Leave of Absence
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Leaves of Absence are typically granted for an employee’s own serious health condition or the serious health condition of their spouse, son, daughter or parent (for birth of a child; for adopting a child; to care for a spouse, child, or parent with a serious health condition; if employee has a serious health condition; or an emergency because employee’s spouse, son or daughter, or parent is on active duty in Armed Forces).
Family and Medical Leave Act (“FMLA”) & California Family Rights Act (“CFRA”):
An employee under FMLA and CFRA is entitled to “a total of 12 workweeks of leave during any 12-month period” for one or more of the following reasons:
- Birth of a son or daughter of the employee, in order to care for the son or daughter.
- Placing the son or daughter with the employee for adoption or foster care.
- To care for a spouse, son, daughter, or parent of the employee if the spouse, son, daughter, or parent has a serious health condition. 29 USCS § 2612. 2 CCR 7297.0(h). “Son or daughter” means “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis,” the child must be either under 18 years of age or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA/CFRA leave is to commence. 29 CFR 825.122. 2 CCR 7297.0(c). “Loco Parentis” is defined as an individual who has the “day-to-day responsibilities to care for and financially support a child.” It does not require a biological or legal relationship. 29 CFR 825.122(c)(3). 2 CCR 7297.0(c).Under CFRA and California law, “domestic partners” have “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5. Therefore spouses and domestic partners have the same rights to leaves of absence to care for domestic partners or spouses who have a serious health condition. “Parent” means “a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter.” 29 CFR 825.122. 2 CCR 7297.0(l). “To care for” includes physical and psychological care. 29 CFR 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 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 CFR 825.124.
- The employee is unable to perform the functions of their job because of a serious health condition. 29 USCS § 2612(a)(1)(A)-(D). 2 CCR 7297.0.Serious health condition under FMLA is defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, (staying overnight or longer at a hospital, hospice or residential medical care facility) or continuing treatment by a health care provider.” 29 USCS § 2611(11). Examples include:
- Periods of incapacity (being unable to work, attend school or perform other regular daily activity) of more than three consecutive days, and any treatment afterwards or periods of incapacity relating to the condition.
- A mother is entitled to leave for incapacity (being unable to work, attend school or perform other regular daily activity) because of her pregnancy, for prenatal care, or for a serious health condition after the birth of the child; (29 CFR 825.120)
- A husband is entitled to leave to care for his pregnant spouse if she is incapacitated or if the leave is needed to care for her during her prenatal care, or if it is needed to care for his pregnant spouse after the birth of the child if the spouse has a serious health condition; (29 CFR 825.120)
- Chronic conditions that cause employees periods of incapacity and require them to seek treatment. Such as asthma, diabetes, and epilepsy.
- Incapacity (being unable to work, attend school or perform other regular daily activity) from “permanent or long-term conditions for which treatment may not be effective. Such include but are not limited to Alzheimer’s, severe stroke, or the terminal stages of a disease. 29 CFR 825.115.
- Periods of absence to receive multiple treatments from health care providers, which includes any period of time needed to recover. These conditions include: “Restorative surgery after an accident or other injury,” or a condition that without treatment would likely result in a period of incapacity lasting longer than three consecutive days, such includes but is not limited to cancer (chemotherapy), severe arthritis (physical therapy), or kidney disease (dialysis).
- Chronic conditions and those related to pregnancy qualify for FMLA even if the person with the condition does not receive treatment from a health care provider during the period of absence and the absence does not last more than three consecutive days. “For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack [or]…[a]n employee who is pregnant may be unable to report to work because of severe morning sickness.” 29 CFR 825.115. 2 CCR 7297.0(o).
- A qualifying emergency has happened because the employee’s spouse, son, daughter, or parent is on active duty in the Armed Forces. 29 USCS § 2612(a)(1)(E).
Under FMLA/CFRA an employee is not required to take their leave of absence all at one time. The 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 CFR 825.202(a). 2 CCR 7297.3.
For an employee to receive leave covered under FMLA/CFRA from his or her employer, the employee must give the employer notice, either verbal or written. 29 CFR 825.302. 2 CCR 7297.4. The employee’s notice must let the employee know the reason for the leave that is covered by FMLA/CFRA (serious health condition; birth of child or adoption or foster care of child; taking care of spouse, child, or parent with serious health condition.; or emergency because child, spouse, or parent is on active duty with Armed Forces.). 29 CFR 825.302. The notice must also contain the timing and duration the employee anticipates the leave to take up. 29 CFR 825.302.
When an employee comes back from FMLA/CFRA leave, they are entitled to be reinstated by the employer to their same position or an equivalent position. 29 USCS § 2614. Cal. Gov. Code § 1245.2(a). The equivalent position is to have “equivalent employment benefits, pay, and other terms and conditions of employment.” 29 USCS § 2614. Under CFRA the employer must also provide the employee with a written guarantee saying that the employee will be reinstated after his or her leave to the same position or a comparable position. 2 CCR 7297.2.
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