Shanberg Stafford LLP

Do You Have A Case? Need Answers? Call 866-902-0497

Shanberg Stafford LLP
866-902-0497

ASSERTIVE LEGAL COUNSEL FOR BUSINESSES AND WORKERS ACROSS CALIFORNIA, WASHINGTON, AND THE UNITED STATES.

California Attorneys Standing Up For Workplace Leave Of Absence Rights

When it comes to medical and other leaves of absence, employees are afforded rights and protections under federal and state law. The Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) prohibit employers from terminating workers for using the rights these laws provide. In most cases, eligible employees may take up to 12 weeks of leave to address a serious health condition or to bond with a new child.

At Shanberg Stafford LLP, our leave of absence attorneys represent clients in cases involving allegations of FMLA and CFRA violations in California, Washington, Colorado and across the country. We gather emails, review employee handbooks and look for patterns of behavior that indicate separate or arbitrary treatment of our clients on the part of their employer.

Your Eligibility And Rights Under The FMLA And CFRA

Employers with workforces of 50 or more must comply with the requirements of the FMLA and CFRA. To qualify for a job-protected leave under these laws, an employee must have at least 12 months of employment with the company and have worked a minimum of 1,250 hours in the previous 12 months.

Under California law, most employees who return from an approved leave are entitled to reinstatement to the same position. If that position has been eliminated or materially altered, the employer must offer a “comparable role.” This means that it should be virtually identical in terms of pay, benefits and working conditions. It should also involve substantially similar duties and responsibilities. However, if the employer can show the employee would have been laid off regardless of the leave or that no comparable role exists, the right to return may not apply.

Which Leave Laws Apply To You?

The laws that may protect your leave depend on a variety of factors, from the number of employees your employer has to the reason for your leave. Our attorneys can help determine which laws apply, and coordinate how they run together to protect your job, benefits and income.

When both the FMLA and CFRA cover the same leave reason, they usually run at the same time and the same weeks count against both. This often happens situations where you need to take a leave:

  • For your own serious health condition (if you meet both laws’ eligibility rules)
  • To bond with a new child (birth, adoption or foster placement)
  • To care for a spouse, child or parent (as recognized under both laws)

However, they do not run together if your leave involves:

  • A pregnancy disability (in California): California Pregnancy Disability Leave (PDL) usually runs with FMLA, but not with CFRA. After PDL ends, eligible employees may take up to 12 weeks of CFRA bonding.
  • Family members covered only by CFRA: CFRA includes domestic partners, children of any age, parents-in-law, grandparents, grandchildren, siblings and a “designated person.” FMLA does not cover all of these relationships, so leave is CFRA‑only.
  • Being a caregiver for a military servicemember: FMLA provides up to 26 weeks to care for a covered servicemember. CFRA does not have a 26‑week caregiver provision. Those additional weeks are FMLA‑only.

If CFRA covers your situation but FMLA does not, you still get CFRA’s protection. Employers must comply with both laws and may not use the less protective rule to reduce your rights. If you’re unsure whether both laws apply to your situation, contact us for a quick review. Our attorneys can explain your employment rights, deadlines and next steps.

What Documentation Do You Need For Medical Or Family Leave?

It’s important to give your employer a notice as soon as practicable. For scheduled procedures, provide advance notice. For emergencies, notify as soon as you reasonably can. Your employers can:

  • Require a medical certification: You typically have at least 15 days to provide it. However, your employer must accept a complete and sufficient certification, even if it’s not the employer’s preferred form.
  • Call the health care provider to authenticate forms: Your employer can contact your provider only to authenticate the medical certification or form you provided. They cannot demand excessive medical details or a diagnosis.
  • Require a return-to-work note: They can make a return-to-work note mandatory only if it is job-related and part of a uniformly applied policy tied to your duties. For example, if your role requires safely lifting 50 pounds or operating heavy machinery, your employer may require a note confirming you can perform those essential functions.

Make sure to follow the official leave procedure in your workplace. It’s crucial to provide enough details about your reason for taking a leave of absence to protect your time off under the FMLA and CFRA.

Job Protection, Benefits And Pay During Leave

Whether your leave is protected by FMLA, CFRA or both, you have the right to:

  • Return to the same or an equivalent position at the end of leave, with a narrow “key employee” exception for leaves under FMLA
  • Continue having group health coverage during your leave
  • Use accrued vacation/PTO or paid sick leave where policy and law allow, even if leaves under FMLA or CFRA are unpaid

In limited circumstances, an employer may recover its own share (the employer’s contribution) of the health insurance premiums it paid during your unpaid leave if you do not return to work for a reason that is not legally protected.

Intermittent or reduced schedule leaves are also allowed if medically necessary. If the leave is for bonding, you will need your employer’s approval for any intermittent leave under the FMLA. CFRA, however, gives an employee the right to intermittent bonding leave. If the employer and employee cannot agree on a schedule, the employee can take the leave in minimum increments of two weeks, with a right to take two leave periods of less than two weeks.

What To Do If Your Leave Is Denied Or If You Face Retaliation

If your leave is denied or you face retaliation after returning, you have the right to:

  • Ask for the decision and reasons in writing, including any policy or certification issues
  • Fix curable issues (for example, missing information on a medical certification) within the allowed time

It’s crucial to document everything, from dates and conversations with your employer or HR to policies cited and forms you provided. If possible, do not resign before speaking with a lawyer. Quitting can affect your rights and leverage.

Typically, the California Civil Rights Department is responsible for investigating violations of the CFRA. In some cases, an employer may be willing to reach a settlement in lieu of litigation. In other cases, litigation may be necessary. If an employer is held liable for unlawfully denying an employee a leave of absence, they may be required to pay back pay, attorneys fees, damages for pain and suffering, and fines. Additionally, they may be required to give an employee his or her job back.

Our lawyers can examine your situation for interference or retaliation and help you file your case with the appropriate government agency. Our attorneys can also help you seek reinstatement and financial recovery, if necessary.

Contact Our Experienced Legal Team Today

Employers often assume employees won’t fight back after they’ve been wrongfully terminated after taking a lawful leave of absence. If you’ve been denied leave or have been fired after taking a leave of absence, contact Shanberg Stafford LLP, today at 866-902-0497 or email us to schedule an appointment to discuss your case.