEALTH CONDITION?
It is an illness, injury (including a workplace injury), impairment, or physical or mental condition that involves either: in-patient care (hospital, hospice, residential medical care facility) or continuing treatment by a healthcare provider.
Usually, unless there are complications, minor ailments such as the flu, common cold, earaches, headaches, small ulcers, stomach flu, and routine dental problems, are not deemed to be “serious health conditions.”
On the other hand, the flu has been considered a “serious health condition” in circumstances where the legal definition is met, such as in situations where there is incapacity of more than three days and at least one visit to the doctor for treatment. Mental illness may be considered a “serious health condition.”
HOW DO I MAKE A REQUEST?
The Company needs to be aware of your need for leave to trigger the necessary protections of federal and state law. You should provide notice at least thirty days in advance of the leave when the necessity is reasonably foreseeable.
If it is not reasonably foreseeable, notice should be provided “as soon as practicable” under the facts and circumstances.
TIP: When possible, you should do the following:
- 1. Submit a doctor’s note or medical certification form (there is no requirement that you use a specific form) to your advisor or to your supervisor or to the Human Resources Department.
- 2. Get the information to your advisor or to your supervisor or to HR in writing: ideally, an email, fax, or take the note directly to HR (keep a copy for your records).
CAN MY EMPLOYER REQUIRE MEDICAL CERTIFICATION?
The Company can require that you provide medical certification from a health care provider substantiating your need for leave. If the Company decides that you must provide certification, then it must inform you of that in writing and it must state what the consequences are for failing to provide the certification.
Under federal law, you must provide the certification within 15 days of the request by your employer. Under state law, your employer may require that you provide medical certification no less than 15 calendar days after the request.
Failure to provide certification may be excused when it is not practicable under the circumstances despite good faith efforts. For example, if you are unconscious in a hospital. Extenuating circumstances may also be sufficient to excuse a missed deadline for providing certification.
WHAT DOES THE MEDICAL FORM NEED TO STATE?
To sufficiently trigger leave protections, the certification must state:
1.) The doctor’s name, address, telephone number, fax, number, medical practice or specialization,
2.) The approximate date the medical condition started,
3.) The probable duration, and
4.) That the patient (if it is you) is unable to perform the essential functions of his/her job due to the serious health condition.
Note: Employers CANNOT inquire about the symptoms or the underlying diagnosis, nor can they request that you provide medical records under California law.
WHAT IF THE MEDICAL CERTIFICATION IS INCOMPLETE?
If the medical certification is incomplete, meaning mandatory entries are missing, or the information provided is vague, ambiguous, unresponsive, then your employer must notify you in writing that it is incomplete/insufficient and to state the additional information that is required to fix it. Your employer must provide you with at least seven calendar days to provide the information.
CAN ADDITIONAL OPINIONS BE REQUESTED?
The Company has the right to send you to another doctor to get another opinion regarding the medical condition at the expense of the company. If the first and second opinion conflict, it can request a third opinion from another doctor that will be binding.
The Company can also require a fitness for duty as a condition of your return to work.
CAN I EXTEND MY LEAVE ONCE MY 12 WEEKS ARE UP?
Serious Health Conditions: Once the 12 weeks have expired you can get more leave as a reasonable accommodation under the California Fair Employment and Housing Act or the Federal Americans with Disabilities Act. Under such a situation you will not have job protection, but you will still be protected from retaliation and discrimination.
Injured Family Members on Active Duty: Eligible employees can take up to twenty-six weeks of leave under the FMLA in a 12-month period, to care for a family member that was injured while on active duty in the United States Armed Forces.
Pregnancy: A birth parent can take leave under the Family and Medical Leave Act (runs concurrently with California’s Pregnancy Disability Leave Law) for twelve weeks and then may take an additional twelve weeks to bond with the newborn baby under the CFRA.
CAN I TAKE INTERMITTENT LEAVE?
In most circumstances, an employee may take leave on an intermittent basis so long as it is “medically necessary.” There is no requirement that it be taken in one continuous block. For example, it can be taken in separate blocks or as a reduced work schedule (i.e., full-time to part-time) as long as there is a single qualifying reason (such as planned medical treatment). The employee must make a “reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations.”
DO I HAVE A RIGHT TO RETURN TO WORK WHEN MY LEAVE ENDS?
Yes, you have a right to be restored or reinstated to the same, equivalent, or comparable position.
WHAT IF I CANNOT BE REINSTATED TO THE SAME POSITION?
If you cannot be reinstated to the same position you had before the leave (i.e., maybe the position has been eliminated entirely), you are entitled to an equivalent position which is:
1.) Virtually Identical – same perks, privileges, and status as the previous position. This means the same:
- Pay: same or equivalent pay, same unconditional pay increases, same discretionary and non-discretionary bonuses unless they are tied in with the achievement of a goal;
- Shifts & Schedule: Ordinarily entitled to return from leave to same shift or same or an equivalent schedule;
- Location: Must be geographically proximate work site (no significant commuting in time or distance) from where you previously worked; employee benefits: same or equivalent benefits (i.e., health insurance, group life insurance, PTO, disability insurance, education time) as before leave, unless entire workforce has had benefits changed while you were on leave, and
2.) “Same or Substantially Similar” – with regards to duties, responsibilities, skill effort, responsibility, authority.
IS MY EMPLOYER REQUIRED TO POST MY RIGHTS?
Yes, covered employers must post your leave rights and information about filing complaints.
Your employer must also notify you by either: 1.) providing details of benefits and leave rights in written materials or the employee handbook, or 2.) distribute a copy of the notice to each new employee upon hiring.
CAN I WAIVE MY RIGHT TO LEAVE?
No, an employee cannot waive his/her rights, and the Company cannot encourage an employee to waive his or her rights under the law.
CAN MY GROUP HEALTH INSURANCE BE CUT OFF?
No, the Company must maintain your group health insurance coverage while you are on leave at the same level and on the same conditions as when you were working. If your health insurance coverage includes a spouse or registered domestic partner and/or dependents, then your the Company would have to maintain insurance for them as well while on leave. Also, any dental or vision insurance would also continue to be maintained.