Leaves of Absence for Taking Care of Family Members

California Family Rights Act ("CFRA"):

The CFRA is the state law counterpart to the Family Medical Leave Act (FMLA) (29 United States Code § 2601 et seq.) allowing eligible employees to take job-protected leaves of absence from work for specified reasons. These laws contain different provisions as to which employees are covered. The CFRA confers protections to a larger portion of the workforce than the FMLA.

An eligible employee under the CFRA is entitled to "a total of 12 workweeks of leave during any 12-month period" for “Family care” of the employee’s family members for one or more of the following reasons (While the CFRA and the FMLA differ in many respects, the definitions in the federal regulations that interpret the FMLA also apply to the CFRA to the extent that they do not conflict with the CFRA. Therefore, this article will cite to FMLA regulations that apply to the CFRA where there are no relevant CFRA regulations):

• Reason of the birth of a child of the employee.
• Placement of a child with the employee in connection with adoption or foster care. California Government Code § 12945.2(b)(4)(A).
• To care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner (Family member) of the employee who has a serious health condition. California Government Code § 12945.2(b)(4)(B); 2 California Code of Regulations § 11087(i)(j).
• An exigency (e.g. the urgent and immediate need to provide childcare) related to covered active duty or call to covered active duty of an employee's spouse, domestic partner, child or parent in the United States Armed Forces. California Government Code § 12945.2(b)(4)(D); California Unemployment Insurance Code § 3302.2.

The various family members for whom an eligible employee may take a job-protected leave of absence to care for are broadly defined under the CFRA.

"Child" means a "biological, adopted, or foster child, a stepchild, a legal ward, a child of an employee or the employee's domestic partner, or a person to whom the employee stands in loco parentis." It applies to all children of the employee regardless of age or whether they are minors or adults. 2 California Code of Regulations § 11087(c). "’Loco Parentis’ means in the place of a parent; instead of a parent; charged with a parent's rights, duties, and responsibilities. It does not require a biological or legal relationship.” 2 California Code of Regulations § 11087(c).

"Parent" means "a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child. A biological or legal relationship is not necessary for a person to have stood in loco parentis to the employee as a child. Parent does not include a parent-in-law." 2 California Code of Regulations § 11087(p).

“Grandparent” means “a parent of the employee's parent.” 2 California Code of Regulations § 11087(m).

"Grandchild" means “the child of an employee's child.” 2 California Code of Regulations § 11087(l).

"Sibling" means “a person related to the employee by blood, adoption, or by having a common legal or biological parent.” 2 California Code of Regulations § 11087(v).

Spouse" means a partner in marriage or a registered domestic partner and includes same-sex partners in marriage. 2 California Code of Regulations § 11087(w).

Similarly, the term "To care for" is broadly defined to include physical and psychological care. 29 Code of Federal Regulations 825.124(a). Examples include situations where the family member is "unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor," "providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care," and when the employee needs to be a "substitute for others who normally care for the family member or covered servicemember, or to make arrangements for changes in care, such as transfer to a nursing home." 29 Code of Federal Regulations 825.124.

A ”serious health condition” is broadly defined to include a condition where the family member will require assistance for basic medical, hygiene, nutritional needs, safety, or transportation, and where the condition warrants the participation of the employee. The participation warranted may include psychological comfort or arranging for third-party care for the family member. Certification of Health Care Provider for California Family Rights Act (CFRA) or Family and Medical Leave Act (FMLA); 2 Cal. Code of Regulations §§ 11087(a)(1)(D)(1) and (u).

While CFRA leave cannot exceed 12 workweeks total for any purpose in a 12-month period, “CFRA leave does not need to be taken in one continuous period of time.” 2 Cal. Code of Regulations § 11090. An eligible employee is allowed to take the leave "intermittently or on a reduced leave schedule.” Intermittent leave is “leave taken in separate blocks of time." A reduced leave schedule is "a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time." 29 Code of Federal Regulations 825.202(a).

For an eligible employee to receive CFRA leave from his or her employer, the employee must give the employer either verbal or written notice. The employee's notice must inform the employer of the reason for the leave that is covered by the CFRA The notice must also inform the employer of the timing and duration of the anticipated leave of absence. An eligible employee is not required to divulge the specific medical condition, diagnosis, or treatment (of the employee or family member) causing the need for a CFRA leave. However, the employer may require certification of the serious medical condition. 2 California Code of Regulations § 11091. A “Certification” is a written certification from the health care provider of the family member. The certification need not identify the serious health condition involved but must include such information as the date the condition started and how long it is estimated to continue. 2 California Code of Regulations § 11087(a).

