FAQ: What Your California Business Needs to Know about FMLA Leave

Posted by: kevensteinberg
Category: Areas of Practice, Blog, Employment Law
Family and Medical Leave Act

Before 1993, there was no guarantee that an employee would still have a job if they had to leave due to pregnancy complications, to care for a new child, recover from a serious illness, or care for a sick family member. That all changed with the Family and Medical Leave Act (FMLA). 

The Family and Medical Leave Act is designed to help employees balance work with these family and personal responsibilities. And this act has had a supremely positive impact on workers’ lives—it has been used more than 100 million times. California also has enacted the California Family Rights Act (CRFA) to provide job protection, similar to the FMLA. With so many use-cases, it is vital for your business to understand the FMLA and the CFRA. The following frequently asked questions will give you the basic information you need to understand the FMLA, recognize your employees’ rights, and create a positive work environment. 

What Is the Family and Medical Leave Act (FMLA)?

The Family and Medical Leave Act (FMLA) is a federal labor law that provides eligible employees with 12 weeks of unpaid, job-protected leave every year while retaining group health insurance benefits. It was established to foster a balance between the demands of work and family life and help employees prioritize their health. 

The FMLA also provides for military caregiver leave. Eligible employees are entitled to 26 weeks of job-protected leave during a 12-month period to care for a covered servicemember with a serious illness or injury.

The California Family Rights Act (CFRA) generally mirrors the FMLA, with a few minor differences. 

Is My Business Covered Under the Family and Medical Leave Act? Are We Required to Provide FMLA Leave?

If your private business has 50 or more employees for at least 20 workweeks during either the current or previous calendar year, you are required to comply with the FMLA. Public agencies, primary and secondary schools, and the federal government must comply with FMLA leave standards regardless of the number of people they employ. 

The typical FMLA leave at a start-up company in Los Angeles would be subject to these guidelines. If the start-up employs more than 50 people, it is required to provide FMLA leave. If a business is growing but does not yet have 50 or more employees, the employer should be prepared to implement an FMLA policy and comply with the FMLA the moment they meet the requirements for coverage. 

The recent passage of SB 1383 expanded the list of employers required to provide CFRA leave. The updated CFRA requires employers with 5 or more employees to provide the standard 12 weeks of job-protected CFRA/FMLA leave. 

When Is an Employee Qualified to Take FMLA Leave?

In order to qualify for FMLA leave, an employee must meet the following criteria:

  • They must work for a covered employer. (See the previous question.)
  • They worked at least 1,250 hours during the 12 months prior to the leave of absence.
  • They work at a location with at least 50 employees within a 75-mile radius.
  • They have worked for the company for at least 12 months. The 12 months are not required to be consecutive for an employee to qualify for FMLA leave.

The CFRA does not include the 75-mile radius requirement, extending employee eligibility to locations with at least 5 employees with no requirement to be working within a specific radius. 

Employees must also give reasonable notice to their employer of the need for leave in order to qualify. If the need for FMLA leave is foreseeable (for example, leave for a planned medical treatment or the birth of a child), employees should give at least 30 days notice. Often, the need for FMLA leave is not foreseeable—depending on the circumstances, an employee may need leave at a moment’s notice. Federal law requires employees give employers notice of absence as soon as is reasonably practicable. 

What Situations Qualify an Employee for FMLA Leave?

An employee is able to use FMLA leave if they need time off for the following situations:

  • For unpaid maternity leave or paternity leave after the birth of a child and to bond with a newborn child. 
  • For the placement of a child for adoption or foster care and subsequent care and bonding with that child.
  • To care for an immediate family member with a serious health condition.
  • For medical leave if the employee has a serious health condition and cannot work
  • For “qualifying exigencies” resulting from an immediate family member’s active duty in the military, such as short-notice deployment, military events, counseling, and more.

Under these circumstances, an employee is also eligible for CFRA leave. The CFRA also allows employees to take leave to care for a broader range of family members with serious health conditions including grandparents, grandchildren, siblings, and domestic partners. 

Do Employees Have to Take FMLA Leave All At Once?

Employees may take FMLA or CFRA leave intermittently if medically necessary. Depending on the employee’s needs, they may take the leave in a single block of time, in separate, smaller blocks (intermittently), or they may use the FMLA leave to reduce their normal work schedule. Chronic conditions like migraines and other health conditions that require frequent medical care are common reasons for intermittent leave. If a circumstance qualifies for both FMLA and CFRA leave, the leaves will run concurrently.

Does the FMLA Require That Employees Receive Pay While on Leave? 

No, the FMLA requires only unpaid leave; it does not mandate payment during any FMLA-protected leave. California labor law does include other laws and policies that protect employee jobs and enable employees to receive pay during their FMLA leave. 

California laws which expand job protections for FMLA-related leave include the California Family Rights Act and Pregnancy Disability Leave. Laws regarding wage replacement and paid leave include the Paid Family Leave program and State Disability Insurance. Employers may also allow employees to use company sick leave, paid vacation leave, or other employer-provided leave, to provide wages during FMLA leave. 

What Are Common FMLA Pitfalls for Employers? (Denial of Full FMLA rights, Retaliation, Termination)

Employers play a key role in providing FMLA and CFRA rights to their employees. And without a clear understanding of FMLA policy, it becomes all too easy to violate the FMLA, leaving an employer open to costly litigation. Common ways companies violate the FMLA include:

  • Denying employees covered FMLA absences by failing to recognize serious health conditions or other qualifying FMLA conditions. 
  • Failing to notify employees of their right to FMLA leave. Employers are required to post a notice explaining the FMLA provisions and include an FMLA notice in their employee handbook to ensure employees recognize their rights and know how to access and utilize FMLA leave.
  • Disciplining or firing employees for taking FMLA leave. The FMLA prohibits employer retaliation against an employee for taking eligible FMLA leave. This means the employer cannot terminate an employee on FMLA leave for being absent or otherwise discipline an employee for taking absences covered by FMLA leave. 
  • Failing to properly reinstate an employee after FMLA leave by reinstating the employee to a lesser position, misclassifying a returning employee, or otherwise imposing limits on benefits after FMLA leave. Under the FMLA, employees are entitled to be reinstated to the same position they held previously, or to an equivalent position with comparable pay, benefits, schedule, and duties. 

How Can a California Employment Lawyer Help with My Company’s FMLA Case?

Even with an understanding of the Family and Medical Leave Act and the California Family Rights Act, the rules for taking leave and complying with the FMLA and other state family leave laws can be confusing. An experienced California employment attorney can help give you peace of mind. An employment lawyer can help your business ensure your handbook is up-to-date with all required FMLA notices, and they can help ensure your FMLA policies are robust enough to handle any situation. The knowledgeable attorneys at Steinberg Law will help prevent FMLA violations, lower your risk of litigation, and defend your company if FMLA claims are filed. 


If you have questions about the FMLA and how it can affect your California business, contact Steinberg Law for a consultation today.

Author: kevensteinberg