The Family and Medical Leave Act, or “FMLA,” is a federal labor law that was passed in 1993. The Act requires covered employers to provide their employees with job protected and unpaid leave for qualified medical and family circumstances. Additionally, The Act provides rights and protections as associated with medical leave for employees, and may continue this unpaid leave for up to twelve weeks.

The FMLA requires that covered employers preserve the health benefits for all eligible workers, so it is as if they were still actively working. During this time, the employee’s position is protected, and as such they may not be terminated.

As a federal law, the Act preempts state laws, even when those laws conflict with each other. What this means is that employees in states that offer little or no family and medical leave could still be protected under the FMLA. While some states may have laws providing more coverage, most states do not provide more leave than what is required of them to provide by federal law.

Additionally, not all employers are required to provide the benefits that are required by the FMLA. Federal law states that employers are only required to provide all eligible employees with leave if the employer meets one of the following criteria:

  • The employer is a state, local, or federal governmental agency;
  • The employer is a private business conducting interstate commerce, with fifty or more employees that work 20 or more weeks in one year; or
  • The employer engages in commerce, or is involved in an industry that affects commerce. It is important to note that almost every business meets the requirement for being or affecting commerce.

Employers have some specific responsibilities under the FMLA. An example of this would be how employers are not permitted to terminate an employee who takes family or medical leave for any reason, as outlined in the FMLA. Employees working for employers who are covered by the FMLA have a right under federal law to take leave if they qualify. Additionally, employers cannot reprimand the employee for taking this leave, and the employer may not discriminate when granting FMLA leave.

Who Is Eligible For FMLA Leave?

In order to be eligible for coverage under the FMLA, an employee must meet all three of the following criteria:

  1. They must have worked for the employer for the last twelve months;
  2. The employee must have worked at least 1,250 hours over the last twelve months; and
  3. They must be employed by an employer who is covered under the Family and Medical Leave Act.

In addition to meeting the above criteria, the employee must also experience a qualifying life event that would cause a need for the FMLA. Some examples of qualifying life events include, but may not be limited to:

  • The birth and care of a newborn child;
  • The placement of an adopted or fostered child, that was placed within one year since applying for leave;
  • The employee needing to care for an immediate family member who has a serious health condition;
  • The employee has a serious condition themselves, which makes them unable to perform essential functions of their job, including pregnancy or prenatal care; and/or
  • The employee’s spouse, child, or parent is an active military member who is called to active duty.

Additionally, employees may take up to 26 weeks of leave in twelve months if they take the leave in order to care for a:

  • Spouse;
  • Child;
  • Parent; or
  • Next of kin that is a service member who has experienced a serious injury or illness.

Generally speaking, every employee is limited to up to 26 weeks of combined leave over a twelve month period. To reiterate, eligible employees are entitled to take time off in order to care for themselves, or for family members, as well as some of the following benefits:

  • Twelve weeks of unpaid leave;
  • Continuation of medical and/or health benefits during their leave; and
  • The restoration of their original position once they return to work, once their leave has ended.

In short, employees cannot lose their job if they take Family and Medical Leave Act leave, and employers cannot reprimand employees for taking FMLA leave. Additionally, employers may not interfere with the FMLA protected rights of the employee, nor can they use FMLA leave as an adverse factor in any future employment evaluations. An example of this would be promotions or raises.

Am I Eligible For Family And Medical Leave In California?

In the state of California, the California Family Rights Act (“CFRA”) is administered by the Department of Fair Employment and Housing. As it is based on the federal FMLA, it applies to private employers with 50 or more employees on the payroll during each of any 20 or more calendar weeks.

Employees who work for covered employers are eligible as long as they have worked for their employer for 1,250 hours in the previous 12-month period. Additionally, they must have been employed for a total of at least 12 months on the date on which leave is to begin. Compared to Federal FMLA, CFRA provides broader protection for California employees.

Pursuant to both Federal and California family and medical leave laws, eligible employees may take 12 workweeks of unpaid leave in a twelve-month period for specific reasons, such as:

  • Bonding with a newborn, adopted child, or child placed in foster care;
  • To care for the employee’s family member who is seriously ill; and/or
  • The employee’s own serious health condition.

Qualifying employees can also take twenty-six workweeks of leave during a twelve-month period, in order to care for a covered service member who has a serious injury or illness. This would be if the employee is the service member’s spouse, child, parent, or next of kin, and is known as military caregiver leave.

It is important to note the discrepancy between Federal and California law regarding military caregiver leave. While federal law allows employees to take off up to 26 weeks in a 12-month period, California only permits the employee to take 12 months off in a one-year period.

California allows employees to take intermittent leave. An example of this would be how new birthing parents can take bonding leave in separate 2-week blocks, as long as it is within one year of the birth of their child.

To reiterate, the point of family leave is to provide job protection to employees from being fired while they are on leave. After you take your leave, you will be reinstated to your same or comparable job.

Additionally, California maintains the Paid Family Leave (“PFL”). PFL provides up to 6 weeks of partial pay to employees who take time off from work in order to care for a gravely ill family member, including the employee’s:

  • Child;
  • Parent;
  • Parent-in-law;
  • Grandparent;
  • Grandchild;
  • Sibling;
  • Spouse; or
  • Registered domestic partner.

The employee can also take the time off in order to bond with a new child, whether the child is born to the employee, is a foster child placed with the employee, or is adopted.

It is important to note that California requires you to notify your employer when you are going to take leave. While FMLA requires at least 30 days’ notice, California simply requires that if leave is foreseeable, the employee must provide reasonable notice.

Do I Need An Employment Attorney For Help With Family And Medical Leave In California?

You should work with a labor and employment attorney in California to determine what leave you can take, as well as discuss the difference between federal and California laws. If you feel that you have been mistreated by your employer while on leave or after returning, a California attorney can help you understand your legal rights and options under California employment law.