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Pocket Guide to the Family and Medical Leave Acts

By Peter Brown
5th edition, 2015

$27 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 fifth edition includes:
  • Updates to the CFRA regulations issued by the California Department of Fair Employment and Housing, effective July 1, 2015
  • Summaries of new FMLA and CFRA cases
  • Discussion of where the FMLA and CFRA overlap and where they diverge

This guide offers 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.

Author Peter J. Brown is a partner in the Los Angeles law office of Liebert Cassidy Whitmore. The firm, which also maintains offices in San Francisco, Fresno, San Diego, and Sacramento, represents public agency management in all aspects of labor and employment law, including labor relations, civil litigation, and education law. The firm’s representation of cities, counties, special districts, transit authorities, school districts, and colleges throughout California encompasses all phases of counseling and representational services in negotiations, arbitrations, factfindings, and administrative proceedings before local, state, and federal boards and commissions, including the Public Employment Relations Board, Equal Employment Opportunity Commission, Department of Labor, and the Office of Civil Rights. The firm regularly handles a wide variety of labor and employment litigation, from the inception of complaints through trial and appeal, in state and federal courts.

 

Contents

I. Introduction1
II. Employers Covered by the Acts3
    A. FMLA3
    B. CFRA 4
III. Employees Eligible for Leave5
    A. FMLA5
        1. Calculation of 12 Months5
        2. 1,250 Hours of Service6
        3. Employees Called to Active Duty7
        4. Fifty Employee Determination7
    B. CFRA7
IV. Employee's Entitlement to Leave Time9
    A. FMLA9
        1. Computing the 12-Month Period10
        2. Holiday Occurring While Employee Is on Leave10
        3. No Minimum Amount of Leave11
        4. Intermittent Leave or Leave on a Reduced Schedule11
        5. Calculating Leave or Leave on a Reduced Leave Schedule 13
    B. CFRA13
        1. Computing the 12-Month Period13
        2. Twelve Workweeks13
        3. Intermittent Leave or Reduced Leave Schedule 14
        4. Holiday Occurring While Employee Is on Leave14
        5. Minimum Duration of Leave14
    C. Overlap of the Two Acts 15
V. Reasons to Permit Leave16
    A. FMLA16
        1. Definitions17
        2. Leave Is Permitted for Many Family Care Reasons25
    B. CFRA26
        1. Leave to Care for a Family Member26
        2. Leave May Be Taken for the Serious Health Condition of a Domestic Partner27
        3. Relationship Between CFRA Leave and California Pregnancy Disability Leave 28
        4. Relationship Between CFRA Leave and FMLA Family Military Leaves 31
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 Leave32
    A. FMLA32
    B. CFRA33
    C. Overlap of the Two Acts33
VII. Employee Notice to Employer When Requesting Leave35
    A. FMLA35
    B. CFRA36
    C. Does an Employee Specifically Have to Request FMLA/CFRA Leave?37
    D. Overlap of the Two Acts38
VIII. Employee's Requirement to Provide Medical Certification to Support a Request for Leave39
    A. FMLA39
        1. Timing of Employer's Request40
        2. Employee's Time to Provide40
        3. Consequences for Failure to Provide an Adequate or Timely Certification40
        4. What Information May Be Required in a Medical Certification?41
        5. What May an Employer Do if It Questions the Adequcy of a Medical Certification? 41
        6. Second or Third Medical Opinion42
        7. Recertification43
    B. CFRA44
        1. Certifications for an Employee's Child, Parent, or Spouse44
        2. Certification for the Employee's Own Serious Health Condition45
        3. Second and Third Opinions 46