When an eligible employee returns from CFRA leave, the employer must employ the employee in the same or a comparable position. California Government Code § 12945.2(a). “Employment in the same or a comparable position” is employment “that has similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave." California Government Code § 12945.2(b)(5). “The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 2 California Code of Regulations § 11089(b). Upon request of the eligible employee, the employer must also provide the employee with a guarantee in writing that the employee will be reinstated after the CFRA leave to the same position or a comparable position. 2 California Code of Regulations § 11089.

The CFRA entitles eligible employees to a leave of absence when they become ill, injured, or disabled. The CFRA also entitles eligible employees to a leave of absence to care for a child, spouse, and other family member as specified under the law who becomes ill, injured, or disabled. However, many employers continue to discriminate against and terminate employees who request a leave of absence to care for family members. The following are examples of employment discrimination and termination practices related to requesting or taking CFRA leave. Your circumstances may not be exactly like the ones illustrated below, because each person’s situation is different. However, if something similar to the scenarios illustrated below is happening or has happened to you, feel free to contact our office.

For an eligible employee whose child becomes seriously ill or injured and requires immediate medical attention, making sure that the child receives care is a top-priority matter. The parent/employee will need to take time off from work to transport the child to the hospital and to furnish the physical and psychological care the child may require to recover before even considering returning to work. At some point, the employee may call Human Resources to inform them that he or she will need a few days off to care for the child.

When the child is released by the hospital, the parent/employee may have to continuously monitor the child’s vital signs and recovery, provide medication on a schedule set by doctors, transport the child to follow-up doctor appointments, and generally provide the child with care and nurture. Under such circumstances, the employee will need either an extended or intermittent leave of absence until the child is well enough to return to his or her routine at school, work, or day care, at which point the parent can return to his or her regular schedule at work.

The employer may not wish to accommodate this request for time off. However, rather than refusing to grant the leave at the time of the request, the employer may wait until the employee returns to work and then terminate him or her at that time, giving as a reason that things are “not working out,” that the employee was “not a good fit,” or that the employee’s position was eliminated while he or she was on leave and there are no vacant positions at the company for which the employee is qualified.

Or the employer may send a termination letter to the employee while the employee is on leave, saying that the employee’s position has been eliminated. Management might even blame the termination on a business slowdown or reduction in workforce, regardless of the actual facts. Parents have rights. If you are or have been in a situation like this, contact our office.

An employee whose spouse becomes disabled due to a serious illness or injury – or pregnancy – also has rights.

For instance, complications (e.g. high blood pressure conditions that occur exclusively during pregnancy, preeclampsia or eclampsia), may develop during the pregnancy of an employee’s spouse. The spouse’s doctor may order bed-rest at home for her for the duration of the term to prevent further complications, including injury or even death to either the fetus or the mother, or both. Depending on the severity of the condition, this may also mean frequent visits to the doctor’s office or hospitalization for monitoring.

In the event of a situation such as that described above or any serious injury or illness of the employee’s spouse, the employee may need to take time off from work to feed, bathe, nurture, and transport the disabled spouse until the spouse is healthy enough to return to his or her routine. Under such circumstances, the employee has certain rights and protections from being terminated for taking a leave of absence. However, some employers fail to recognize such rights and terminate the employee for job abandonment or some other reason, even though the employee has provided all needed documentation regarding his or her spouse’s disability and care requirements. Sometimes the employer will claim that the employee is being terminated for a specified reason, such as a performance issue involving errors made on the job, but often the timing of the termination makes it obvious that the real reason for the termination is because the employee took a leave of absence to care for his or her spouse.

In situations where an employee has a parent who becomes ill, disabled, or injured and is temporarily unable to take care for their basic needs, and no one else is available to take on the responsibility of caring for the parent, it often falls upon the employee to take a leave of absence from work to provide the needed care and assistance. The employee’s parent may not be able to take care of his or her own hygiene needs or prepare meals. The parent may need to be driven to frequent medical appointments. Furthermore, the parent may recover more quickly because he or she is under the care of a beloved family member as opposed to a professional caregiver.

Yet an employer may be unsympathetic to an employee’s need for a leave of absence to take care of a parent, since the parent is an adult who the employer may think should in most situations be able to arrange for his or her own care. For instance, if an employee provides the necessary medical documents showing that the parent has a serious medical condition requiring constant attention, the employer might suggest that the employee simply hire someone to assist the parent rather than taking a leave of absence to provide the care.

