Most employees have never heard of one of California’s most important employment laws; the California Family Rights Act or CFRA (pronounced “cee-frah”.) The CFRA provides employees who have a serious health condition with up to twelve weeks of protected time off work, legally called a “protected leave of absence.” It also provides the employee with protected time off if a close family member has a serious health condition. The CFRA leave of absence may be taken in one large and continuous chunk, or may be taken several hours at a time called “intermittent leave.”
While many employees have heard of CFRA’s federal counterpart, the FMLA or Family Medical Leave Act, CFRA provides employees with far greater protections. All California employees and employers should know the CFRA basics.
How does the CFRA protect employees?
The CFRA is a form of a protected leave of absence, meaning the right to take time away from work. It offers two types of protections to employees who are qualified to receive it. First, employees who take a CFRA leave are entitled to reinstatement at the end of their leave of absence. In other words, the employee has the right to get their job back. Second, the employee’s health care benefits must continue during the CFRA leave of absence. CFRA leave is unpaid and the employer does not have to pay the employee’s wages or salary during the leave.
What employers are covered by the CFRA?
Unfortunately, not all employers are required to provide their employees with CFRA leaves of absence. Currently in 2020, only large employers with fifty or more employees must provide CFRA leave. However, as of January 1, 2021 this will be dramatically expanded and employers with just five or more employees must provide CFRA leave to their employees. Both part-time and full-time employees are included when determining whether the employer has the requisite number of employees.
What employees are covered by the CFRA?
Not all employees are covered by the CFRA. Even the employer has 50 or more employees (or five or more in 2021) the employee must meet certain criteria in order to be eligible. First, the employee must have been employed for one year or longer with the employer. Second, the employee must have worked at least 1,250 hours in the twelve months preceding the requested CFRA leave, or approximately 25 hours per week on average. Therefore, neither brand new employees nor employees who work only a minimal number of hours are covered under the CFRA. Currently employees must work at a location within a 75 mile radius of 50 or more other employees to be eligible for CFRA. However, this 75-mile radius requirement will be eliminated in year 2021, allowing remote employees or employees who do not work near a traditional company headquarters to be included within CFRA’s scope.
What types of medical conditions are covered under the CFRA?
Assuming the employer and employee are both covered under the CFRA, the employee must have a “serious health condition” in order to qualify for a CFRA leave of absence. Unfortunately, the definition of a “serious health condition” is highly technical and is a common area of dispute and confusion. A serious health condition includes, but is not limited to: (1) inpatient care when at least an overnight hospital stay is expected; (2) a period of incapacity of more than three consecutive days when ongoing medical treatment is required, and; (3) treatment for chronic medical conditions or permanent medical conditions such as asthma, diabetes, epilepsy. (2 CCR 11087 (r) & 2 CCR 11097.) Many medical conditions arising from Covid-19/ Coronavirus also qualify as serious health conditions.
Because the definition of a serious health condition can be very technical, employees should carefully work with their doctors and health care providers when completing any CFRA paperwork. Similarly, employees should seek legal help when employers dismiss out of hand an employee’s request for CFRA leave on the basis that the medical condition is not serious; employers cannot play doctor in this way.
Lastly, if even if an employee does not have a serious health condition for purposes of the CFRA, the same employee may still be entitled to a leave of absence as a form of reasonable accommodation under the California Fair Employment and Housing Act.
What about the employee’s family members?
The CFRA not only provides the employee with protected leave for the employee’s own serious health condition, but protected leave is also allowed if an employee’s family member has a serious health conditions. In other words, even if the employee is completely healthy, the employee may still receive CFRA leave to care for their sick family member.
Under the current state of the law, eligible family members include the employee’s children under 18 years old, parents, and spouse. However, beginning in 2021 eligible family members will include the employee’s children of any age, parents, grandparents, spouse, or sibling. Boyfriends, girlfriends, close friends, and housemates are not included as eligible family members.
How does an eligible employee get CFRA leave?
Employees who need time off work to care for their own medical conditions or for a sick family member should request CFRA leave from their employers. Employee’s may make this request verbally, but doing so in writing as soon as the need for leave is known is usually the best practice. The employee must state the reason for leave and that medical treatment is needed. The employer is required to process the request quickly. In some situations, the employee may be requested to provide a medical certification, a type of doctor’s note, verifying the need for the leave.
What happens if the CFRA leave is not granted?
Because the CFRA is relatively unknown, legally complicated, and perceived as very burdensome and expensive by employers, CFRA violations are rather common, including violations that result in the employee’s termination of employment. Employers are prohibited from retaliating against employees who request or take CFRA leave. Employers are similarly prohibited from interfering with an employee who seeks to take a CFRA leave. Employers may be sued for violating the CFRA and employees may recover lost pay, lost benefits, human damages such as emotional distress, attorney’s fees, and even punitive damages. Employees should consider contacting legal counsel proactively if their employer is refusing to grant a CFRA leave of absence.
Do you have any questions about your CFRA rights? Contact the law office of Brian Mathias.