California employees are allowed to take a protected leave of absence from work if they have a serious medical condition. The law that forces employers to grant workers this time off is called the California Family Rights Act; commonly known as “CFRA.”
But not everyone is eligible for CFRA. This page identifies who is eligible, how long they can take off of work, and the monetary remedies available if their employer violates their rights.
Here are shortcuts to specific topics below:
- Who is eligible to take a leave of absence?
- Do you qualify for CFRA?
- How much time are you allowed to take off?
- Do you need to show a doctor’s note to your employer?
- Do you get paid during your leave?
- What if your employer denies your leave?
- What if your employer retaliates against you for requesting time off or going on a leave?
- When do you need an attorney?
- What is the deadline to file a case?
- How much money will you get if you file a lawsuit?
- CFRA vs. FMLA
If you would rather watch this video on YouTube, click here.
The California Family Rights Act can be found in California’s Government Code.1 It is also called the Moore-Brown-Roberti Family Rights Act (although most people just call it CFRA). It is a part of the Fair Employment & Housing Act (“FEHA”).
Who is Eligible to Take a Leave of Absence Under CFRA?
If your employment qualifies, CFRA permits you to take a leave of absence from work if:
- You need time off for the birth of a child,
- You need time off because your child has a serious health condition,
- You need time off to care for a parent or spouse who has a serious health condition, or
- You need time off because you have a serious health condition that makes you unable to perform the functions of your job.
CFRA does not, however, permit you to take a leave of absence for your own disability due to pregnancy, childbirth, or related medical conditions. But don’t worry, another CA law does allow you to do this. That law is called Pregnancy Disability Leave.2 Also, please note, we have a specific page on maternity leave here.
What is a “Serious Health Condition?”
According to the law, a serious health condition usually means an illness, injury, impairment, or physical or mental condition that involves one of the following things:
- Inpatient care in a hospital, hospice, or residential health care facility (this means the patient is staying in the hospital), or
- Continuing treatment or continuing supervision by a health care worker.3
Additionally, the health condition must prevent you from being able to do your job. Specifically:
“CFRA’s regulations provide that, for an employee to be entitled to a medical leave for her own serious health condition, the condition must cause her to be unable to work at all or unable to perform one or more of the essential functions of her position.”Neisendorf v. Levi Strauss & Co. (2006) 143 CA 4th 509, 516-517
Generally, voluntary or cosmetic treatments are not considered a “serious health condition” under CFRA unless it is related to an accident or illness, or inpatient care is required due to complications.
Do You Qualify for CFRA?
Unfortunately, CFRA does not apply to all employees in California. You can only take a leave of absence under this law when:
- You have been working for the company for at least 12 months,
- During those 12 months, you have worked at least 1250 hours (this averages out to a little less than 5hrs per workday),
- Your employer is doing business in California, and
- Your employer has 50 or more employees within a 75-mile radius of your working location. The employee threshold of “50 or more employees” goes down to “at least 20 employees” within 75 miles starting on January 1, 2020. 4
There are other laws that apply under different situations. So, if you don’t qualify for CFRA, we recommend that you read about the other leave of absence laws in California here. Here is also a great breakdown by the Department of Fair Employment & Housing.
How Much Time Are You Allowed to Take Off?
The California Family Rights Act provides employees with the following benefits:
- You may take up to 12 workweeks off in any 12-month period.5 You can take all of this in one shot, or you can take time off intermittently. That means you can take a little time here, a little there, on an “as-needed” basis.6
- Your job is legally protected. This means that your employer must return you to the same or comparable position when your leave is finished. A “comparable job” means that the job you return to is the same or close to the same as your former job in responsibilities, duties, pay, benefits, working conditions, and schedule. It should be at the same location where you worked prior to the leave of absence. California court’s will likely allow a nearby location as well.7
- If you are a part of a group health plan and get health insurance through your company, your employer must continue to pay for your health and dental insurance during your absence. However, your employer is allowed to demand that you pay for these premiums if you do not return at the end of your leave.8
- During your leave, you continue to accrue seniority. Employers are not allowed to claim your leave of absence as a break in service. This really only applies to employees under a union or collective bargaining agreement.9
Do You Need to Show a Doctor’s Note to Your Company?
Yes, you should provide a physician certification for your leave of absence. But to answer this question completely, we need to cover several subjects.
First of all, if your leave of absence is foreseeable, you should give your employer reasonable advanced.10 The law also says that, if your leave is foreseeable due to a planned medical treatment, you should make a reasonable effort to schedule the treatment at a time to avoid disruption to the operations of the employer (so long as it is O.K. with your doctor).11
On the other hand, if your leave of absence is due to a medical emergency (meaning you could not have foreseen it), then you are required to give your employer notice “as soon as practicable.”12 This means do it as soon as possible.
You should also retain proof that you’ve given notice to your employer. Therefore, you should give notice to your employer in writing (preferably in an email).
