Summary of the Family and Medical Leave Act (FMLA) by Marilynn Mika Spencer

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1 This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide is based on general legal principles and does not address all possible claims, exceptions or conditions related to the subject matter discussed. Summary of the Family and Medical Leave Act (FMLA) by Marilynn Mika Spencer California law and federal law both protect employees from discrimination due to their need to take a leave of absence from work due to s serious medical condition that the employee has, or that an immediate family member has. The two laws are nearly identical, but there are a few important differences, which are noted below. The most significant difference relates to pregnancy leave, and is discussed below. The California Family Rights Act, Government Code section (CFRA) and the federal Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) provide job security to an employee who is absent from work due to the employee s own serious health condition; or to care for a family member with a serious health condition; or due to the birth or adoption of a child. The FMLA applies to all states; if the terms of the FMLA are more generous to the employee than the California law, then the employee should file under the FMLA. Eligibility The law applies to public sector and private sector employers. Public sector employers, including state, local and federal agencies, and local education agencies (schools) must comply with the law regardless of the number of employees. Private sector employers must comply with the law if they have 50 or more full-time or part-time employees (for at least 20 workweeks in the current or preceding calendar year) who work within 75 miles on one another. To be eligible for family and medical leave, an employee must work for a covered employer and:

2 have worked for that same employer for at least 12 months all together, even if not consecutively; and have worked 1,250 or more hours in the 12 months prior to the start of the family and medical leave; and Leave permitted An eligible employee may take up to 12 workweeks of unpaid leave in a 12-month period: if the employee is unable to work due to a serious health condition; if the employee is caring for an immediate family member (spouse, child, or parent) with a serious health condition; in California, leave also can be taken if caring for a domestic partner; and/or due to the birth of and care for a newborn child, or newly placed adopted or foster child. The 12 weeks of leave do not have to be taken at the same time. For example, leave may be taken for a few days in January, two weeks in early February, one day in late February, three hours in March, etc. Leave may be taken by the week, day or hour. For example, an employee can take family leave to attend medical appointments or to work a reduced schedule (for example, six hours per day instead of eight hours per day). The only limitation is that the total amount of leave cannot exceed 12 weeks in one 12-month period. Accrued paid leave, such as vacation or sick leave, may be used for all or part of the leave. Accrued leave does not extend the length of the leave; it merely provides compensation while the employee is on leave. A serious health condition as defined by the family and medical leave laws means an illness, injury, impairment, or physical or mental condition that involves: incapacity or treatment connected with inpatient care; or

3 incapacity requiring more than three calendar days absence from work, school, or regular daily activities and involving continuing treatment by (or under the supervision of) a health care provider; or incapacity due to pregnancy, or for prenatal care; or incapacity or treatment due to a chronic serious health condition (asthma, diabetes, epilepsy, etc.); or permanent or long-term incapacity due to a condition for which treatment may not be effective (Alzheimer's, stroke, terminal diseases, etc.); or absences to receive multiple treatments by, or on referral from, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (chemotherapy, physical therapy, dialysis, etc.), including absences due to recovery from such treatment. Pregnancy The two laws provide different coverage for pregnancy-related conditions. The FMLA includes pregnancy and related medical conditions in the definition of "serious health condition." The CFRA does not include pregnancy in this definition. However, under California law, Pregnancy Disability Leave (PDL) and CFRA do not run at the same time; as a result, female employees in California who have pregnancy-related disabilities may be eligible for an even longer period away from work (more than 12 weeks). Coordinating the three laws FMLA, CFRA and PDL is detailed and fact specific, and probably requires the services of an attorney, at least to analyze applicable rights. Please see my Avvo guide on pregnancy discrimination and pregnancy rights: Notice An eligible employee who wishes to use family and medical leave must give reasonable notice to the employer:

4 30 days in advance of the need if the need is foreseeable; or as soon as practicable if the need is not foreseeable; generally, this means providing verbal or written notice within one or two business days of learning of the need. The notice must contain enough information for the employer to understand the employee needs family and medical leave, but does not have to specifically identify the FMLA. The notice must specify the anticipated duration of the leave and should include the first and last day of the leave. The return-towork date can be updated by subsequent notice to the employer. The notice does not have to specify a medical diagnosis. The notice can be provided by the employee, the employee s spouse, the employee's friend, the employee's medical provider, another adult family member or by the employee s spokesperson or attorney. The notice may be given verbally (by phone or in person) or in writing (by letter, fax, or ). Suggestion to employees: Written notice is best because it is not subject to dispute. Always keep a copy of the written notice for your own records, in case a dispute arises later. An employer must notify the employee in advance and in writing that a leave of absence will be considered family and medical leave. Some courts have held that an employer may not include in the 12 week limit any leave time which precedes the written notice. Benefits while on leave A covered employer must maintain group health insurance coverage, including family coverage, under the same terms as for active employees. Benefits such as seniority or paid leave need not accrue during unpaid family and medical leave, provided these benefits do not accrue for employees on other types of unpaid leave. An employer is not obligated to maintain other benefits, such as life insurance, sick leave, education benefits or pension accrual. Upon return to work, all discontinued benefits must be reinstated immediately, with no disqualification period. Returning to work In most cases, upon return from family and medical leave, an employee must be restored to his or her original job, or to an equivalent job.

5 An equivalent job is one that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions. Employer obligations It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by the family and medical leave laws, or to discharge, discriminate or retaliate against any individual for opposing any practice, or due to involvement in any proceeding related to the family and medical leave laws. Employers cannot use the taking of family and medical leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, and family and medical leave cannot be counted under "no fault" attendance policies. An employer must maintain as confidential all medical information related to family and medical leaves. These records must be kept in files which are separate from ordinary personnel files. The only exceptions are that confidential medical records may be disclosed to supervisors and managers regarding necessary work restrictions or accommodation; to first and aid safety personnel when emergency medical treatment may be required; or government officials investigating the employer. Enforcing family and medial leave rights To pursue a claim for denial of family and medical leave, reprisal for taking family and medical leave, privacy violations, or any other claim related to family and medical leave rights, the employee must initiate the process. Under California law (CFRA), an employee must file a claim with the California Department of Fair Employment and Housing (DFEH) within one year of the employer's adverse act. The employee must file this claim before filing a lawsuit in court. California employees may also file under the FMLA, which has a longer time period for filing. See below. To contact the DFEH: (800) For persons with hearing disabilities, use the Videophone for the DEAF at (916) or TTY (800) ; Under federal law (FMLA), an employee has two options. The employee can file a charge with the Department of Labor (DOL), Wage and Hour Division, or the employee may file a lawsuit directly in court. In either case, the filing must take place within two years of the violation of the statute. To contact the DOL: Live

6 assistance is available Monday through Friday from 8:00 a.m. to 8:00 p.m. Eastern Time by calling (866) ), TTY: (877) The number for FMLA information is (866) ; Remedies An employee whose rights have been violated under the family and medical leave laws may be entitled to reinstatement, promotion, injunctive relief, lost wages and benefits, direct costs, interest, attorney's fees and cost, compensatory and punitive damages, or double damages for aggravated cases.