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EMPLOYMENT LAW BULLETIN
Vol. 07, No. 4
Courtesy of ESKRIDGE LAW
FAMILY AND MEDICAL LEAVE
Are you required to provide your employees with medical leaves of absence? The answer is far more complicated than you may think. There are at least two different sets of laws which need to be considered when an employee requests a leave of absence for certain family or medical reasons. Both the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA) outline requirements for employers. If your company has 50 or more employees, these laws apply to you and your employees. The two acts are virtually identical, and apply simultaneously. Employers must comply with the stricter of the two acts in the areas in which they differ. Since these are general guidelines, this office should be contacted if any specific issues arise. In many situations we can provide forms for employers to use, to ease the complexity of this process.
Employee Eligibility
Generally, an employee is eligible for a leave of absence of up to twelve (12) weeks, with a guarantee of reinstatement, if the employee meets all the following requirements:
- Has been employed for at least 12 months (ether consecutively or non-consecutively);
- Has been employed for at least 1,250 hours during the 12-month period immediately preceding the leave; and
- Is employed at a work site where you employ 50 or more employees within a 75 mile radius.
Suitable Reasons for Taking Leave
Unpaid leave must be granted for any of the following reasons:
- To care for the employee's child after birth, or placement for adoption or foster care (the CFRA and FMLA differ regarding pregnancy leaves of absences, which will be discussed in next month's bulletin);
- To care for the employee's spouse, son or daughter, or parent who has a serious health condition; or
- For a serious health condition that makes the employee unable to perform the employee's job.
The Acts define Aserious health condition as either:
- Inpatient care which includes an overnight stay in a hospital or residential medical care facility; or
- Continuing treatment or continuing supervision by a health care provider which includes any period of incapacity lasting more than three consecutive calendar days and involving either: (A) Treatment by a health care provider two or more times; or (B) Treatment by a health care provider at least one time and a regimen of continuing treatment such as being prescribed a prescription medication.
The Employer's Role
Under the CFRA and FMLA an employer's role consists of:
- Designating an employee's leave of absence as FMLA or CFRA, and giving notice of this to the employee.
- Ensuring the employee is allowed up to twelve weeks leave of absence within a 12-month period. (Alternative methods for calculation exist, but employers must use that method which favors the employee.)
- Requiring a medical certification from the employee's physician, but in California the physician is not required, nor permitted, to disclose the employee/patient's diagnosis (without consent).
Additional laws relating to the CFRA and FMLA will be discussed in next month’s bulletin.
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952), or by e-mail (geskridge@eskridgelaw.net.) Please visit our website at www.eskridgelaw.net or www.employmentattorneys.net.
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