Second, if your leave of absence is to care for a child, parent, or spouse, the law permits your employer to request a doctor’s note. This physician certification should include the following things:
- The date when the serious health condition commenced,
- The probable duration of the condition,
- An estimate of the amount of time that the employee needs to take off, and
- The health condition warrants the participation of a family member (namely you) to provide care during a period of the treatment.13
Third, if your leave is for your own serious health condition, your employer is allowed to require a doctor’s note. This doctor certification is sufficient if it details:
- The date the serious health condition commenced,
- The probable duration of the condition,
- A statement that, due to the health condition, you are unable to perform the functions of your job.14
Your employer is allowed to request re-certifications from your doctor on a reasonable basis if additional leave is required.
What if your company doesn’t believe you? If your employer has any reason to doubt the truthfulness of the doctor’s note at issue, the employer is allowed, at its own expense, to require the employee to obtain the opinion of a second doctor.15
Finally, as a condition of returning to work, your company is allowed to request a doctor’s note that you are able to resume work. However, this must be a uniform policy that the employer applies to everyone.16
Do You Get Paid During Your Leave?
Generally, you do not get paid for time off under CFRA.17 However, if your employer has a benefit’s package that pays employees for time off, then you may qualify for pay depending on the language of your benefits package. But that is not standard. The vast majority of people taking time off under CFRA are unpaid.
But what if you have accrued paid or sick time stored up? It’s very common that the person who needs to take time off, already has accrued time off, sick leave, or paid-time-off (commonly called PTO). What happens then?
Generally, the employee can elect to use this paid form of time off instead of the unpaid leave of absence.18 Once the PTO or accrued time is used up, then the employee can switch to unpaid time off.
Some employees don’t want to use their PTO. Can your employer force you to use PTO instead of unpaid leave of absence time? Yes, your employer can require you to use your PTO.19
What if Your Employer Denies Your Leave?
Just because the law permits you to take a leave of absence doesn’t always mean your employer is going to be happy about it. In fact, some companies will proudly violate the law and dare you to challenge them.
Should you quit your job? No, quitting is usually a bad option if your employer has denied your leave of absence. Quitting might feel like the right option, but quitting likely hurts your legal case in the long run.
If your employer denies your leave, you have two different options:
- Complain in writing to the appropriate authority at your company. Make sure you make this complaint properly (watch Mr. Robertson’s YouTube video on how to do this here). Include your doctor’s note and be respectful and helpful. Do not threaten the company. Make sure you identify that you need to take the leave of absence because you need to care for yourself, son, husband, or mother who has a serious health condition. Hopefully, this action will be successful.
- If your complaint is unsuccessful, then contact an attorney. The attorney may advise you to send a written letter (with your doctor’s note attached) saying that you plan to return and go on your leave anyway. The lawyer may advise you, “Don’t quit. Make it clear you plan to return to work and then just go on your leave.” Obviously, the serious health condition that precipitated your need for the leave isn’t just going to disappear. Your serious health condition, or the condition of your child, spouse, parent likely takes priority over your job. But every situation is different so it is best to speak with a lawyer before taking any action like this.
If your employer refuses to let you return, then you can take legal action including filing a lawsuit (more on this below). The law provides you with multiple remedies.
What if Your Employer Retaliates Against You for Requesting Time Off or Going on a Leave?
According to the California Family Rights Act, it is unlawful for a company to discharge, suspend, fine, expel, or discriminate against any employee because:
- The person requested time off under this law,
- The person actually went on a leave of absence under this law
- The person gave information or testimony in any legal inquiry or proceeding related to rights guaranteed by CFRA.20
CFRA also has a provision that states:
“It shall be an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.”CA Government Code § 12945.2(t)
If you feel that your company has retaliated against you for exercising any right under CFRA, we recommend that you review the next section to see if you should seek the advice of an attorney. We have only briefly covered this topic here. If you want to know more about retaliation, we cover it extensively here.
When Should You Contact a Lawyer?
The timing of your call to an attorney is critical in a CFRA case. If you call too soon, the lawyer will probably tell you to call back if things get more serious. However, if you call too late, you may make a serious mistake and ruin your case (by missing a deadline or signing a severance agreement).
We usually tell people to call after they’ve been fired or if the company denies your leave and you absolutely must leave anyway. If the company fires you, call an attorney before you sign any paperwork (such as a severance package).
If you are still employed, it is unlikely that a lawyer like Mr. Robertson will step in to help save your job. Unfortunately, when employees hire a lawyer when they are still employed, it usually makes everything worse. But if your situation has become absolutely untenable, call Mr. Robertson for a consultation.
How Much Does a Lawyer Cost?
Lawyers like Mr. Robertson typically represent individuals with leave of absence issues on a contingency fee. That means the lawyer gets paid a percentage of the total settlement amount. Our client’s typically do not pay any money out of pocket.
This fee structure is ideal because most people who just got fired don’t have money to spend on legal fees. So how much the lawyer gets paid depends on the percentage that the lawyer charges and how much your case settles for. If you want to know how much Mr. Robertson charges, give our office a call for a free consultation.
What is the Deadline to File a CFRA Case?
