FAQ - Family Medical Leave Act (FMLA) & California
Family Rights Act (CFRA)
What are FMLA and CFRA?
FMLA stands for Federal Family and Medical Leave Act. CFRA
stands for California Family Rights Act. Both acts represent
Federal and State laws that allow eligible employees to take up
to 12 work weeks of unpaid leave during any 12 month period.
What are the acceptable reasons for taking a leave of
For FMLA reasons will include a serious health condition of
the employee, child, spouse, or parent; the birth of a child of
the employee, placement of a child for adoption or foster care.
This includes any period of incapacity due to pregnancy,
including prenatal examinations or severe morning sickness.
CFRA works the same as FMLA, except that CFRA also allows for
care of a registered domestic partner and excludes pregnancy.
For pregnancy, California allows up to 4 months of Pregnancy
Disability Leave (PDL) pursuant to the California Fair
Employment and Housing Act for all employers with five or more
full or part time employees. PDL is for any women hindered due
to pregnancy, childbirth, or a related medical condition. This
includes prenatal care and severe morning sickness
Federal Family and Medical Leave Act (FMLA) for Covered
Covered Employers are those who engage in activity affecting
commerce and employ 50 or more employees in 20 weeks of current
or preceding year. Public agencies and private elementary and
secondary schools are covered regardless of the number of
California Family Rights Act (CFRA) for Covered Employers
Covered Employers are those who engage in business or
enterprise in California and employ 50 or more employees in any
20 weeks of current or preceding calendar year. California,
counties, and any political or civil subdivision of the state
and cities are covered regardless of the number of employees.
FMLA and CFRA for Covered Employees
Covered Employees are employed with the employer for at least
12 months (need not be consecutive months), worked at least
1,250 hours during the 12 month period immediately preceding the
leave, and employed at a worksite where 50 or more employees
work within a distance of 75 surface miles.
What are the posting requirements?
An FMLA and CFRA notice explaining entitlements of leave and
procedures for filing a complaint with the Department of Labor,
Wage and Hour Division must be posted in a conspicuous place
where applicants and employees tend to congregate.
Can the employer request medical certification?
FMLA and CFRA. An employer can request medical certification
from the employee. The employer can ask for a second and even
third opinion to verify the validity of the medical
certification. However, under CFRA, a second or third medical
opinion cannot be requested regarding the care of an employees
family member. The employer must accept the certification
What is the employer's obligation to designate or deny leave?
For both FMLA and CFRA it is the employer's obligation to
designate or deny leave, in writing and indicate if leave is
paid or unpaid. Designating leave must be done prospectively and
not retroactively unless the employer lacks sufficient
information as to the reason for leave.
FMLA and CFRA allowed time off
For FMLA, up to 12 weeks in an established 12 month period is
allowed. Intermittent leaves or a reduced work schedule may be
taken when medically necessary. CFRA is the same as FMLA with
the exception that leave(s) taken for the birth, adoption, or
foster care placement shall be granted at a minimum of two week
increments. On two occasions increments of less than two weeks
may be used.
FMLA and CFRA leave will run concurrently, except in the case
of a leave taken for disability due to pregnancy, childbirth or
a related medical condition in the State of California which is
covered separately under the California Pregnancy Disability
How to determine paid or unpaid leave.
FMLA and CFRA is unpaid, however, an employee may choose or
the employer may require substitution of unpaid FMLA with
vacation or other accrued time off and/or sick pay to the extent
the circumstances meet the employer's typical policy for the use
of sick pay.
Does the group health coverage continue while the employee is
For both FMLA and CFRA, the employer must continue any group
health plan for the duration of FMLA leave, at least 12 weeks in
a 12 month period, under the same conditions as if the employee
was actively working. Longer health plan coverage or other
benefits are determined by the employer's policy to the same
extent and under the same conditions as would apply to any other
leave. Employees are still responsible for their share of
benefit premium payments.
What happens when the employee returns from leave?
For both FMLA
and CFRA, the employee must be reinstated to the same or
equivalent position at the end of leave. However, the employee
has no greater right to reinstatement, benefits, or to other
conditions of employment than if he or she was continuously
employed during FMLA leave. The exception to this is for
salaried key employees, defined as the highest paid 10% of all
employees. If denial is necessary to prevent serious economic
harm to the employer, then the employee needs to be properly
The above is a brief summary of information pertaining to
FMLA & CFRA and not a complete description of all rules and
regulations. As rules and regulations are subject to change we
cannot verify that all information is current or completely
accurate. HCP National provides educational programs to assist
our clients in risk management through compliance with various
applicable federal laws, rules and regulations; however, this is
neither an effort to practice law or a legal service. We
encourage everyone to consult with their own attorney, certified
public accountant and tax professional on any issues involving
specific facts, persons, circumstances or situations.