March 2010
RETRACTION:
In the February issue of the Star and Shield, SEBA ran a previous article of Mary Blanco's. Please note that the reference about mandated overtime shifts should have been deleted. SEBA is sorry for any misunderstanding this might have caused.
The California Family Rights Act (CFRA)
Government Code 12945.1 and 12945.2 of the Fair Employment and Housing Act contain provisions relating to family care and medical leave entitlement. It is similar to the Family Medical Leave Act (FMLA), a federal law enforced by the United States Department of Labor. The State Department of Fair Employment and Housing (DFEH) enforces the CFRA. Where differences between federal and state law exist, employers should comply with those provisions that are most beneficial to the employee.
An employee may take a CFRA leave for the birth of a child for purposes of bonding, for placement of a child in the employee's family for adoption or foster care, for the serious health condition of the employee's child, parent, or spouse, and for the employee's own serious health condition. A maximum of up to 12 work-weeks in a 12-month period may be taken. It does not need to be taken in one continuous period of time.
To be eligible for a CFRA leave, an employee must be either a full-time or part-time employee working in California, have more than 12 months of service with the employer, have worked at least 1,250 hours in a 12-month period before the date leave begins, and work at a location in which the employer has at least 50 employees within 75 miles of the employee's work site.
If both parents are eligible for CFRA leave but are employed by the same employer, that employer may limit leave for the birth, adoption or foster care placement of their child to 12 workweeks in a 12-month period between the two parents.
What constitutes a serious health condition? An illness, injury, impairment, or physical or mental condition of the employee that involves either (1) inpatient care (i.e. an overnight stay) in a hospital, hospice, or residential health care facility or (2) continuing treatment or supervision by a health care provider.
An employee or employee's spokesperson shall provide at least verbal notice sufficient to make the employer aware the employee needs a CFRA-qualifying leave, state the reason for the leave, and the anticipated timing and duration of the leave. An employer may require 30 days advance notice before a CFRA leave is to begin if the need for the leave is foreseeable. If 30 days is not practical (i.e. lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency), notice must be given as soon as possible. A Request for Extended Sick and Special leave form must be completed, signed by the employee as soon as possible, and submitted to the supervisor. For those of you employed in 24-hour institutions, if there is an immediate need to take time off, contact your watch commander as soon as possible. The employer shall respond to a request for CFRA leave as soon as possible but within ten calendar days after receiving the request.
The employer may require written communication from the health care provider of the child, parent, spouse or employee with a serious health condition. The employer may not require the certification to identify the serious health condition. Certification is sufficient if it includes (1) the date on which the serious health condition commenced, (2) the probable duration of the condition, (3) an estimate of the amount of time the employee needs to care for the sick family member, (4) a statement that the serious health condition warrants participation of a family member to provide care during the period of treatment or medical supervision, or (5) a statement that the employee, due to the serious health condition, is unable to perform one or more of the essential functions of his or her job. "Warrants the participation of the employee" includes, but is not limited to, providing psychological comfort, arranging "third party" care for the care of the child, parent or spouse, as well as directly providing, or participating in the medical care.
When the CFRA leave is taken for the serious health condition of a parent, child, or spouse or for the serious health condition of the employee, leave may be taken intermittently or on a reduced work schedule when medically necessary as determined by the health care provider of the person with the serious health condition.
Upon granting an employee CFRA leave, the employer shall guarantee reinstatement to the same or comparable position. 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. The work should be substantially the same, performed at the same or geographically proximate work site, and ordinarily means the same shift or same equivalent work schedule.
What I have discussed today in this article are just the basics of this law that gives an eligible employee the right to take time off to welcome a new addition to their family or time off to care for him/herself or a family member who has a serious health condition. Don't be intimated by the term "serious health condition." This could apply to virtually any condition that requires you or your family member to "continuing treatment or supervision by a health care provider." For example, a person who has a history of having debilitating migraines would be entitled to take time off on an intermittent basis without worrying that he or she is going to lose their job or that their absence will be reflected negatively on their work performance evaluation. Another example would be a parent who has a child with asthma. When the child has an asthma attack that requires the parent to stay home and care for the child until the child is stabilized, this employee would also be protected under the CFRA. I mention these types of scenarios because the average employee would not think that this would or could be an eligible "serious health condition."
I worked for the DFEH as an investigator for approximately four years so I am very familiar with the CFRA. In fact the two situations I mentioned were actually cases that I investigated while employed with DFEH.
I decided to write this article because I have received a lot of requests for information on this subject from members. Usually, the request is for information from a member regarding time off for the birth of a child. However, I have had many calls regarding the use of leave time to care for a parent, child or his/herself. I just wanted you to know what your rights are under the CFRA.
Members, if you have any questions regarding this issue, please contact your field representative for assistance.
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