FMLA Quiz (All Employers)

Basis for Wrongful Discharge Claims

An employee may file a wrongful discharge claim, asserting a violation of public policy under CFRA.

Birth or Adoption of a Child

CFRA has unique allowances regarding time and manner in which leave is taken involving birth, adoption or placement in foster care. CRFA provides that a minimum duration of such leave is two weeks. In addition, the employer must grant requests for leave in increments of at least one day, but less than two weeks, on two separate occasions.

Expanded Sick Leave ('Kin Care') (Cal. Lab. Code §233)

All private and public employees are allowed to use accrued sick leave to care for a sick child, parent, spouse or domestic partner. (The statute does not limit the definition of illness.) This law is not linked to the CFRA or the FMLA, but it states that it does not extend the maximum period of leave that an employee is legally entitled to under those laws, regardless of whether an employee receives sick leave compensation during leave. If the leave qualifies for FMLA or CRFA protection, paid leave under the code would run concurrently with leave offered by state and federal laws. Annual sick leave available for "kin care" must be at least half of what the employee accrued in one year. Any remaining sick leave may be restricted for use for employee's own illness. Sick leave does not include any benefit provided under an employee welfare benefit plan and does not include any of the following benefits: insurance, workers' compensation, unemployment compensation disability or a benefit not payable from the employer's general assets. If an employer does not allow an employee to use accrued sick leave for "kin care" or otherwise interferes with an employee's right to use sick leave in this way, the employee is entitled to reinstatement (if terminated) and actual damages or one day's pay, whichever is greater. If an employer provides sick leave for its workers, the law's mandates must be followed. Employers may change their existing sick leave policies. Employers who have uncapped sick leave plans are not subject to the "kin care" provision of §233, under a California Supreme Court ruling.

Crime Victim Leave

An employee who is a victim of a crime or is required to serve on a jury may be entitled to crime victim leave. An employee who is a victim of sexual assault or domestic violence may take leave to obtain injunctive relief. Advance notice should be given when feasible and certification should be provided to the employer within a reasonable time after absence. An employee may use compensatory leave when applicable. An employer with more than 24 employees must allow employees who are victims of crime to take additional leave for medical attention, psychological counseling and safety planning. Advance notice should be given when feasible and certification should be provided to the employer within a reasonable time after absence. Compensatory leave may be used when applicable. An employee may also take leave to attend a judicial proceeding of an immediate family member who was a victim of a violent or serious felony or a felony relating to theft or embezzlement. Immediate family includes spouse, child, siblings, parents and step-relatives. Advanced notice should be given and compensatory leave may be substituted.

Family and medical care leave is allowed for the following reasons:

Birth or adoption of a child, or placement of a foster child. Serious health condition of a spouse, child, or parent. Employee's own serious health condition.

Enforcement Mechanismss

CFRA can be enforced through administrative or court action. A case brought before the FEHC (Federal Employment and Housing Commission) may be ordered by the commission to reinstate employee with back pay. The FEHC may also award actual damages for conditions relating to pain and suffering, mental anguish or other causes of up to $50,000 and assess civil penalties of up to $25,000. Disputes litigated in a court of law may be awarded unlimited damages, attorney's fees and compensatory damages.

Leave for both Parents

Each parent is eligible for up to 12 weeks of CFRA family leave for the birth, adoption or foster care of a child. If parents work for the same employer, they must share leave.

Employee Eligibility

Employees are eligible if they have worked for their employer for 1,250 hours in the previous 12-month period.

Exemption for Reinstating Highly Compensated Employees

Employers must allow family or medical leave to a salaried employee who is among the top 10% of earners of employees working within 75 miles of the worksite. Restoration of employee to previous work status is at the discretion of employer if the restoration would be detrimental to the employer's business. (See ¶421 of the Handbook for details.) Employee must be notified by employer of intent to refuse reinstatement. If leave has already begun, employer must give employee a reasonable opportunity to return to work following the notice.

