The federal Family and Medical Leave Act (FMLA) acts as the nationwide guidelines that provide Americans with the right to take up to 12 weeks of unpaid leave if it is for health or family related reasons. All employers that meet the thresholds outlined by the FMLA must allow an employee to take their requested leave. California also has state level legislature called the California Family Rights Act that works in tandem with the FMLA to provide even more comprehensive coverage for employees by expanding the thresholds for employers outlined in the FMLA. Any acts of retaliation for taking family or medical leave are strictly prohibited by both pieces of legislation which make acts like termination or discrimination unlawful.
If you feel that your rights to unpaid leave off for family and medical leave have been violated or if you were unlawfully retaliated against for taking time off, call Mesriani Law Group today. Our team of experienced FMLA lawyers will fight for your rights, build your case, and ensure that you stand the best chance of winning your claim against your employer.
Here are shortcuts to the specific topics:
- 7. Do I Get Health Insurance While on Family and Medical Leave?
- 8. Can I Take Additional Time Off After FMLA & CFRA Leave?
- 9. Examples of FMLA & CFRA Violations
Why Choose Mesriani Law Group FMLA Lawyers?
If you or someone you love has denied the right to time of for medical or family reasons, you want an experienced Los Angeles employment attorney who has a history of successfully handling FMLA claims. Mesriani Law Group’s Los Angeles FMLA lawyers guarantee exceptional legal service to our clients and have the successful results to prove it.
Why you should choose Mesriani Law Group for your FMLA claim:
Our Los Angeles family and medical leave attorneys will fight aggressively to ensure that you get the maximum compensation and justice you deserve. Contact our offices today for your free consultation.
What is the FMLA?
The Family and Medical Leave Act (FMLA) is the piece of federal law which provides employees with the right to take job protected unpaid leave for any of the following reasons.
- To take care of a serious health issue that prevents an employee from performing the necessary functions of their employment
- To take care of a family member who is suffering from a serious health issue
- The birth of a child with time to take care of the newborn
- To spend time with an adopted or fostered child within the first year of placement
- Any qualified emergency need that is the result of being next of kin to an active military member
It is important to note that the conditions outlined in the FMLA require eligible employers with 50 or more employees to maintain group health insurance coverage for the employee while on leave. Eligible employees may take up to 12 work weeks off in a 12-month period.
In the event of a “serious health condition,” an employee must notify their employer that they require time off to attend to a condition that prevents them from being able to work. The employer may request, in writing, evidence produced by a doctor that identifies the severity of the condition and the expected time off. Under the FMLA, the employer is allowed to request a second opinion, however they must pay for it.
In the event of a child being born, adopted, or fostered, both parents are entitled to time off to care for the baby. In addition to the regular right protected by the FMLA, members of the US military are provided with some additional benefits. Active members of the US armed forces and veterans have increased protections to cover any long-lasting effects of service and military caregivers are given 26 work weeks to attend to the needs of vets in their care.
FMLA vs CFRA?
The California Family Rights Act acts as the state legislation that provides similar rights as the federal FMLA. Much like the FMLA, after CFRA leave, employment must be reinstated in its former capacity. However, the primary differences between the two laws are:
- CFRA expands eligible employers to those with 5 or more employees.
- CFRA requires employees to give 30 days’ notice prior to taking CFRA leave in the event of non-emergency related circumstances
- CFRA provides more privacy because the medical notice provided by a doctor does not need to include the condition or diagnosis
- CFRA does not include pregnancy as a serious health condition since California has a separate law, California Pregnancy Disability Leave Law, which provides employment related protections related to pregnancy, childbirth, and related medical issues
- CFRA counts domestic partners as the equivalent of a spouse
- Second opinions are not permitted to verify a serious health condition of a family member under the CFRA
- Active military service may not be used as “qualifying exigency” under the CFRA
Are You Eligible for FMLA & CFRA Leave?
The FMLA and CFRA both provide up to 12 weeks of protected time off in a 12-month period. To be eligible for FMLA leave, the following requirements must be met:
- Employment duration: An employee must have been with their employer for at least 12 months
- # Of hours worked: An employee must have worked for at least 1,250 hours for an employer in the past 12 months
- Employer size: Employers must have 50 or more employees that live within a 75-mile radius of the workplace
What Medical Conditions Qualify for FMLA & CFRA Leave?
Under the FMLA and CFRA, a serious health condition is described as any illness, injury, or physical / mental condition that requires on-going treatment by a professional medical practitioner. The injury or illness does not need to be life threatening. It can also include mental health conditions such as depression and anxiety. The following circumstances all qualify for FMLA and CFRA leave:
- Recovery from surgery
- Involved in accident or other significant injury
- Receiving treatment for a chronic health conditions like cancer, organ failure, & even COVID 19
In addition to leaving work to get well, employees are also entitled to take leave in the event they need to become a caregiver for someone in their family due to similar circumstances.
