Wrongfully Denied Leave

Have you been wrongfully denied intermittent leave under the federal Family Medical Leave Act, or the California Family Rights Act?  Both the FMLA and CFRA provide employees with the right to take up to 12 weeks of time per year away from work in order to attend to a qualifying family-related issue, whether the time is taken in one block, or intermittently.

Under both the FMLA and CFRA, in order for an employee to be eligible for leave, he or she must have worked for their employer for at least 12 months, and for at least 1,250 hours in the 12 months immediately preceding the start of the leave period.  Further, the employee must work on a site where there are at least 50 co-employees within a 75-mile radius.  To qualify for intermittent leave, an employee can be required to provide a complete and thorough medical certification stating that there is a need for such, and they can also be required to comply with an employer’s policy regarding notice, especially if it is in writing.  However, if an employee meets these requirements, and has a qualifying reason for needing leave, the law protects the employee’s right to leave.

Both the FMLA and the CFRA allow qualifying employees time off for:  (1) the birth of a child or adoption or foster care placement of a child; (2) to care for an immediate family member (a spouse, child, or parent) with a serious health condition; or (3) when the employee is unable to work because of a serious health condition.  While this seems rather straight forward, these categories have become some of the most litigated areas in employment law.

A serious health condition is considered any illness, injury, impairment, or physical or mental condition that causes or requires: any period of incapacity or treatment in connection with, or after inpatient care; any period of incapacity requiring absence from work, school, or other regular daily activities, of more than 3 consecutive calendar days; ongoing treatment by or under the supervision of a healthcare provider for a chronic or long-term health condition that is incurable; restorative dental or plastic surgery after an accident or injury.  Common examples of conditions qualifying for intermittent leave under the FMLA or CFRA include, but are by no means limited to, chronic health conditions like bad backs or migraine headaches, surgeries and recoveries, medical treatments, or regular appointments for chemotherapy.

One major difference that exists between the two laws is their treatment of pregnant employees.  Although the CFRA provides a new mother with the right to leave after childbirth, it provides no protection pre-birth (the FMLA does).  Should a California employee suffer a disabling condition related to pregnancy prior to giving birth, she would have the option of seeking protected leave under the federal FMLA, or under an alternative California law, the Fair Employment and Housing Act (FEHA).  California’s FEHA does provide protection for pregnancy-related disabilities, it applies to all employers who have five or more employees, and it allows employees who have conditions related to pregnancy or childbirth to take up to four months of protected paid Pregnancy Disability Leave.

Perhaps most importantly, anti-retaliation and anti-discrimination laws protect employees from any kind of recourse an employer might be tempted to take in response to a valid request for leave.  If you feel that you may have been wrongfully denied your rights, proper leave, or even retaliated or discriminated against because you exercised your rights, your timely action is absolutely vital.  With the experienced employment law attorneys at Stephen Danz & Associates, the law is your ally and your rights will be yours again.  Contact us today for a free consultation to discuss your circumstances and legal options.