Continuation of Benefits

Employers must continue and pay for medical coverage under a group health plan for an employee who is on CFRA leave during the leave. Coverage will not exceed 12 workweeks in a 12-month period. An employer may recover premiums paid for coverage if employee fails to return from leave and if the employee's failure to return is not due to the continuation, recurrence or onset of serious health condition or other circumstances beyond the control of the employee.

School Visitation

Employers with 25 or more workers at the same location must allow employees to take up to 40 hours of leave each year, but not more than 8 hours in one month, to visit their children's school. Covered employees are protected form discharge, demotion or other discrimination related to this leave. School visitation covers parents, guardians or grandparents having custody of minor grandchildren. Employees must give reasonable notice before taking such leave. Employees must use existing vacation leave, personal leave, unpaid leave or compensation time off for purposes of school visits. Documentation maybe required as proof that employee participated in school related activities on a certain time and date.

Civil Air Patrol

The California Civil Air Patrol Employment Protection Act requires employers with more than 15 employees to provide at least 10 days of leave per year to volunteer members of the California Wind of the Civil Air Patrol responding to an "emergency operational mission". This provision is in addition to other leave benefits required by law. Those qualified must be employed at their current employer at least 90 days prior to beginning of leave. Employees must give advance notice of leave when possible. Employees must be restored to prior position or position equivalent in pay, benefits, and seniority after leave, unless the employee is not restored for reasons unrelated to the exercise of leave rights. The law does not require employers to grant leave to employees with Civil Air Patrol who are required to act as first responders for federal, state or local agencies answering the same or simultaneous operational mission.

Family Leave

The California Family Rights Act is a part of the FEHA and very similar to the FMLA. The CFRA covers private employers with 50 or more workers within 75 miles of the worksite and public employers with any number of workers. Employees that are eligible are allowed to take up to 12 weeks in any 12-month period.

Substitution of Paid Leave

The employer may require or an employee may elect that the employee substitute accrued vacation leave under CFRA. The employer may require or an employee may elect that the employee substitute accrued sick leave under CFRA if leave is due to employee's own serious health condition. Employees may not use sick leave for the birth, adoption or foster care of a child unless employer agrees.

Pregnancy Disability Leave

Under the FEHA, private employers with five or more employees and public employers must provide up to four months leave for pregnancy, childbirth or related conditions regardless of amount of time a women has been employed and regardless of she works full or part-time. If an employer allows leave for more than four months for other disabilities, it must also allow that same amount of time of for pregnancy disability. An employee who becomes pregnant or gives birth could take up to 28 weeks of leave during a 12-month period if she qualifies for CFRA or FMLA leave in addition to FEHA leave. Employees may use accrued vacation leave or sick leave during pregnancy disability leave. (State employees have paid disability leave under their NDI program.)

Organ and Bone Marrow Donation

Under the Michelle Maykin Memorial Donation Protection Act, an employee who has exhausted his or her sick leave my take up to 30 day leave of absence for purpose of organ donation and for up to 5 days for bone marrow donation in one year. Leave will be counted as business days, not calendar days. The year period for measuring how much leave can be taken must begin on the day the employee's leave starts, rather than the start of the calendar year. Leave cannot be considered a break in service when calculating salary adjustments, accrual of vacation, sick leave, paid time off or seniority. Employees receiving bone marrow donations may take up to five days of accrued vacation, sick leave or paid time off and up to two weeks of such time for organ donation receipt, before an employer is be obligated to pay employees for bone marrow or organ donation time off, unless such a policy would violate a collective bargaining agreement. The employee must provide written certification of the need and eligibility for the donation. Employees must be allowed to remain on the employer's group health plan, paying premium contributions as if the employer were still at work. Employees must be reinstated to the same or equivalent position. Leave need not be all at once. There may be other necessary medical procedures related to the donation. In this case, the total allotment must not exceed 5 days for bone marrow donation or 30 days for organ donation. Bone marrow and organ donation leave is separate from and in addition to FMLA or CFRA leave. Therefore, an employee may take an additional 12 weeks of unpaid leave for serious health condition related to the donation. Employers may not interfere with or retaliate against donation leave, nor may employers use unlawful employment practices related to such leave. Employees may seek private claims for enforcement of these provisions.