Explaining the California Pregnancy Disability Leave Law (PDLL)
The California Pregnancy Disability Leave Law (PDLL) offers many of the same protections as the FMLA for pregnant women. This entitles pregnant mothers to take job protected, unpaid leave for their pregnancy, childbirth, and any related medical issues or conditions. The PDLL requires that employers reinstate employees to their former position or something similar. The main exception to this rule is if the role no longer exists due to reasons not related to an employee’s PDLL leave. In addition to PDLL leave, any eligible employees are also allowed to take an extra 12 weeks of CFRA leave.
Is FMLA Paid or Unpaid Leave?
While the FMLA is set up to ensure that employees are provided with protected leave for family and medical care, it does not guarantee that those employees will be paid during their leave. Employers are liable for keeping them on their existing health insurance plan as well as reinstating them back to their original position, but companies are not responsible for continuing payments during an excused absence. There are ways that employees can leverage accrued vacation time to ensure that payments are maintained until the vacation pay is exhausted. In the instance of a medical issue, paid sick leave can also be utilized. There are other programs like the California Paid Family Leave or Family Temporary Disability Insurance that can provide as many as 6 weeks of partial payment to offset time taken off work to cover childbirth, medical issues, or becoming a caregiver for an ill family member.
Do I Get Health Insurance While on Family and Medical Leave?
Eligible employees that are covered by the FMLA are entitled to having their health insurance plan active and protected while on leave. Employers that cut health insurance or terminate employees that take FMLA leave are in violation of several labor laws and are liable for damages.
Can I Take Additional Time Off After FMLA & CFRA Leave?
After the time off provided by the FMLA, CFRA, and Pregnancy Disability Leave, employees can see if they qualify for additional time of as determined by the ADA and FEHA. California’s Fair Employment and Housing Act applies to businesses with at least 5 employees and provides reasonable accommodations that include medical leave. There is no maximum length of time for FEHA leave but it is not job protected. Employees leave with an undetermined time frame of return but with the expectation to return to work in the foreseeable future. That role may no longer be needed at the time of return, but the returning employee must be given priority for similar positions.
Examples of FMLA & CFRA Violations
There are several examples of Family Medical and Leave Act and California Family Rights Act violations:
- Termination during or after taking FMLA or CFRA leave because of taking leave
- Major changes in pay, benefits, or role upon return from taking FMLA or CFRA leave
- Failing to reinstate an employee after return from taking FMLA or CFRA leave
- Denying or preventing an employee from taking FMLA or CFRA leave
- Retaliation for filing a FMLA or CFRA related complaint
- Compelling an employee to work while on FMLA or CFRA leave
Retaliation for Using FMLA or CFRA Leave
Employees that take FMLA or CFRA leave may be retaliated against by their employers. Most employers know not to terminate or penalize an employee for taking qualified time off under the FMLA, but they may still attempt to penalize an employee for taking leave. If an employee returns to find that they have lost their role, pay, or benefits in any way, they may be a victim of retaliation. If any of the changes experienced by an employee can be tied to taking FMLA leave, a viable FMLA lawsuit may be filed against their employer.
Can An Employer Require Proof for FMLA?
Contact a Mesriani Law Group FMLA / CFRA Lawyer Now
If you or a loved one have had their Family and Medical Leave denied, or were retaliated against for taking FMLA leave, your employer most likely violated your rights to job protected, unpaid leave. Enlisting an experienced FMLA attorney in Los Angeles will ensure that your claim has the best chance of success. Our team at Mesriani Law Group will help you navigate the FMLA lawsuit and build a case against your employer so call today to schedule a consultation!
Family and Medical Leave Act Lawyer FAQs
What situations are eligible for FMLA?
Most situations that are related to serious health issues that require on-going treatment for an employee or their family qualifies them to take FMLA leave. These situations include when:
- Employees are unable to work due to medical issue
- Immediate family is sick and needs a caregiver
- Pregnant women are having a child
- New parents need bonding time with their newborn, adoptee, or foster child
- Spouses of US armed forces when they are called to active duty
Will I be paid while on FMLA leave?
The FMLA does not protect an employee’s right to payment, only to job protected leave. This means that an employee is entitled to returning to the same role, pay, and benefits as they held prior to their leave unless the role was terminated for unrelated reasons.
Can I be fired for filing a FMLA complaint?
Being fired for taking FMLA leave or filing a FMLA complaint is a clear violation of strict employment laws designed to protect employees against retaliation. Employers are prohibited from terminating employees for exercising their rights to protect themselves from exploitation.