        4. Time to Request and Provide Certification46
    C. Overlap of the Two Acts 47
IX. Employer's Obligations in Granting Leave and Providing Employees With Notification of Their Rights to Leave47
    A. FMLA 48
        1. General Notice 48
        2. Eligibility Notice 49
        3. Rights and Responsibilities Notice 50
        4. Designation Notice 52
    B. CFRA 56
        1. Granting Leave 56
        2. Notice of Right to Leave 57
        3. Retroactive Designation of Leave 58
    C. Overlap of the Two Acts 58
X. Employee's Entitlement to Pay While on Leave 59
    A. FMLA 59
        1. Employee's Right to Substitute Paid Leaves for Unpaid FMLA Leave 59
        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 60
    B. CFRA 63
        1. Employee's Right to Use Paid Leave Concurrently With Family Leave 63
        2. Employers' Right to Require Employees to Use Paid Accrued Leaves Concurrently With Non-CFRA Leave That Is CFRA Qualifying 64
    C. Overlap of the Two Acts 65
XI. Medical Insurance or Other Benefits While on Family and Medical Care Leave 66
    A. FMLA 67
        1. How Can Employees on Leave Pay Their Share of Health Insurance Premiums? 68
        2. What Are the Consequences if an Employee Fails to Make Timely Health Insurance Premium Payments? 71
        3. Employee Fails to Return From Leave 72
        4. Other Benefits 75
    B. CFRA 75
        1. Obligation to Pay for Health Insurance When an Employee Is on Pregnancy Disability Leave, FMLA Leave, and CFRA Leave 77
        2. Overlap of the Two Acts 78
XII. Employee's Status While on Leave 79
XIII. Military-Related Leaves Under the FMLA 80
    A. Qualifying Exigency Leave 81
        1. Definition of Qualifying Exigency 81
        2. Amount of Leave 85
        3. Notice of Need for Qualifying Exigency Leave 85
        4. Certification 85
    B. Military Caregiver Leave 87
        1. Amount of Leave 88
        2. Notice of Need for Military Caregiver Leave 89
        3. Certification 90
    C. CFRA 95
XIV. Reinstatement Following Leave 96
    A. FMLA 96
        1. An Equivalent Position 96
        2. Periodic Reporting of Condition 97
        3. Fitness-for-Duty Certification 98
        4. Defenses to Denying Certification 99
    B. CFRA 102
        1. Guarantee of Reinstatement to 'Same' or 'Comparable' Position 102
        2. Date of Reinstatement 102
        3. FMLA's 'Equivalent' Position Compared to CFRA's 'Comparable' Position 102
        4. Defenses to Denying Reinstatement 103
        5. Fitness-for-Duty Certification 103
XV. Available Remedies for Violation of the Acts 105
    A. FMLA 105
    B. CFRA 106
XVI. Employer's Recordkeeping Obligations 107
    A. FMLA 107
        1. What Records Must Be Maintained? 107
        2. Fair Labor Standards Act Exempt Employees 108
    B. CFRA 109
XVII. Protections for Employees Who Request Leave or Assert Rights 110
    A. FMLA 110
    B. CRFA 111
XVIII. Coordination With Disability Discrimination Laws 112
    A. Keeping Track of Family and Medical Care Leave 112
    B. Coverage Is Different Under the Two Laws 112
        1. FMLA 113
        2. CFRA 114
XIX. Joint-Employer Coverage 115
    A. FMLA 116
        1. How to Determine There Is a Joint Employer Relationship 117
        2. Who Handles FMLA Notice Requirements 117
        3. Whether Jointly Employed Employees Count for Eligibility Purposes 118
        4. Who Is Responsible for FMLA Compliance 118
    B. CFRA 119
XX. Court Decisions 120
    A. Discrimination/Retaliation 120
    B. Notice of Need for, and Right to, Leave 121
    C. Eligibility for Leave 125
    D. State Immunity Under the FMLA 128
    E. Wrongful Termination 129
    F. Serious Health Condition 130
    G. Reinstatement Rights 131
    H. Exhaustion of Administrative Remedies 133
    I. Liability 133
    J. Medical Certification 134
XXI. Table of Cases 135
XXII. Index 140