The employer may not care whether such an arrangement is financially feasible for the employee. So when the employee requests a leave of absence to take care of a parent, Human Resources may accept the request, but a manager may later decide that the employee should not be given the leave and have the employee terminated for job abandonment or something vague like “performance,” or the elimination of the position.

However, the CFRA is designed to protect employees who take time off from work to care for a family member. If you feel your rights to a leave of absence from work to take care of a parent are being or have been violated by your employer, or if you have been terminated after taking time off for this reason, contact our office.

Another common situation where an employee may require a leave of absence from work occurs when an elderly parent, who is living alone, reaches the transitional period between when they can fully care for themselves in their own home and when they will require the heightened level of care available in an assisted living facility.

During that transitional period, the employee may need to lend assistance in the event of a medical emergency if the parent becomes ill or suffers an injury and needs to be cared for on a temporary or periodic basis. For example, in the event the parent is homebound or bedridden for a time, the employee may need a leave of absence from their employer to take care of their parent’s nutritional, bathing, and other personal needs, as well as dispense medications required during the recovery period.

Alternatively, if the employee’s mother is injured or becomes ill to the extent that she only requires sporadic monitoring and care, the employee may request intermittent leave to be available to provide the mother with periodic yet vital assistance similar to what might be provided by a nurse or nursing assistant, such as monitoring her weight, hygiene, vital signs, and living conditions such as cleanliness of her home. The employee may also need to leave work periodically to transport the parent to a doctor or physical therapist.

The employee’s supervisor may not want to make such accommodations. Many employers establish precise work schedules to meet company staffing needs. When an employee submits paperwork requesting leave to care for a parent, the company’s reaction might be to find a way to terminate the employee rather than make the necessary schedule adjustments or take the time to talk with the employee about the requested accommodations. Instead, management may increase the employee’s work load and become hypercritical of the employee’s performance, nitpicking constantly, before informing the employee that he or she is being terminated due to poor performance, or because the employee appears “unhappy” or is “not the right fit” for the position, or because it just wasn’t “working out.” While the employer may be vague about the reasons for firing the employee, the employee still might have a good idea that she was fired for requesting or taking leave, especially given the timing. If you have been involved in the care of a parent and your employer is or was similarly unwilling to make accommodations, contact our office.

California Labor Code § 233 (commonly known as the “Kin Care” law), separate and distinct from the protections available under the CFRA, requires employers who provide paid sick leave to permit employees to use “in any calendar year” the amount of “accrued and available” sick leave entitlement for, among other things, the “[d]iagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member. California Labor Code § 246.5(a). The term “Family member” encompasses the family members (e.g. child, parent, grandparent, grandchild, sibling, spouse, or domestic partner) as in the CFRA. California Labor Code § 245.5. The amount sick leave that can be used for this purpose may not be less than the sick leave that an employee would accrue during six months at their current rate of entitlement. California Labor Code § 234 provides that “[a]n employer absence control policy that counts sick leave taken pursuant to Section 233 as an absence that may lead to or result in discipline, discharge, demotion, or suspension is a per se violation of Section 233.” Many employers have attendance policies whereby employees may be given an “occurrence” or a “point” that may lead to negative repercussions if the employee has an unscheduled absence or provides insufficient notice of an absence. Under California Labor Code §§ 233 and 234, if an employee has accrued and available sick leave, and is using the accrued and available paid sick leave for a purpose related to the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee’s family member, it is unlawful for an employer to count the absence against the employee under an attendance policy because the employer would then be disciplining the employee for using his or her paid sick leave for a purpose allowed under California law.

Employers, with certain exceptions, must provide employees with 24 hours or three days of paid sick leave benefits that may be used in a 12-month period, for either themselves or for eligible family members, for, among other things, the diagnosis, care, or treatment of an existing medical condition, or for preventive care. California Labor Code § 245 et seq. Some municipalities provide employees greater entitlement to sick leave than what is available under state law. See San Francisco Administrative Code § 12W.3.

Employers covered by the CFRA are required by law to post in a conspicuous location in the workplace a notice alerting employees of their rights to take leave under the CFRA. In addition, if an employer has an employee handbook or manual or guide that describes its policies on leaves of absence, the employer must also include a description of employee leave rights under the CFRA. 2 California Code of Regulations § 11095.

If you have not been granted FMLA/CFRA leave or have experienced negative treatment or termination for having taken a leave from your workplace to take care of a family member, contact the respected family leave lawyers at Kokozian Law Firm, APC. Ask about our free initial consultation.