Recent Developments In Family Leave Law

Recent Developments In Family Leave Law

07.15.2015

The Federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide both overlapping and separate medical and family leaves of absence to employees who work for employers that have 50 or more full or part-time employees.  The interaction between these leaves of absences as well as their administration is often confusing and requires a case-by-case analysis.

FMLA and CFRA provide employees 12 work weeks of protected family and medical leave in a 12-month period.  In general, an employee is eligible for such leave if he/she:

  • Works for a covered employer;
  • Has worked for the employer for at least 1,250 hours in the 12 months preceding the commencement of the leave;
  • Works at a worksite where the employer employs at least 50 employees, either at the worksite or within 75 miles of the worksite; and
  • Has worked for the employer for at least 12 months, although this does not need to be consecutive (which means that there can be a break in service). For leaves that are only based on FMLA, the break in service can be up to 7 years and in certain circumstances (i.e. military obligations) even longer. On the other hand, leaves only based on CFRA or those leaves where FMLA and CFRA run concurrently, the length of the break in service does not impact an employee’s eligibility as long as the other foregoing requirements are satisfied.

After many years, in March of this year the CFRA regulations were amended.  The new CFRA amendments make a number of changes that help it align with FMLA. The CFRA amendments went into effect July 1, 2015. Below is a summary of some of the key amendments and how they are different from and similar to the existing FMLA regulations.

Key Differences Between the amended CFRA regulations and FMLA:

  • Limits on New Certifications:
    • CFRA: An employer cannot ask for new medical certification before the initial certification expires, even in circumstances where the initial certification includes a “lifetime” condition.
    • FMLA: At least every six months an employer may request a new certification.
  • Health Benefits:
    • CFRA: An employer must maintain an employee’s health benefits for both Pregnancy Disability Leave (PDL) (which is up to 4 months) and baby bonding time under CFRA (which is 12 work weeks).
    • FMLA: FMLA leave covers both pregnancy disability and baby bonding, therefore the employer only has to maintain the employee’s health benefits for 12 work weeks.
  • Second Opinion:
    • CFRA: In order to obtain a second medical opinion, an employer must have a “good faith, objective reason” to doubt the validity of the first medical opinion.  Also, the second opinion is only permitted with respect to an employee’s own serious health condition.
    • FMLA: The employer only needs a “reason” to doubt the validity of the first medical opinion.  In addition, a second opinion can either be about the employee or a family member.
  • Contacting Health Care Providers:
    • CFRA: An employer cannot contact a health care provider for any reason other than to authenticate a medical certification.
    • FMLA: The employer may contact a health care provider to authenticate a medical certification or seek clarification.
  • FMLA Certification Forms:
    • CFRA: An employer may use the federal FMLA certification forms for CFRA leaves, however, the forms should be modified so that they do not seek information regarding symptoms or diagnosis.
    • FMLA: The FMLA certification forms allow employers to ask for information about symptoms and diagnosis.
  • Use of Paid Leave:
    • CFRA:
      • Vacation or Paid Time Off (PTO) – an employee may elect or an employer may require an employee to use accrued and unused vacation or PTO time for any unpaid CFRA leave.
      • Sick Leave – an employer may require an employee to use accrued and unused sick leave if the leave is for the employee’s own serious health condition; however, if the leave is for any other reason, then the employer and employee must agree to use sick leave during an unpaid CFRA leave.
    • FMLA: The employer may require or an employee may choose to substitute paid leave during an otherwise unpaid FMLA leave.

Key Similarities Between the Amended CFRA regulations and FMLA:

  • Retroactive Designation: An employer may retroactively designate CFRA leave with appropriate notice to the employee, as long as “the employer’s failure to timely designate leave does not cause harm or injury to the employee.”
  • Response Time: An employer must respond within 5 business days upon receiving a request for CFRA leave (as opposed to 10 business days under the old CFRA regulations).
  • Key Employee”: The CFRA regulations have now adopted FMLA’s definition of “key employee” with respect to those whom the employer may deny reinstatement if the employer complies with the applicable notice requirements.
  • Leave Beyond 12 Work Weeks Provided by FMLA/CFRA: The amended regulations provide that an employee may be entitled to additional leave as a reasonable accommodation for disability after the employee exhausts available FMLA/CFRA leave.  This is consistent with existing case law.

Best Practices: It is important for all supervisors to receive proper training on the new regulations.  This article provides a general overview of some of the key issues arising out of the amended CFRA regulations and its interplay with the existing FMLA regulations.  You should consult qualified counsel before making any decisions regarding the leave rights of your employees or before you change your existing policies and procedures.

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Donna B. Vasquez is a partner in the Los Angeles office of Musick Peeler & Garrett.  She advises clients and handles legal disputes in the areas of labor and employment as well as construction.

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