Pocket Guide to the Family and Medical Leave Acts (7th ed., 2020)

A “user friendly” guide to the federal Family and Medical Leave Act and the California Family Rights Act — this new edition replaces the 2018 guide, and brings California employers and employees up to date on the most current information and case law.

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.

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.

Table of Contents

1. Introduction (Page 1)
2. Employers Covered by the Acts (Page 3)
   1. FMLA (Page 3)
   2. CFRA (Page 4)
3. Employees Eligible for Leave (Page 5)
   1. FMLA (Page 5)
   1. Calculation of 12 Months (Page 5)
   2. 1,250 Hours of Service (Page 6)
   3. Employees Called to Active Duty (Page 7)
   4. Fifty Employee Determination (Page 7)
   2. CFRA (Page 7)
4. Employee’s Entitlement to Leave Time (Page 9)
   1. FMLA (Page 9)
   1. Computing the 12-Month Period (Page 10)
   2. Holiday Occurring While Employee Is on Leave (Page 10)
   3. No Minimum Amount of Leave (Page 11)
   4. Intermittent Leave or Leave on a Reduced Schedule (Page 11)
   5. Calculating Leave or Leave on a Reduced Leave Schedule (Page 13)
   2. CFRA (Page 13)
   1. Computing the 12-Month Period (Page 13)
   2. Twelve Workweeks (Page 13)
   3. Intermittent Leave or Reduced Leave Schedule (Page 14)
   4. Holiday Occurring While Employee Is on Leave (Page 14)
   5. Minimum Duration of Leave (Page 14)
   3. Overlap of the Two Acts (Page 15)
5. Reasons to Permit Leave (Page 16)
   1. FMLA (Page 16)
   1. Definitions (Page 17)
   2. Leave Is Permitted for Many Family Care Reasons (Page 25)
   2. CFRA (Page 26)
   1. Leave to Care for a Family Member (Page 26)
   2. Leave May Be Taken for the Serious Health Condition of a Domestic Partner (Page 27)
   3. Relationship Between CFRA Leave and California Pregnancy Disability Leave (Page 28)
   4. Relationship Between CFRA Leave and FMLA Family Military Leaves (Page 31)
6. 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 (Page 32)
   1. FMLA (Page 32)
   2. CFRA (Page 33)
   3. Overlap of the Two Acts (Page 33)
7. Employee Notice to Employer When Requesting Leave (Page 35)
   1. FMLA (Page 35)
   2. CFRA (Page 36)
   3. Does an Employee Specifically Have to Request FMLA/CFRA Leave? (Page 37)
   4. Overlap of the Two Acts (Page 38)
8. Employee’s Requirement to Provide Medical Certification to Support a Request for Leave (Page 39)
   1. FMLA (Page 39)
   1. Timing of Employer’s Request (Page 40)
   2. Employee’s Time to Provide (Page 40)
   3. Consequences for Failure to Provide an Adequate or Timely Certification (Page 40)
   4. What Information May Be Required in a Medical Certification? (Page 41)
   5. What May an Employer Do if It Questions the Adequacy of a Medical Certification? (Page 41)
   6. Second or Third Medical Opinion (Page 42)
   7. Recertification (Page 43)
   2. CFRA (Page 44)
   1. Certifications for an Employee’s Child, Parent, or Spouse (Page 44)
   2. Certification for the Employee’s Own Serious Health Condition (Page 45)
   3. Second and Third Opinions (Page 46)
   4. Time to Request and Provide Certification (Page 46)
   3. Overlap of the Two Acts (Page 47)
9. Employer’s Obligations in Granting Leave and Providing Employees With Notification of Their Rights to Leave (Page 47)
   1. FMLA (Page 48)
   1. General Notice (Page 48)
   2. Eligibility Notice (Page 49)
   3. Rights and Responsibilities Notice (Page 50)
   4. Designation Notice (Page 52)
   2. CFRA (Page 56)
   1. Granting Leave (Page 56)
   2. Notice of Right to Leave (Page 57)
   3. Retroactive Designation of Leave (Page 58)
   3. Overlap of the Two Acts (Page 58)
