Navigating the Interaction Between the FMLA and California Leaves

DMEC Staff@Work

Navigating the Interaction Between the FMLA and California Leaves: Proceed with Caution

Interaction Between FMLA-California LeavesBy Kelly D. Gemelli, JD

Of Counsel
Jackson Lewis, San Diego

The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) contain overlapping and sometimes conflicting employee rights and employer obligations regarding California family leave. Because so many employers have operations in California and because this overlap can generate significant additional obligations, California family leave laws have national impact.

In addition, California’s Fair Employment and Housing Act makes it a separate violation to fail to engage in the interactive process once an employee’s leave under the FMLA/CFRA ends. If employers fail to engage in the interactive process, they cannot rely on a number of affirmative defenses that would preclude liability.

Basic Entitlement

CFRA aligns with the FMLA in many areas, but there are significant exceptions. Both the FMLA and CFRA apply to employers with 50 or more employees on the payroll. This includes employees on the payroll who work part-time, on commission, interns, and employees who are on leave of absence but are expected to return to active employment.

The FMLA and CFRA also apply to all public employers, regardless of the number of employees. To complicate things further, in 2018, the California Parent Leave Act, S.B. 63, extended CFRA coverage to employers of 20 or more employees and all public agencies for new child bonding purposes. This new law significantly expands CFRA, which previously only applied to employers with 50 or more employees. Please note, however, that the new law only expands CFRA’s bonding leave provision; it does not require employers with fewer than 50 employees to offer CFRA leave for other reasons, such as for the employee’s or a family member’s serious health condition.

To be eligible for the FMLA or CFRA, an employee must have worked for a covered employer for at least 12 months and must have worked at least 1,250 hours in the 12 months preceding the leave. Employees must also work at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.1

The FMLA and CFRA require covered employers to provide up to 12 weeks of unpaid, job-protected leave for an employee’s own serious health condition; to care for a covered family member with a serious health condition; or to bond with a newborn, adopted, or foster child.2 In addition, FMLA (but not CFRA) allows for leave for a qualifying exigency relating to a close family member’s military service.3 The FMLA (but not CFRA) also allows eligible employees up to 26 weeks of unpaid leave to care for a seriously ill or injured service member or veteran.4

How the FMLA and CFRA Interact

Leave taken by an employee under CFRA typically runs concurrently with FMLA leave except where leave is taken under the FMLA for a disability due to pregnancy, childbirth, or related medical conditions. Leave for pregnancy or pregnancy-related disability counts only toward the employee’s FMLA leave entitlement and not toward the leave rights granted under CFRA. This is because CFRA has special provisions for leave taken for disability due to pregnancy, childbirth, or a related serious medical condition as a serious health condition of the employee.

As a result, an employee who exhausts FMLA leave for a pregnancy-related disability is still entitled to CFRA in order to bond with the newborn child. In the event an employee requests leave for her pregnancy, childbirth, or a related medical condition, employers also need to review the employee’s leave request under California’s Pregnancy Disability Leave Law (PDL).5

PDL applies to employers with five or more employees. If an employee is disabled by pregnancy, childbirth, or a related medical condition, she may qualify for up to four months of PDL. An employer may designate PDL as FMLA leave, but as stated above, CFRA specifically excludes pregnancy-related leave from coverage.6 So when an employee’s PDL/FMLA leave ends, she may then qualify for up to 12 weeks of CFRA bonding time leave, resulting in a potential total leave period of up to seven months.

For example, Betty, an employee of ABC Corporation, has been employed for nearly three years. ABC employs over 50 employees. She requested leave for her pregnancy and asked how much leave she is entitled to take. Generally, an employee on pregnancy disability will be disabled for 6 to 8 weeks following delivery. During the disability period, she will be on FMLA and PDL leave concurrently. Once the pregnancy disability ends, she will be eligible for CFRA leave for up to 12 weeks (any remaining FMLA leave will run concurrently with CFRA).

When FMLA or CFRA leave ends, an employee has a general right to be restored to the same or an equivalent position, identical to the original in terms of pay, benefits, working conditions, shift, schedule, and geographic location. Also, be aware that employers subject to the FMLA and CFRA are required to maintain group health insurance coverage for an employee on the same terms as if the employee continued to work.

Another example: Gary is an employee of ABC Corporation and has been employed for almost two years. He has requested leave for medical disability and has asked how much time he can take off. Gary will be eligible for FMLA and CFRA coverage concurrently, making him eligible for up to 12 weeks of unpaid leave.

