Family Medical Leave Act

Under the federal FMLA, or the California Family Rights Act (CFRA), an employer that regularly employs more than fifty (50) people within a seventy five (75) mile radius is required to permit employees that have more than one year of service to take up to 12 WEEKS of unpaid leave if they, or their parents or children, have a “serious medical condition.”  

 

An employee need not specify to the employer that he/she needs “FMLA” or “CFRA” leave. It is sufficient for the employee to notify the employer that he/she has a “serious health condition”, although the employee need not use those exact words. The employee need only let the employer know that he/she has a condition that will require inpatient treatment or several doctor’s visits or that may incapacitate the employee for more than three (3) days. If the employer wants more information, it must ask for it. The employer may request a doctor’s certificate, indicating the severity and probable duration of the condition, but it must do so in writing. If the employer wants a second opinion, it may demand one, provided that it pays for it. The employer may also require the employee to see a physician of its choosing.  

 

A “serious medical condition” is defined as one that necessitates either inpatient treatment, or at least two doctors visits (or one visit plus a continuing regimen of treatment) and incapacitates the employee for more than three consecutive days. If the employee is unable to work for more than three (3) days, he/she is considered “incapacitated” under the FMLA. Permanent, recurring conditions such as Epilepsy, also qualify for FMLA protection. Thus, although the definition of a “serious health condition” is much broader and more inclusive than the definition of “disability”, it does not typically extend to common ailments such as a cold or the flu. However, such common ailments as the flu may be protected if they result in a period of incapacity of more than three days or otherwise meet the criterion for a covered “serious health condition.”  

 

The FMLA and CFRA also protect employees who require intermittent, or sporadic absences for such chronic conditions as migraines, asthma, irritable bowel syndrome, etc…Significantly, if an employee’s doctor certifies them for intermittent leave due to a chronic condition, the employer usually cannot ask for re-certification more often than every thirty (30) days.  

 

Employers may ask for a medical certification from a healthcare provider to verify your need for CFRA/FMLA leave; however, under CFRA (unlike under federal law) employers may not ask for the diagnosis, treatment, or other “medical facts” supporting your need for leave. If a healthcare provider’s certification states that the employee has a “serious health condition” as defined by CFRA, and also states the date of onset and probable duration of the condition, the employer cannot ask for any additional information. Employers who question the validity of a “sufficient” medical certification have two options: Grant the requested leave or pay for the employee to be examined by another, neutral healthcare provider. If the employer insists on a “second opinion”, and that opinion conflicts with the first, the employer must pay for a third opinion, which acts as the “tiebreaker.”  

 

CFRA leave may also be taken for adopting, or bonding with a child. “Baby bonding leave” may be taken immediately following a pregnancy disability leave or at any time within 12 months of the baby’s birth. Theoretically, if an employee has a difficult pregnancy, she may be entitled to up to four months of Pregnancy Disability Leave (“PDL”), then an additional 12 weeks of “baby bonding” leave once she recovers from her pregnancy-related disability. In other words, a women disabled by pregnancy who then gives birth may take up to seven consecutive months of job-protected leave.

 

If the employee takes covered FMLA leave, the employer must return the employee to their prior position without any loss of seniority.

 

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