CFRA and FMLA Rights 2023
Starting on January 1, 2023, California has implemented new laws regarding the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA). The new CFRA amendments have expanded the reach of the law to cover more employees and add additional reasons for protected leave.
These amendments apply to employers with five or more employees. With these changes, employees who have worked at least 12 months and at least 1,250 hours within the last year are guaranteed up to 12 weeks of job-protected leave.
This leave can be taken for several reasons, including the employee’s own serious health condition, the serious health condition of an immediate family member, or to care for a newborn or newly adopted child.
The FMLA also applies to employers with five or more employees in California starting on January 1, 2023. With FMLA, employees who have worked at least 12 months and at least 1,250 hours within the last year are eligible for up to 12 weeks of job-protected leave.
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Understanding CFRA and FMLA
What are CFRA and FMLA
CFRA and FMLA are laws that provide job-protected leave to qualified employees for specific reasons, such as medical or family-related issues. The California Family Rights Act (CFRA) provides leave for these reasons to employees working in California, while the Family and Medical Leave Act (FMLA) applies to employees in the United States.
Key Differences Between CFRA and FMLA
One of the main differences between CFRA and FMLA is that CFRA regulations are state-based and only apply to employees in California, while FMLA is a federal program that applies to employees across the United States. Additionally, eligibility requirements for each law differ slightly.
For example, under FMLA, simply being pregnant qualifies an employee for leave, while CFRA only covers time off for pregnancy complications. Also, being covered as a domestic partner under FMLA is more difficult than under CFRA.
Eligibility Requirements for CFRA and FMLA
To be eligible for leave under CFRA or FMLA, employees must meet certain conditions. In California, employees must have worked for a covered employer for at least 12 months and have worked for at least 1,250 hours during the previous 12-month period to qualify for CFRA leave.
For FMLA, employees must have worked for a covered employer for at least 12 months and have worked for at least 1,250 hours during the previous 12-month period. Additionally, the leave must be for a qualifying reason as specified under each law, such as the birth or adoption of a child, a serious medical condition, or to care for a family member with a serious health condition.
Qualifying Events for Taking Leave
Medical Reasons
Under CFRA and FMLA, employees are entitled to leave for medical reasons for themselves or their immediate family members. Qualifying reasons include serious health conditions, illnesses, injuries, or disabilities that prevent the employee from performing their job or require them to care for a family member.
To be eligible for leave, the employee or their family member must receive medical care from a licensed healthcare provider.
Family Care and Bonding
Both CFRA and FMLA provide leave for family care and bonding with a newborn, newly adopted or fostered child, or placement of a child for adoption or foster care. The amount of time off varies depending on the program and circumstances.
Under FMLA, eligible employees are entitled to up to 12 weeks of unpaid leave in a 12 month period, while CFRA provides up to 12 weeks of leave in a 12 month period for the birth, adoption, or foster care placement of a child, as well as for the care of a child, spouse, or parent with a serious health condition.
Military Family Leave and Covered Servicemember
Qualifying reasons for military family leave and covered servicemember under CFRA and FMLA include qualifying exigencies related to a family member’s covered active duty or call to covered active duty status in the Armed Forces, as well as leave to care for a covered servicemember with a serious injury or illness. Eligible employees can receive up to 26 workweeks of leave under FMLA to care for a covered servicemember and up to 12 weeks of leave under CFRA for qualifying exigencies or to care for a covered servicemember.
Length of Leave Time and Job Protection
Length of Leave Time
Under CFRA and FMLA, employees are entitled to take up to 12 weeks of unpaid leave per year for certain family and medical reasons, including the birth or adoption of a child, caring for a seriously ill family member, or recovering from one’s own serious health condition. Additionally, under CFRA and FMLA, employees may also take leave for military exigencies and to care for a covered servicemember.
However, there are some differences between the two laws. CFRA applies only to employers with 50 or more employees, while FMLA covers employers with at least 50 employees within a 75-mile radius.
FMLA also allows for an additional two weeks of leave for pregnancy-related disabilities, and up to 26 weeks of leave to care for a covered servicemember with a serious injury or illness.
Job Return or Equivalent Position
The FMLA and CFRA both provide job protection to eligible employees who take leave. Under these laws, an employer must restore an employee to the same or an equivalent position upon return from leave, with the same pay, benefits, and other terms and conditions of employment.
However, there are some exceptions to this rule, such as when an employee would have been terminated or laid off regardless of taking leave. It is important to note that an employee’s job protection under FMLA and CFRA can be different, depending on the employer and the specific circumstances.
As such, employees should consult with an experienced employment lawyer to understand their rights and protections under these laws.
Intermittent Leave or Reduced Work Schedule
If an employee needs to take time off from work due to a serious health condition or to care for a family member with a serious health condition, they may use intermittent leave or reduced work schedule under CFRA and FMLA. This means they can take leave in blocks of time or work reduced hours as needed.
Intermittent leave can also be used for situations where the need for leave is unpredictable, such as for doctor’s appointments or unexpected flare-ups of a chronic condition.
In order to use intermittent leave or reduced work schedule under CFRA and FMLA, the employee must meet certain eligibility requirements. Under CFRA, the employee must have worked for a covered employer for at least 12 months and have worked at least 1,250 hours in the 12-month period before the start of the leave.