10. Employee’s Entitlement to Pay While on Leave (Page 59)
    1. FMLA (Page 59)
    1. Employee’s Right to Substitute Paid Leaves for Unpaid FMLA Leave (Page 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 (Page 60)
    2. CFRA (Page 63)
    1. Employee’s Right to Use Paid Leave Concurrently With Family Leave (Page 63)
    2. Employers’ Right to Require Employees to Use Paid Accrued Leaves Concurrently With Non-CFRA Leave That Is CFRA Qualifying (Page 64)
11. Medical Insurance or Other Benefits While on Family and Medical Care Leave (Page 66)
    1. FMLA (Page 67)
    1. How Can Employees on Leave Pay Their Share of Health Insurance Premiums? (Page 68)
    2. What Are the Consequences if an Employee Fails to Make Timely Health Insurance Premium Payments? (Page 71)
    3. Employee Fails to Return From Leave (Page 72)
    4. Other Benefits (Page 75)
    2. CFRA (Page 75)
    1. Obligation to Pay for Health Insurance When an Employee Is on Pregnancy Disability Leave, FMLA Leave, and CFRA Leave (Page 77)
    2. Overlap of the Two Acts (Page 78)
12. Employee’s Status While on Leave (Page 79)
13. Military-Related Leaves Under the FMLA (Page 80)
    1. Qualifying Exigency Leave (Page 81)
    1. Definition of Qualifying Exigency (Page 81)
    2. Amount of Leave (Page 85)
    3. Notice of Need for Qualifying Exigency Leave (Page 85)
    4. Certification (Page 85)
    2. Military Caregiver Leave (Page 87)
    1. Amount of Leave (Page 88)
    2. Notice of Need for Military Caregiver Leave (Page 89)
    3. Certification (Page 90)
    3. CFRA (Page 95)
14. Reinstatement Following Leave (Page 96)
    1. FMLA (Page 96)
    1. An Equivalent Position (Page 96)
    2. Periodic Reporting of Condition (Page 97)
    3. Fitness-for-Duty Certification (Page 98)
    4. Defenses to Denying Certification (Page 99)
    2. CFRA (Page 102)
    1. Guarantee of Reinstatement to ‘Same’ or ‘Comparable’ Position (Page 102)
    2. Date of Reinstatement (Page 102)
    3. FMLA’s ‘Equivalent’ Position Compared to CFRA’s ‘Comparable’ Position (Page 102)
    4. Defenses to Denying Reinstatement (Page 103)
    5. Fitness-for-Duty Certification (Page 103)
15. Available Remedies for Violation of the Acts (Page 105)
    1. FMLA (Page 105)
    2. CFRA (Page 106)
16. Employer’s Recordkeeping Obligations (Page 107)
    1. FMLA (Page 107)
    1. What Records Must Be Maintained? (Page 107)
    2. Fair Labor Standards Act Exempt Employees (Page 108)
    2. CFRA (Page 109)
17. Protections for Employees Who Request Leave or Assert Rights (Page 110)
    1. FMLA (Page 110)
    2. CRFA (Page 111)
18. Coordination With Disability Discrimination Laws (Page 112)
    1. Keeping Track of Family and Medical Care Leave (Page 112)
    2. Coverage Is Different Under the Two Laws (Page 112)
    1. FMLA (Page 113)
    2. CFRA (Page 114)
19. Joint-Employer Coverage (Page 115)
    1. FMLA (Page 116)
    1. How to Determine There Is a Joint Employer Relationship (Page 117)
    2. Who Handles FMLA Notice Requirements (Page 117)
    3. Whether Jointly Employed Employees Count for Eligibility Purposes (Page 118)
    4. Who Is Responsible for FMLA Compliance (Page 118)
    2. CFRA (Page 119)
20. Court Decisions (Page 120)
    1. Discrimination/Retaliation (Page 120)
    2. Notice of Need for, and Right to, Leave (Page 121)
    3. Eligibility for Leave (Page 125)
    4. State Immunity Under the FMLA (Page 128)
    5. Wrongful Termination (Page 129)
    6. Serious Health Condition (Page 130)
    7. Reinstatement Rights (Page 131)
    8. Exhaustion of Administrative Remedies (Page 133)
    9. Liability (Page 133)
    10. Medical Certification (Page 134)
21. Table of Cases (Page 135)
22. Index (Page 140)