Pocket Guide to the Family and Medical Leave Acts

By Peter Brown
3rd edition, 2009

$16 each

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A "user friendly" guide to the federal Family and Medical Leave Act of 1993 and the California Family Rights Act of 1993. The Pocket Guide spells out who is eligible for leave, increments in which leave can be used, various methods of calculating leave entitlements, record keeping and notice requirements, and enforcement. The rights and responsibilities of both employers and employees under each of the statutes are discussed. The reader is given an understandable summary of the acts' provisions that emphasizes the differences between the two laws and advises which provision to follow.

The third edition not only incorporates all relevant changes to the 2009 FMLA regulations published by the Department of Labor, but also considers recent FMLA and CFRA case law.

This is a clear and concise reference for employees who are eligible for benefits, union officials questioned about employee entitlements, and labor relations managers charged with implementing the act. Use it as a training tool or for resolving practical, day-to-day questions as they emerge.

 

Contents

I. Introduction	1
II. Employers Covered by the Acts	3
A. FMLA	3
B. CFRA	2
III. Employees Eligible for Leave	5
A. FMLA	5
1. Calculation of 12 Months	5
2. 1,250 Hours of Service	6
3. Employees Called to Active Duty	7
4. Fifty Employee Determination	7
B. CFRA	7
IV. Employee's Entitlement to Leave Time	9
A. FMLA	9
1. Computing the 12-Month Period	10
2. Holiday Occurring While Employee Is on Leave	10
3. No Minimum Amount of Leave	11
4. Intermittent Leave or Leave on a Reduced Schedule	11
5. Calculating Leave or Leave on a Reduced Leave Schedule	12
B. CFRA	13
1. Computing the 12-Month Period	13
2. Twelve Workweeks	13
3. Intermittent Leave or Reduced Leave Schedule	13
4. Holiday Occurring While Employee Is on Leave	14
5. Minimum Duration of Leave	14
C. Overlap of the Two Acts	14
V. Reasons to Permit Leave	16
A. FMLA	16
1. Definitions	17
2. Leave Is Permitted for Many Family Care Reasons	25
B. CFRA	26
1. Leave to Care for a Family Member	26
2. Leave May Be Taken for the Serious Health Condition of a Domestic Partner	27
3. Relationship Between CFRA Leave and California Pregnancy Disability Leave	28
4. Relationship Between CFRA Leave and FMLA Family Military Leaves	30
VI. How an Employee's Right to Leave Is Affected by His or Her Spouse's or Registered Domestic Partner's Status or Use of Leave	32
A. FMLA	32
B. CFRA	33
C. Overlap of the Two Acts	33
VII. Employee Notice to Employer When Requesting Leave	35
A. FMLA	35
B. CFRA	36
C. Does an Employee Specifically Have to Request FMLA/CFRA Leave?	37
D. Overlap of the Two Acts	38
VIII. Employee's Requirement to Provide Medical Certification to Support a Request for Leave	39
A. FMLA	39
1. Request for Certification	40
2. Timing of Employer's Request	40
3. Employee's Time to Provide	40
4. Consequences for Failure to Provide an Adequate or Timely Certification	40
5. What Information May Be Required in a Medical Certification?	41
6. What May an Employer Do if It Questions the Adequcy of a Medical Certification?	42
7. Second or Third Medical Opinion	42
8. Recertification	43
B. CFRA	44
1. Certifications for an Employee's Child, Parent, Spouse, or Domestic Partner	44
2. Certification for the Employee's Own Serious Health Condition	45
3. Second and Third Opinions	46
4. Time to Request and Provide Certification	46
C. Overlap of the Two Acts	46
IX. Employer's Obligations in Granting Leave and Providing Employees With Notification of Their Rights to Leave	47
A. FMLA	47
1. General Notice	47
2. Eligibility Notice	48
3. Rights and Responsibilities Notice	49
4. Designation Notice	51
B. CFRA	55
1. Granting Leave	55
2. Notice of Right to Leave	55
3. Retroactive Designation of Leave	56
C. Overlap of the Two Acts	56
X. Employee's Entitlement to Pay While on Leave	57
A. FMLA	57
1. Employee's Right to Substitute Paid Leaves for Unpaid FMLA Leave	57
2. Employers' Right to Require Employees to Use Accrued Paid Leave Concurrently With FMLA Leave and to Use FMLA Leave Concurrently With Non-FMLA Leave That Is FMLA-Qualifying	58
B. CFRA	62
1. Employee's Right to Use Paid Leave Concurrently With Family Leave	62
2. Employers' Right to Require Employees to Use Paid Accrued Leaves Concurrently With Non-CFRA Leave That Is CFRA Qualifying	62
C. Overlap of the Two Acts	63
XI. Medical Insurance or Other Benefits While on Family and Medical Care Leave	65
A. FMLA	65
1. How Can Emplooyees on Leave Pay Their Share of Health Insurance Premiums?	66
2. What Are the Consequences if an Emplyee Fails to Make Timely Health Insurance Premium Payments?	69
3. Employee Fails to Return From Leave	70
4. Other Benefits	73
B. CFRA	73
1. Obligation to Pay for Health Insurance When an Employee Is on Pregnancy Disability Leave, FMLA Leave, and CFRA Leave	74
2. Overlap of the Two Acts	75
XII. Employee's Status While on Leave	76
XIII. Military-Related Leaves Under the FMLA	78
A. Qualifying Exigency Leave	78
1. Definition of Qualifying Exigency	78
2. Amount of Leave	82
3. Notice of Need for Qualifying Exigency Leave	82
4. Certification	82
B. Military Caregiver Leave	82
1. Amount of Leave	83
2. Notice of Need for Military Caregiver Leave	84
3. Certification	85
C. CFRA	87
XIV. Reinstatement Following Leave	88
A. FMLA	88
1. An Equivalent Position	88
2. Periodic Reporting of Condition	89
3. Fitness-for-Duty Certification	90
4. Defenses to Denying Certification	91
B. CFRA	93
1. Guarantee of Reinstatement to 'Same' or 'Comparable' Position	93
2. Date of Reinstatement	94
3. FMLA's 'Equivalent' Position Compared to CFRA's 'Comparable' Position	94
4. Defenses to Denying Reinstatement	94
5. Fitness-for-Duty Certification	95
XV. Available Remedies for Violation of the Acts	96
A. FMLA	96
B. CFRA	98
XVI. Employer's Recordkeeping Obligations	99
A. FMLA	99
1. What Records Must Be Maintained?	99
2. Fair Labor Standards Act Exempt Employees	100
B. CFRA	101
XVII. Protections for Employees Who Request Leave or Assert FMLA Rights	102
XVIII. Coordination With Disability Discimination Laws	104
A. Keeping Track of Family and Medical Care Leave	104
B. Coverage Is Different Under the Two Laws	104
1. FMLA	105
2. CFRA	106
XIX. Joint-Employer Coverage	108
A. FMLA	108
1. How to Determine There Is a Joint Employer Relationship	109
2. Who Handles FMLA Notice Requirements	109
3. Whether Jointly Employed Employees Count for Eligibility Purposes	110
4. Who Is Responsible for FMLA Compliance	110
B. CFRA	111
XX. Court Decisions	112
A. Discrimination/Retaliation	112
B. Notice of Need for, and Right to, Leave	113
C. Eligibility for Leave	117
D. State Immunity Under the FMLA	119
E. Wrongful Termination	120
F. Serious Health Condition	121
G. Reinstatement Rights	122
H. Exhaustion of Administrative Remedies	124
I. Liability	124
J. Medical Certification	125
XXI. Table of Cases	126
XXII. Index	130