Under FMLA, the employee must have worked for their employer for at least 12 months and have worked at least 1,250 hours in the 12-month period before the start of the leave.
The amount of leave an employee can take depends on their specific situation and the reason for the leave. For example, an employee may only need to take a few hours off each week for a few weeks, or they may need to take full days off intermittently over a longer period of time.
Employers are required to work with employees to come up with a schedule that works for both parties while still meeting the needs of the employee and the business.
It’s important for employers and employees to understand their rights and obligations under CFRA and FMLA when it comes to intermittent leave or reduced work schedule. While it can be challenging to balance the needs of the business with the needs of the employee, it’s critical to ensure that employees are able to take the time they need to care for themselves or their family members.
Compensation During Leave
How Paid Leave Works
Under CFRA and FMLA, covered employees who meet eligibility requirements can take up to 12 weeks of leave in a 12-month period for qualifying reasons, such as the birth of a child, to care for a family member with a serious health condition, or due to the employee’s own serious health condition. During this leave, eligible employees may be entitled to receive compensation.
Paid leave under CFRA and FMLA generally requires the use of an employee’s accrued paid time off, such as sick leave or vacation time. Employers may also require employees to use any applicable state disability insurance (SDI) benefits or workers’ compensation benefits during their leave.
If an employee does not have any accrued paid time off, they may take unpaid leave under CFRA and FMLA, but they will not receive compensation during this time.
Non-Paid Leave
If an employee exhausts their accrued paid time off or does not have any, they may be eligible for non-paid leave under CFRA and FMLA. Non-paid leave allows employees to take additional time off work without pay.
To obtain non-paid leave, employees must meet the eligibility requirements, provide notice to their employer in advance, and provide certification of the need for leave.
While employees taking non-paid leave do not receive compensation from their employer, some may be eligible for state disability insurance (SDI) benefits or workers’ compensation benefits during their leave, depending on the reason for their leave and other eligibility requirements.
Maintenance of Health Benefits
Employees entitled to leave under CFRA and FMLA are entitled to maintain their group health insurance benefits while on leave. The employer must maintain the employee’s health benefits at the same level and under the same conditions as if the employee had continued working.
The employee is responsible for paying his or her portion of the cost for maintaining health benefits, and the employer may recover a portion of the premium if the employee fails to return to work after the leave period.
It is important for employees to understand their rights and responsibilities regarding their health benefits during their leave under CFRA and FMLA. They should communicate with their employer to ensure that their benefits are maintained and that any necessary payments are made.
Failure to maintain health benefits during leave can have a significant impact on an employee’s overall financial stability and wellbeing.
Reinstatement and Returning to Work
After taking leave under CFRA and FMLA, employees are entitled to return to their same or equivalent job positions. This means that employers are required to offer the same job position with the same pay, benefits, and working conditions as before the leave.
The only exception to this is if the employer can prove that the job position would not have been available even if the employee had not gone on leave.
Employers are also required to reinstate employees to their previous job positions or an equivalent position upon their return from leave. This means that employers cannot terminate, demote, or take any other adverse action against employees for taking leave under CFRA and FMLA.
Employees who are unable to perform the essential functions of their job positions upon their return from leave may be entitled to reasonable accommodations under the Americans with Disabilities Act (ADA) and/or California Fair Employment and Housing Act (FEHA). Reasonable accommodations may include modified work schedules, ergonomic equipment, or job restructuring.
Requesting CFRA and FMLA Leave
Employees who qualify for CFRA and FMLA leave can request time off for various reasons, including the birth or adoption of a child, to care for a family member with a serious health condition, or if they have a serious health condition themselves. To request CFRA and FMLA leave, employees must follow some basic procedures:
Notify your employer
An employee must notify their employer in advance of their need to take leave under CFRA and FMLA, except in cases where Advance notice is not possible. This notification should include information about the expected duration of the leave and the reason for the leave.
Provide supporting documentation
An employee must provide their employer with medical certification supporting a request for CFRA and FMLA leave within 15 calendar days of the employer’s request for certification. In some cases, employers may require a second or third medical opinion at their expense.
Allowable forms of leave
CFRA and FMLA leave can be taken intermittently or as a reduced work schedule. This means that employees can work part-time and still take CFRA and FMLA leave for the remainder of their scheduled hours if their employer agrees to it.
Leave periods for both types of leave are typically unpaid, but some employers may allow you to use paid time off.
Employer requirements
To be eligible for CFRA or FMLA leave, the employee must work for an employer who has at least 50 employees or be a public agency, have worked for the employer for at least 12 months, and have worked at least 1,250 hours in the 12 months before starting leave.
By following these procedures, employees can request CFRA and FMLA leave and receive the support they need during a difficult time, without fear of retaliation from their employer.
Conclusion
Overall, it is important to understand the key differences between CFRA and FMLA. While both laws provide unpaid, job-protected leave for certain qualifying reasons, CFRA is California-specific and has additional provisions, such as bereavement leave.
Eligibility requirements also differ slightly between the two laws. To obtain CFRA and FMLA leave, employees must provide notice and certification to their employer.
It is also important to note that employees may be eligible for both CFRA and FMLA leave concurrently, up to a total of 24 weeks in a single year. By understanding these laws and following proper procedures, employees can ensure job protection while taking necessary leave for themselves or their loved ones.