There are deadlines in all aspects of employment law. These are called statutes of limitations.
What is the statute of limitations for a CFRA case? Simple, a person has one year from the violation of law to get a “right-to-sue” letter from the Department of Fair Employment & Housing. Usually, the employee’s lawyer will acquire this for the person. After that, the individual has one year from the date he or she acquired the right-to-sue from the DFEH to file a case in court.21
While this might seem like a long time, it isn’t. Call a lawyer immediately after an adverse action (like termination) happens.
How Much Money Will You Get if You File a Lawsuit?
It depends. Generally, if you can find a good lawyer like Mr. Robertson to take your case, you should pursue it. Good contingency lawyers like Mr. Robertson do not take cases unless they are confident they can get a significant settlement.
If you would prefer to watch this video on YouTube, click here.
But to understand how much your case might be worth you need to understand how remedies work in employment law. You are able to collect the following types of damages:
- Lost Wages – You can win the money you lost due to the company firing you because you took a protected leave of absence. This includes the lost salary, benefits, hourly wage, bonuses, etc. If you were making $85,000 per year and then you were fired unlawfully, then you were unemployed for a full year before finding another job making $85,000, then your lost wages would be $85,000.
- Emotional Distress – If your employer violates your CFRA rights and denies your leave of absence, you are going to be distraught. This is especially true if you need time off to care for a seriously sick child or spouse. Emotional distress damages are usually much larger than your lost wages.
- Punitive Damages – If the company acted with malice, oppression, or fraud in its conduct, you may be able to win punitive damages. These are damages to punish the company for acting horribly. Obviously, these are very hard to win and they are rare. But if you have a good case, these can be extremely large.
- Attorney’s Fees – While most lawyers like Mr. Robertson work on a contingency fee, the law permits plaintiffs to recover attorney’s fees on top of other types of damages in leave of absence cases like CFRA. This directly benefits you because it increases the settlement value of your case (most cases settle).
It’s almost impossible for a victim to accurately estimate how much their case might be worth. If you have a case and want to know more about it, contact our office for a free consultation.
What is the Difference Between CFRA & FMLA?
The Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) are very similar. CFRA was modeled off of FMLA. However, there are some key differences that you should be aware of.
- Starting in 2020, CFRA applies to employers with 20 or more employees within 75 miles, FMLA only applies to employers with 50 or more employees.
- In a lawsuit under CFRA, you can recover money for the emotional distress you suffered. You cannot collect emotional distress damages under FMLA.
- There is no cap on damages for a claim under CFRA, there is under FMLA.
- FMLA is a federal law, passed by the United States. CFRA is a California law and only applies only to California workers.
- CFRA covers domestic partnerships and treats them the same as spouses; FMLA does not.
- Disability due to pregnancy is covered by FMLA. It is not covered by CFRA. But that is O.K. because CA has a better law for pregnant women called Pregnancy Disability Leave.
- CFRA allows employees to take intermittent leave for bonding time with a new child.
- Federal employees working in CA are covered under FMLA, not CFRA.
- FMLA covers “qualifying exigency” due to an employee’s or family member’s active military service; CFRA does not cover this.
- FMLA allows taking a leave of absence leave to care for a covered service member who is a spouse, child, parent, or next of kin that is ill or injured (up to 26 weeks in a 12-month period); CFRA only does 12 weeks.
This is just a short list. There are more differences but these are the main ones that concern most people. Obviously, California workers are lucky to have CFRA over FMLA. If you want to know more about FMLA, click here.
Can I Take 12 Weeks Off Under CFRA and Then Another 12 Weeks Under FMLA?
No, CFRA explicitly says:
“Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the FMLA….”22CA Government Code § 12945.2(s)
The aggregate amount of leave taken under CFRA or the FMLA, or both, shall not exceed 12 workweeks in a 12-month period. However, pregnancy disability leave can be taken after CFRA or FMLA.
If you need a lawyer, call Branigan Robertson for a free consultation. Mr. Robertson has extensive experience litigating CFRA cases.
- CA Government Code §12945.1, 12954.2 and 19702.3
- CA Government Code § 12945
- CA Government Code § 12945.2(C)(8)
- CA Government Code § 12945.2(a) & 12945.6(a)(1)
- CA Government Code § 19245.2(a)
- CA Government Code § 19245.2(p)
- CA Government Code § 12945.2(C)(4)
- CA Government Code § 12945.2(f)
- CA Government Code § 12945.2(g)
- CA Government Code § 12945.2(h)
- CA Government Code § 12945.2(i)
- 2 CA Code of Regulations § 11091(a)(3)
- CA Government Code § 12945.2(j)(1)
- CA Government Code § 12945.2(k)
- CA Government Code § 12945.2(k)(3)
- CA Government Code § 12945.2(k)(4)
- CA Government Code § 12945.2(d)
- CA Government Code § 12945.2(e)
- CA Government Code § 12945.2(e)
- CA Government Code § 12945.2(l)
- CA Government Code § 12965
- CA Government Code § 12965.2(s)