Requests for leaves of absence rank amongst the most frequently encountered challenges employers face. California employers are required to comply with state-specific leave laws, including the California Family Rights Act (CFRA), which provides eligible employees with 12 workweeks of protected leave under qualifying events for full-time employees, and a proportional number of workweeks for employees who work less than full-time. Employers are prohibited from interfering with the exercise of CFRA rights and from retaliating against an employee who takes CFRA leave.
The CFRA applies to employers who directly employ five or more employees during each of any 20 or more calendar weeks in the current calendar year or the preceding calendar year (this does not include independent contractors). It requires employers to provide eligible employees with up to 12 workweeks of unpaid, job-protected leave in a 12-month period for a “qualifying event” defined below.
Qualifying Events (Reasons for Leave)
CFRA leave may be taken for any of the following qualifying events:
The CFRA does not include an undue hardship provision. Small employers will need to find a way to comply and provide this required leave for eligible employees.
Full-time and part-time employees are eligible for CFRA leave. To be eligible for CFRA leave, employees must:
Eligible employees may take CFRA-protected leave for a qualifying reason that covers the duration of the illness, medical treatment or recovery time up to 12 workweeks in a 12-month period.
Employers of both parents must grant each parent up to 12 workweeks of leave in the same 12-month period, and the employees can request to take the leave at the same time.
How to Define the 12-Month Period
Employers may use any one of the following methods to define the 12-month period:
*Recommended as a best practice.
You must apply whatever method you choose consistently and uniformly to all employees. If an employer fails to select one of the four methods for measuring the 12-month period, the method that provides the most beneficial outcome for the employee will be used.
Calculating 12 Workweeks
“Twelve workweeks” means the equivalent of 12 of the employee’s normally scheduled workweeks. For eligible employees working more or less than five days a week or working alternative workweek schedules, the number of working days constituting 12 weeks is calculated on a pro-rata or proportional basis. As examples:
If the employee’s schedule varies from week-to-week such that it is difficult to determine with any certainty how many hours an employee would be expected to work if not for the CFRA leave, then a weekly average of the hours the employee was scheduled to work over the 12 months prior to the beginning of the leave period (including any hours the employee took leave of any type) should be used to calculate the employee’s leave entitlement.
Intermittent or Reduced Schedule Leave
Employees may take CFRA leave intermittently or on a reduced schedule under certain circumstances.
Intermittent or reduced schedule leave may be taken with some restrictions:
There is no limit to the size of an increment for intermittent or reduced schedule leave for the serious health condition of the employee or the employee’s family member. You may limit leave increments to the shortest period that your payroll system uses to account for absences or use of leave, provided it is one hour or less. For example, if employees must use vacation or sick time in half hour increments or more, then you can require an employee leaving 20 minutes before the end of the workday for treatment for a serious health condition to use a half hour of the employee’s CFRA leave entitlement.
If employees need intermittent or reduced schedule leave for planned medical treatment, they must make a reasonable effort to schedule the treatment to not unduly disrupt their employer’s operations. However, employees cannot be required to schedule routine appointments around employers’ operational needs.
Employees who need CFRA leave for planned medical treatment for the employee or family member may be temporarily reassigned to similar positions that can better accommodate their schedules (with equivalent pay and benefits). Transfer to an alternative position includes altering an existing job to accommodate the employee’s need for intermittent leave or reduced work schedule and must comply with any applicable collective bargaining agreement or employer leave policy, the Fair Employment and Housing Act, and any other applicable state or federal law. The employer must not transfer the employee to an alternative position to discourage the employee from taking leave or otherwise to create a hardship for the employee.
The minimum duration of intermittent leave for baby bonding is two weeks for CFRA leave. However, you must grant a request of less than two weeks’ duration on any two occasions and may grant requests for additional occasions of leave lasting less than two weeks.
Employers are allowed to request certification from a health care provider for CFRA leaves due to the employee’s own serious health condition or that of a family member.
The employer may require that the employee provide any certification within no less than 15 calendar days of its request for certification, unless it is not practicable for the employee to comply despite the employee’s good faith efforts. This means that, in some cases, the leave may begin before the employer receives the certification.
Absent extenuating circumstances, such as the health care provider being unavailable, failure to return the certification in a timely manner can result in denial of CFRA protections following the expiration of the 15-day time period until a sufficient certification is provided. Additional time may be permitted in some circumstances.
If the employee never provides the certification (or recertification), the leave is not protected CFRA leave.
When you request certification, you need to advise the employee of the consequences of the employee’s failure to provide adequate certification.
Content of Certification
Medical privacy laws limit the type of information you can require on this certification. An employer may not contact a health care provider for any reason other than to authenticate a medical certification.
