Family & Medical Leave Rights
It is not uncommon to need time away from work to address and care for health-related issues. If you or a member of your family is experiencing a serious health condition, Federal and State laws give you the right to take job-protected leave. The Federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) both may provide you the right to take a leave and to return to your job after the leave.
Under federal law, employers with 50 or more employees are required to provide disabled employees who qualify with up to 12 weeks of job-protected leave under the Family Medical Leave Act (FMLA). In order to qualify for FMLA leave, an employee has to have worked a minimum of 1250 hours for the employer over the past year.
In California, employers with 5 or more employees are required to provide disabled employees who qualify with up to 12 weeks of job-protected leave under the California Family Rights Act (CFRA). CFRA leave also covers employees who need to take leave to care for a child, spouse, partner, parent, grandparent, grandchild, or sibling dealing with a qualifying disability or medical condition, or is pregnant or adopting a child. In order to qualify for CFRA leave, an employee has to have worked a minimum of 1250 hours for the employer over the past year.
If you qualify for FMLA or CFRA leave, your employer must provide you with up to 12 weeks of protected medical leave over each 12-month period. Your employer is required to hold open your job, or a substantially similar job, for you to return to upon being released to return to work from the protected medical leave. During protected medical leave, the employer is not obligated to pay the employee during the leave. If you require more than 12 weeks of leave, your employer may be obligated to provide additional time off in the form of reasonable accommodation if it is not unduly burdensome for them to do so.
The Fair Employment and Housing Act prohibits retaliation against any person for making a complaint under the FEHA, for assisting another in making such a complaint or for opposing any action in the workplace that would constitute a violation of the FEHA.
Labor Code section 1102.5 prohibits retaliation against an employee by an employer for disclosing information that the employee reasonably believes is a violation of law to a person who has authority to investigate or correct the violation, and for refusing to participate in illegal activity. One way to establish a prima facie case under this statute is to show the employee (1) complained about the conduct that he or she reasonably believed to violate the law; (2) the complaints were received by the employer; (3) the employer negatively altered the terms and conditions of the employee’s employment; and (4) these actions were taken because the employee complained.Once an employee establishes the above elements, the employer would need to prove by “clear and convincing evidence” that it would have taken the same action in the absence of the employee’s protected activity.
An employee can also bring a retaliation claim under Labor Code section 6310. Under this section, prohibited retaliation includes discharge, threatened discharge, demotion, suspension or refusing to renew an employment contract. As long as the employee made a health or safety complaint in good faith, it does not matter for purposes of a wrongful termination action that the employee did not specify the particular safety statute or regulation the employer was allegedly violating.
The law protects employees who request or take FMLA or CFRA leave. Your employer may not retaliate against you for requesting or taking job-protected medical leave. If you request or take job-protected leave your employer may not treat you unfavorably as a result. If your employer has treated you differently because you requested or took leave, your employer may have retaliated against you and broken the law.
If you have been denied the right to take job-protected leave or have been retaliated against for taking job-protected leave, you may be entitled to compensation under federal and state laws. To prove your case, you must demonstrate that your job was not held for you while you were out on job-protected leave, or that your employer took adverse action against you because you either took or requested job-protected leave.
You may also have a case for disability discrimination. Learn more about how to prove a disability discrimination case.
If you believe you have been denied the right to take job-protected leave or have been retaliated against for taking job-protected leave, take the following steps to support your case:
Save Evidence: Record all relevant events or interactions in writing. Save related notes and documents. Additionally, you may request your personnel file to review any documents you have signed and ensure that your file is complete.
Report the Discrimination: Report the issue directly to your employer. If your employer does not correct their behavior, you may file a complaint with the Federal Equal Employment Opportunity Commission (EEOC) or with the California Department of Fair Employment and Housing (DFEH). It is recommended you consult an attorney prior to reporting the conduct to the DFEH or the EEOC so that your complaint to these agencies does not leave out any pertinent information.
Find an Attorney: Reach out to an employment attorney. Navruz Avloni is an employment attorney dedicated to fighting for your rights in the workplace. Schedule a free consultation with Navruz Avloni.
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Frequently Asked Questions
California employees are protected under the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), allowing eligible employees to take job-protected leave for personal or family medical reasons.
FMLA provides up to 12 weeks of unpaid, job-protected leave in a 12-month period for qualifying family or medical reasons, including serious health conditions or caring for a family member with a serious health condition.
CFRA is California’s family and medical leave law, providing eligible employees with up to 12 weeks of job-protected leave for their own serious health condition, to care for a family member with a serious health condition, or for qualifying family-related reasons such as bonding with a new child. While similar to the federal FMLA, CFRA differs in certain eligibility requirements, covered family members, and the types of leave protected under California law.
CFRA and FMLA both provide up to 12 weeks of job-protected leave, but they differ in important ways. CFRA covers leave to care for a domestic partner and does not cover an employee’s own pregnancy disability, which is instead covered separately under California Pregnancy Disability Leave (PDL). In contrast, FMLA treats pregnancy as a serious health condition and may run concurrently with PDL in certain circumstances.
Eligibility differs under FMLA and CFRA. Generally, employees must have worked for the employer for at least 12 months and at least 1,250 hours in the prior year. FMLA typically applies to employers with 50 or more employees within 75 miles, while CFRA applies to California employers with 5 or more employees.
Employees should notify their employer as soon as practicable of the need for leave and provide sufficient information to indicate that the leave may qualify under FMLA or CFRA. Employers may request medical certification in certain circumstances.
Eligible employees are entitled to be reinstated to the same or an equivalent position upon returning from leave, with continuation of group health benefits during the leave period.
Eligible employees may receive up to 12 weeks of job-protected leave in a 12-month period under FMLA and CFRA, though the amount of available leave may vary depending on the reason for leave and whether different leave protections run concurrently or separately.
Serious health conditions of the employee or family members, birth or adoption of a child, care for a family member with a serious health condition, or certain military family leave needs.
Employers may request reasonable notice and medical certification supporting the need for leave, but employee medical information must remain confidential.
Depending on the circumstances and employer policies, employees may be permitted or required to use accrued vacation, PTO, or sick leave during portions of FMLA or CFRA leave.
Employers must maintain health benefits, reinstate employees to the same or equivalent position, and cannot retaliate against employees for taking leave.
Employers must continue group health insurance coverage under the same terms as if the employee had not taken leave.
Yes. Pregnancy Disability Leave (PDL) may provide up to four months of protected leave for pregnancy-related medical conditions, and eligible employees may also qualify for separate CFRA bonding leave after childbirth, adoption, or foster placement.
Employees may file complaints with the California Civil Rights Department (CRD) or the U.S. Department of Labor, and may seek legal assistance regarding retaliation, interference, or denial of leave rights.
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Navruz Avloni is an experienced employment attorney dedicated to representing workers. She has successfully represented numerous clients whose rights to job-protected FMLA and CFRA leave have been infringed upon. If you are experiencing unlawful treatment at work, reach out to Navruz Avloni for a free consultation.
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Avloni Law is a boutique plaintiffs’ litigation law firm taking on the world’s largest corporations and entities and fighting for the rights of victims through employment litigation and more. We have a network of offices, including San Francisco, Los Angeles and San Jose, and our reach throughout California and the Bay Area is not limited to the cities where we maintain offices. If you are seeking a sex harassment, race discrimination, disability discrimination or a whistleblower attorney, reach out to us for a phone consultation.
