Family & Medical Leave

The FMLA is a United States law that requires covered employers to provide employees with unpaid leave in which the employee’s job is protected for certain reasons including:

• Medical reasons
• Family reasons
• Pregnancy
• Pregnancy-related disabilities
• Adoption
• Bonding with a newborn child
• Foster care placement of a child
• Personal illness
• Taking care of an ill parents
• Family military leave

The FMLA allows an employee to take off up to 12 work weeks of unpaid leave during any 12-month period to attend to the situations listed above. However, the employee must have worked for the business for at least 12 months and worked at least 1,250 hours over the past 12 months. Also, the employer must have at least 50 employees

The CFRA is very similar to the FMLA, however there are some key differences between the two laws. The CFRA is more flexible in that only a minimum of 20 employees must have worked at the business during the time leave is requested. Also, under the CFRA, pregnancy related disabilities do not apply. Nonetheless, like the FMLA the eligible employee gets up to 12 weeks of unpaid leave within one year.

The Pregnancy Disability Leave (PDL) Act is a California law that covers employee leave pertaining to pregnancy-related disabilities. The PDL is even more flexible then the FMLA in that only 5 or more employees must have worked for the employer at the time of the leave for the employer to be covered. However, the PDL only covers pregnancy-related disabilities meaning the employee will not get time off for the birth of a child or placement of a child in foster care or adoption.

Family and Medical Leave Act (FMLA): 12 weeks within one year of when the employee requests time off for a protected activity

California Family Rights Act (CFRA): 12 weeks within one year of when the employee requests time off for a protected activity

Pregnancy Disability Leave (PDL): 4 months based on hours worked per week

Family and Medical Leave Act (FMLA): YES

California Family Rights Act (CFRA): YES

Pregnancy Disability Leave (PDL): YES

Family and Medical Leave Act (FMLA): Yes

California Family Rights Act (CFRA): Maybe. If the spouse, child, or elderly parent of the employee has a serious health condition then he or she may be entitled to intermittent leave.

Pregnancy Disability Leave (PDL): No. The employee can take bonding leave in separate two-week blocks, so long as it is within one year of birth.

Family and Medical Leave Act (FMLA): You must be reinstated to your same position or comparable job notwithstanding layoffs, etc. Otherwise, if you were terminated, you may have a cause of action for wrongful termination.

California Family Rights Act (CFRA): You must be reinstated to your same position or comparable job notwithstanding layoffs, etc. Otherwise, if you were terminated, you may have a cause of action for wrongful termination.

Pregnancy Disability Leave (PDL): You must be reinstated to your same position or comparable job notwithstanding layoffs, etc. Otherwise, if you were terminated, you may have a cause of action for wrongful termination

Under the FMLA, CFRA, and PDL your employer is required to reinstate you to a job that is comparable to your previous job. Nonetheless, the term “comparable position” is construed narrowly and means that your employer must give you a job that is virtually identical to your previous job in terms of pay, duties, benefits, working conditions, and status. As far as location goes, you should be placed at the same site or a geographically close worksite from where you worked previously.

When Can You Take Leave in California? – A Yes/No Test:

• Leave taken for bonding with a new baby? Yes
• Leave to take care of a sick family member? Yes
• Leave for a parent or guardian of a student to appear at school because of issues involving the student’s academics? Yes
• Leave for employees to voluntarily complete drug or rehabilitation? Yes
• Leave for an employee to watch their child’s baseball game? NO
• Leave for military spouses while a spouse is home from deployment? Yes
• Leave for employees to care for a domestic partner’s serious health condition? Yes
• Leave for employees who are donating an organ or bone marrow? Yes
• Leave for employees to vote in statewide elections? Yes
• Leave for employees to volunteer as firefighters, reserve peace officers, or emergency rescue personnel? Yes
• Leave for employees who are victims of domestic violence, sexual assault and/or stalking? Yes
• Leave for employees who are in jail for theft? NO

For a more detailed discussion, click here.

If you’re wondering whether you might have a lawsuit for violation of your rights under the FMLA, CFRA and/or PDL, ask yourself the following:

• Were you fired while you were on protected leave through the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), or the Pregnancy Disability Leave (PDL) Act?
• Were you denied leave under the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), or the Pregnancy Disability Leave (PDL) Act?

• $106,000: After returning from leave to tend to a premature birth an employee was fired. She gave her employer ample warning of her plan to take a leave of absence. She was later awarded $106,000 in damages and attorney’s fees. See Rodriguez v. Xiaobo America, Ltd.

• $200,000: After going through an extremely tough family situation along with juggling the pressures of her job, a human resources director requested leave under the FMLA on a Sunday. Subsequently, on Monday she went to the doctor to get treated for the stress she was facing and was fired that same day. The Court found that her employer interfered with her right to leave AND retaliated against her for it, leading to double damages. The plaintiff in this case was awarded almost $200,000 in attorney fees. See LaMonaca v. Tread Corp.

• $740,000: An employee who worked for his company for over 18 years was had 3 neck surgeries due to back problems. After the employee took his rightful amount of FMLA leave he was pressured to change his shifts so that his employer would not have to pay overtime to other employees to make up for his absence. Also, he was subsequently given poor performance reviews because of his leave. He was later fired an alleged safety issue. The jury in this case sympathized with the employee and he was awarded $740,535 for his lost wages and benefits