Employer requests for second and third opinions
If the employer has a good faith, objective reason to doubt the validity of the medical certification the employee provides for the employee’s own serious health condition, the employer may seek, at its own expense, a second opinion. from a second health care provider the employer designates or approves If the second opinion differs from the first opinion, the employer may obtain the opinion of a third health care provider designated or approved jointly by both the employer and the employee, concerning any information in the certification. The opinion of the third health care provider concerning the
information in the certification shall be considered to be final and binding on the employer and the employee.
An employer can require the employee to obtain recertification at the end of the period that the health care provider originally estimated the employee needed for CFRA leave, but only if additional leave is requested.
Designation of Leave
Designation of a CFRA leave is a two-step process: employee notice of the need for a CFRA leave and employer designation of the leave as CFRA leave.
Employees are required to notify their employers that they need to take CFRA leave, along with the anticipated timing and duration of the leave. The employee’s notice may be verbal, and does not have to be specific.
Employees are not required to ask for CFRA leave by name. Employees just need to provide enough information for the employer to realize the absence might be covered by the CFRA. That triggers your responsibility to investigate further and decide whether the employee needs and is eligible for CFRA leave. Not recognizing a request as CFRA-covered is one of the most common ways employers violate the CFRA.
Timing of Employee Notice: if the need for leave is foreseeable, the employee must give reasonable advance notice and, if due to a planned medical treatment or supervision, the employee must make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer, subject to the approval of the health care provider of the individual requiring the treatment or supervision. If the employee’s need for CFRA leave is not foreseeable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable or 15 days from the employer’s request.
Employers are required to give employees reasonable advance notice of any notice requirements that it adopts.
Once the employee requests CFRA leave, or you have enough information to determine whether the leave is being taking for a CFRA-qualifying reason, you are responsible for notifying the employee whether the leave will be designated as CFRA leave.
Timing of Employer Response: employers are required to respond to the leave request as soon as practicable and in no event later than five business days after receiving the employee’s leave request or receipt of information allowing it to make this determination, typically after receiving certification from a health care provider. You must attempt to respond to the leave request before the date the leave is due to begin. Once given, approval shall be deemed retroactive to the date of the first day of the leave.
Denying CFRA Leave
Some employees who request CFRA leave will not be eligible for the leave. Document denial of CFRA leave for employees who:
Substitute Paid Leave
CFRA leave is unpaid by the employer. However, employees have certain rights to substitute accrued paid leave for the otherwise unpaid time and/or may be eligible for employee-funded insurance wage replacement benefits administered by California Employment Development Department (EDD).
Paid Sick Leave and Paid Time Off (PTO)
During CFRA leave, the employee may be eligible to receive:
State Disability Insurance and Paid Family Leave Benefits
Employees on CFRA leave may be eligible for employee-funded insurance wage replacement benefits administered by the California Employment Development Department (EDD):
Covered employers must maintain and pay for eligible employee’s health coverage with the group health plan, under the same conditions as coverage would have been provided if the employee were not on CFRA leave. This includes medical, dental, vision, mental health and other coverages, and coverage for dependents. This is subject to any changes in benefit levels that may have taken place during the period of CFRA leave affecting the entire workforce, unless otherwise elected by the employee.
This obligation to provide group health benefits begins on the date the leave first begins and continues for the duration of the leave, up to a maximum of 12 workweeks in a 12-month period.
If the employee does not return from the leave, you can recover benefit premiums paid during the leave under certain conditions.
Employee Reinstatement After Leave
Employees who take CFRA-covered leave are entitled to reinstatement to their same or a comparable job at the end of the leave and must be provided a guarantee in writing by the employer upon request of the employee.
An employee is entitled to reinstatement even if the employee has been replaced or their position has been restructured to accommodate the absence.
An employee returning from leave must have at least as much seniority as the employee had at the time of starting the leave, for purposes of layoff, recall, promotion, job assignment and seniority-related benefits such as vacation. The employee retains the same status and you must reinstate any benefits previously provided without any new qualification period.
Absent a request for reasonable accommodation, an employee is required only to return an employee to the same or a comparable position. Treat an employee’s request to return to work on a part-time schedule or to take a different, available position the same as any other employee’s request for a change in hours or positions. No special consideration for the request is necessary because of the employee’s return from CFRA leave.
The CFRA does not prohibit an employer from accommodating an employee’s request to be restored to a different shift, schedule, position or geographic location that better suits the employee’s personal needs on return from leave, from offering a promotion to a better position, or from complying with an employer’s obligation to provide reasonable accommodations under the disability provisions of the California Fair Employment and Housing Act (FEHA) or the federal Americans with Disabilities Act (ADA).
