Navigating the Interaction Between the FMLA and California Leaves: Proceed with Caution
By Kelly D. Gemelli, JD
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.
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.
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