Welcome back for part two of Leave On Me, our series exploring leaves of absence and the laws that surround them. Last week we discussed the basics of leave law. This week we are discussing the major players of leave law: FMLA and CFRA. The Family Medical Leave Act (FMLA) is a federal law that sets out protections for employees with serious health conditions, or employees whose specific family members have serious medical conditions. The California Family Rights Act is the state equivalent to FMLA.
Which employers and employees do FMLA and CFRA apply to?
As mentioned last week, FMLA and CFRA only applies to employers with 50 or more employees within a 75 mile radius. Employees must have been employed by a covered employer for at least 12 months. Here is where we meet our first distinction between FMLA and CFRA. For FMLA, the employee must have worked the employer the previous 12 months prior to their leave. CFRA, however, simply requires that the employee have worked at least 12 months for the employer. Both CFRA and FMLA require that the employee worked at least 1,250 hours during that previous 12 months to the leave. Once it is established that an employee has satisfied those requirements, it must be determined whether the employee is entitled to FMLA or CFRA.
What is a serious health condition?
An employee, under FMLA, may only take a leave for a serious health condition. A serious health condition is defined as an illness, injury, impairment or physical or mental condition that involves inpatient care (defined as an overnight stay in a hospital, hospice or residential medical care facility; any overnight admission to such facilities is an automatic trigger for FMLA eligibility) or continuing treatment by a health care provider. Some of the examples of a serious health condition include:
- Incapacity For Three or More Days Plus Continuing Treatment: Continuing treatment by a health care provider that results in either:
- An incapacity of more than three consecutive calendar days with either two or more in-person visits to the health care provider within 30 days of the date of incapacity; or
- One in-person visit to the health care provider with a regimen of continuing treatment.
- Both scenarios require that the first visit to the health care provider must occur within seven days of the first date of incapacity.
- Incapacity Due to Chronic Serious Health Conditions: Chronic conditions that require periodic visits to a health care provider, continue over an extended period of time and may cause episodic rather than continuing periods of incapacity of more than three days. Examples of chronic conditions include asthma, diabetes and epilepsy.
- Incapacity for pregnancy or prenatal care: Can include morning sickness and routine prenatal care doctor's visits.
- Permanent or Long Term Incapacity: Examples are Alzheimer’s, severe stroke or terminal disease.
- Conditions requiring multiple treatments and recovery from treatments: Examples include cancer, severe arthritis and kidney disease.
- Inpatient Services: Wherever treatment requires an overnight stay at a hospital, hospice or residential care facility. This can include treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider.
Another distinction between FMLA and CFRA is that pregnancy is not covered by CFRA. Pregnancy is considered a serious health condition under FMLA. California does however offer Pregnancy Disability Leave (a topic we will explore in a future post) which offers up to 3 months of leave for pregnancy. Leave due to the birth, adoption or placement for foster care of a child does not require medical necessity or any period of incapacity. FMLA and CFRA leave is available for bonding with the baby/child.
Who is covered for a serious health condition?
FMLA and CFRA cover the a serious health condition for an employee or the employee's spouse, parent, or child. CFRA also covered, registered domestic partners.
How much leave can an employee get?
FMLA and CFRA allow an employee up to 12 weeks of unpaid leave.
The notice requirements discussed last week, apply to both CFRA and FMLA. Check them out
Be sure to check back next week as we explore Reasonable Accommodations and the Interactive Process.
If you have any questions contact The Rad Firm to discuss your situation.