If the employee is no longer qualified for the position because of the employee’s inability to attend a necessary course, renew a license or other non-qualifying reason as a result of the leave, the employee must be given a reasonable opportunity to fulfill those conditions upon returning.
Ending the Employment Relationship Before the Leave Expires
You may terminate an employee who refuses to provide the required medical certification and remains absent from work. Employers should have a written policy and apply a consistent process when dealing with unauthorized absences from work.
In general, an employee on CFRA leave need not be reinstated if their job would have been eliminated had they not been on leave.
Unless blatant misconduct has occurred, an employer generally should not terminate an employee on leave; prior poor work performance is not enough. Performance issues should be addressed prior to and after any leave of absence.
Because of the retaliatory risk and liability, consult legal counsel before you terminate an employee who requests or is on leave.
Interaction with Pregnancy Disability Leave
It is important for employers to understand and coordinate leave requirements and designate them appropriately to avoid confusion. Pregnancy disability leave (PDL) taken for disability on account of pregnancy, childbirth, or a related medical condition is separate from CFRA leave. An employee on a leave due to a pregnancy disability and then to bond with a child may be on leave for about seven months: four months of PDL leave and then 12 workweeks of CFRA leave.
Prior to the onset of pregnancy disability leave, employers should request that employees obtain a medical certification from their health care provider of the need and duration of leave. See Your Rights and Obligations as a Pregnant Employee notice. The actual time designated as disability related to pregnancy is determined by the employee’s health care provider. The maximum amount of time available is four months, or 17 1/3 weeks per pregnancy. Note that if an employee is disabled longer than four months, the employee may be entitled to additional leave as a reasonable accommodation for a pregnancy-related or other disability.
Once the employee is released from PDL by her health care provider, employers should designate the onset of CFRA leave by providing an employee notice in writing within five business days. This notice should include the employer’s guarantee to reinstate the employee to the same or comparable position. See What to Expect When Your Employee is Expecting on cda.org.
All leave for baby bonding must conclude within one year of the birth of the child, or one year from the date the child was placed with the employee for adoption or foster care.
CFRA Mediation Pilot Program Available
The California Department of Fair and Employment and Housing (DFEH) has created a “small-employer family leave mediation program” for employers with between 5 and 19 employees. Under this pilot program, if a small employer receives a right-to-sue letter from the DFEH notice alleging a claim under the CFRA then the employer may request mandatory mediation through the DFEH. The DFEH must initiate the mediation promptly following the request, and the employee may not pursue any civil action until the mediation is complete. For more information, contact the DFEH at https://www.dfeh.ca.gov.
Leave for a Qualifying Military Exigency
The CFRA allows for 12 weeks of leave in a 12-month period because of any “qualifying exigency” arising out of the foreign deployment of that the employee’s spouse, domestic partner, child, or parent.
There are specific eligibility requirements for qualifying exigency leave. In order for the employee to take the leave:
The type of events that count as “qualifying exigencies” for which an employee may take CFRA leave, include the following:
Beginning January 1, 2021, California’s Paid Family Leave (PFL) wage replacement program was expanded to include benefits to cover time off for qualifying exigencies. Employees are able to collect PFL benefits if they take time off for certain activities related to the covered active duty status of their spouse, registered domestic partner, child, or parent who is a member of the U.S. Armed Forces.
This new law doesn’t create a new protected leave of absence. It merely gives an employee the ability to collect PFL benefits if the employee does take time off. The right to take a protected leave for qualifying exigencies will depend on whether the employee is eligible under the CFRA. If the employee is not eligible, an employer could nonetheless choose to provide a leave for qualifying exigencies but would not be required to do so.
For more information about California’s PFL program, see Paid Family Leave.
Employer Notice and Posting Obligations
Covered employers must post a Notice about the CFRA informing employees of their rights to CFRA leave. CDA includes this notice in the Required Poster Set.
An employer’s failure to provide notice to an employee of their right to take medical leave under the CFRA precludes it from taking any adverse action against the employee, including denial of leave.
The CFRA brochure (DFEH-E03B-ENG) may be provided to employees.
Under California law, if you publish an employee handbook that describes other kinds of personal or disability leaves available to your employees, you must include a description of CFRA leave in the next edition of your handbook.
Forms for use by California Employers:
• Certification of Health Care Provider - Employees or Family Members Serious Health Condition (Provided by DFEH)
• Certification of Health Care Provider for Employee Return to Work
• CFRA Designation Notice
• CFRA Documentation Checklist - For Employer Use Only
• Certification of Health Care Provider for Pregnancy Disability Leave, Transfer and/or Reasonable Accommodation
How to Avoid the Most Common CFRA Management Mistakes