Notification of Leave Entitlement

The clock starts running on employees’ FMLA or CFRA leave when the employer designates it as FMLA or CFRA leave and gives notice of the designation to the employee. Be aware that an employee does not need to expressly assert rights under the FMLA or CFRA or use any special terms. The employee must state, however, the reason the leave is needed, such as for medical treatment or the expected birth of a child.

If the employer does not have sufficient information about the reason for the employee’s use of leave, the employer should inquire further of the employee to determine whether the need for leave is FMLA- or CFRA-qualifying and to determine the expected start date and duration. See Moore v. Regents of Univ. of Cal. [(2016) 248 CA4th 216, 249], which held that “an employer bears the burden under CFRA, to inquire further if an employee presents the employer with a CFRA-qualifying reason for requesting leave.” The employee has a duty to respond to an employer’s questions if they are designed to determine whether an absence is potentially FMLA- or CFRA-qualifying. Failure to do so may result in the denial of the leave request.

Please note, however, that medical privacy laws in California limit the type of information an employer may require on the certification. CFRA regulations prohibit employers from asking for certain specific medical information, including the diagnosis, symptoms, or serious health condition involved.7 If an employee’s leave request is protected by both the FMLA and CFRA, the greater protections of CFRA apply.

A common mistake is not understanding the difference between a “serious health condition” and a common ailment. A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a medical provider.8 Typically, unless complications arise, minor ailments — such as the common cold, upset stomach, minor ulcers, headaches, routine dental work, earaches, and so forth — do not qualify as serious health conditions.

Family and medical leave laws also prohibit discrimination or retaliation against an employee for exercising rights under the FMLA/CFRA or for giving information or testimony about alleged violation of California or federal family and medical leave laws. Violating family, medical, parental, and pregnancy leave laws exposes an employer to a civil lawsuit or an administrative proceeding, and personal liability may fall on corporate officers, managers, and supervisors. Remedies available include financial awards to compensate for lost wages, benefits, and other monetary losses; emotional distress, punitive damages, reinstatement, and back pay, as well as significant exposure for attorneys’ fees.

Interaction with the ADA and FEHA

Many employers believe that if an employee exhausts the FMLA/CFRA-mandated leave and still cannot return to work, their job is no longer protected. This is a big mistake. Even if the employee’s leave is no longer covered by the FMLA/CFRA or was not covered in the first place, other protections may apply, including those created by the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA).

Both the ADA and FEHA obligate employers to provide a “reasonable accommodation” to a qualified individual with a disability if needed to perform the essential functions of the job as long as it does not impose an undue hardship on the employer.9 Unlike PDL or FMLA/CFRA leave, leave as a reasonable accommodation under the ADA or FEHA does not have any statutorily set time limit. Rather, as with other types of reasonable accommodations, an employer’s obligation to provide leave ends at the point at which the leave becomes an undue hardship for the employer. Neither the ADA nor FEHA requires employers to accommodate disabled employees by granting them indefinite or unlimited leave.


Each of the leave laws must be analyzed separately to determine an employee’s leave rights. Where employees are requesting pregnancy-related disability leave, the interaction of the FMLA, CFRA, and California PDL may result in extended leave times. When an employee requests time off for a reason related to or even possibly related to a disability, the employer must determine the employee’s rights under all of the relevant laws. The request should be treated as an ADA/FEHA reasonable accommodation request, as well as a FMLA/CFRA leave request. This means that an employer should initiate an interactive process with the employee to determine their limitations and identify potential reasonable accommodations. In the event you have an employee requesting leave as an accommodation, proceed with caution, and consult with legal counsel before taking adverse employment actions.


  1. See 29 USC §2611(4)(A)(i) for FMLA, and 2 Cal. Code Regs §11087(d)(1) for CFRA.
  2. See 29 USC §2612(a) for FMLA, and Govt Code §12945.2(a) for CFRA.
  3. See 29 USC §2612(a)(1)(E) for FMLA.
  4. See 29 USC §2612(a)(3) for FMLA.
  5. See Govt Code §12945 and 2 Cal Code Regs §11042(a) for California PDL Law.
  6. See Govt Code §12945.2(c)(3)(C) and 2 Cal Code Regs §11093(b) for CFRA.
  7. See 2 Cal Code Regs §11087(a)(1) for CFRA.
  8. See 29 CFR §825.113(a) and 2 Cal Code Regs §11087(q) for CFRA.
  9. See 42USC §12112(b)(5)(A) for FMLA and Govt Code §12940(m)(1) for FEHA.