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In this series of articles we will take a look at the different provisions of the law that protect employees from termination for various reasons.  In order to determine whether you have been terminated unlawfully, it helps to be educated on the rights you enjoy as an employee in the United States and in California, in particular.

The FMLA or Family Medical Leave Act and the CFRA or California Family Rights Act are laws that are similar in nature and scope, though not exactly the same.  It is clear that the CFRA extends some of the protections afforded by the older, Federal FMLA.  We will examine both of them in this article.


The Family Medical Leave Act was enacted as part of the legislative agenda of the Clinton Administration in 1993.  It was pushed through Congress in February of 1993 and took effect in August , six months later.

The FMLA provides that eligible employees of covered employers can take up to 12 work weeks of unpaid leave to attend to the serious health condition of the employee, parent, spouse or child of the employee or for pregnancy or care of a newborn child, or for adoption or foster care of a child.

In bold are those elements of the law that have been subject of scrutiny and interpretation by the courts and the U.S. Labor Department’s Wage and Hour Division of the Federal Government, the agency responsible for enforcement of the law.

An ELIGIBLE EMPLOYEE is one who has been employed with the employer for at least 12 months and has worked at least 1,250 hours over the last year.  The FMLA covers both public- and private-sector employees, but certain categories of employees are excluded, including elected officials and their personal staff members.

A COVERED EMPLOYER is one who employs at least 50 employees within a 75 mile radius of the employee in question.

12 WORK WEEKS can be twelve weeks per calendar year or twelve rolling weeks, which must be specified by the employer before the leave is requested.

The law provides protections:

  • to care for a new child, whether for the birth of a son or daughter, or for the adoption or placement of a child in foster care;
  • to care for a seriously ill family member (spouse, son, daughter, or parent) (Note: Son/daughter has been clarified by the Department of Labor to mean a child under the age of 18 or a child over the age of 18 with a mental or physical disability as defined by the American Disabilities Act, which excludes among other conditions, pregnancy and post-partum recovery from childbirth);
  • to recover from a worker’s own serious illness;
  • to care for an injured service member in the family; or
  • to address qualifying exigencies arising out of a family member’s deployment.

The FMLA requires the employer to provide certain types of protections, such as:

  • The same group health insurance benefits, including employer contributions to premiums, which would exist if the employee were not on leave.
  • Restoration to the same position upon return to work. If the same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits, and responsibility.
  • Protection of employee benefits while on leave. An employee is entitled to reinstatement of all benefits to which the employee was entitled before going on leave.
  • Protection of the employee to not have their rights under the Act interfered with or denied by an employer.
  • Protection of the employee from retaliation by an employer for exercising rights under the Act.
  • Intermittent FMLA leave for his or her own serious health condition, or the serious health condition of a family member. This includes occasional leave for doctors’ appointments for a chronic condition, treatment (e.g., physical therapy, psychological counseling, chemotherapy), or temporary periods of incapacity (e.g., severe morning sickness, asthma attack).


An employee who is subject to discrimination or wrongful termination related to a violation of the FMLA can recover damages in the form of lost or unpaid wages, reinstatement of employment and benefits, and any other out of pocket damages as a result there from, including reasonable attorney’s fees.


The California Family Rights Act, or CFRA has been amended since its enactment in 1991 to bring it into line with the FMLA.  Other laws and court decisions have carved out distinctions between the two but for the most part they remain the same.

The CFRA mirrors the FMLA in many respects.  Employees must have worked for an employer with 50 employees within a 75 mile radius for at least 12 months, having worked 1,250 hours during that year.

One major difference is that the CFRA DOES NOT cover pregnancy related disability….it only covers child birth issues AFTER the child is born.

At first glance this seems very ‘un-California like,’ but a closer analysis gives a different view.

An employee who has a pregnancy related disability…or a difficult pregnancy, is covered under the FMLA, and can take up to 12 weeks of leave under its provisions.

Since the FMLA and the CFRA generally run concurrently, you cannot take 12 weeks of leave under the FMLA and then come back and take 12 weeks of leave under the CFRA for the same condition.  The leave under both laws runs AT THE SAME TIME.

However, since the CFRA doesn’t cover pregnancy related conditions, if you were suffering from a difficult pregnancy and had to take a leave, you’d be covered under the FMLA, then when you came back to work, after the birth of your child, you’d still have 12 weeks of leave available under the CFRA to care for the child, bond or handle any other serious medical conditions that might arise.

Like the FMLA, the employer must continue to provide health related benefits (at the employees expense), and must maintain all other benefits, including seniority, and an employer must reinstate the employee to a same or similar position upon expiration of the leave.

An employer is allowed to require employees requesting leaves under either law to request said leaves prior to taking the time off.  Request requirements must be made known to the employee ahead of time, however, or they are not enforceable.  In addition, though an employer is not required to pay regular wages to an employee under either leave type, employees may use their accrued sick or vacation time to receive compensation while out on leave.

Upon granting an employee a CFRA leave, the employer must guarantee reinstatement to the same or comparable position and provide the guarantee in writing upon the request of the employee. Employment in a comparable position means employment in a position that is virtually identical to the employee’s original position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, skill, effort, and authority, must be performed at the same or geographically proximate work site, and ordinarily means the same shift or same or equivalent work schedule.   An employer may deny reinstatement to an employee if his/her position ceased to exist, such as in a lay-off.

An employer may also deny reinstatement if the employee taking the leave is a key employee (salaried and among the highest paid 10 percent) and the denial of reinstatement is necessary to prevent substantial and grievous economic injury to the operations of the employer. However, the employer must notify the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary as well as give the employee a reasonable opportunity to return to work.

Lest you think that California has abandoned the pregnant women in the state, the California Fair Employment and Housing Act(CA-FEHA), the same state law that prohibits discrimination, provides protection for pregnancy-related disabilities. It allows employees who are disabled by pregnancy, childbirth or a related medical condition to take up to four months of protected paid Pregnancy Disability Leave (PDL). However, PDL does not provide any time off for the birth or placement of a child in foster care or adoption.

If you believe that you were laid off, or denied reinstatement in violation of the FMLA, CFRA or CA-FEHA, do not hesitate to contact Stephen Danz immediately for a free consultation.

With 15 attorneys and offices in Los Angeles, Irvine, San Francisco, San Diego, Sacramento, Fresno and San Bernardino, we welcome the opportunity to discuss your concerns in absolute confidence. Our firm litigates cases with exceptional merit and will conduct an immediate and full investigation of the facts of your case. Should we mutually agree to work together, we will prepare an aggressive litigation plan. Like you, we bring integrity, passion and expertise to our job. Contact us now for a free consultation.