Medical Leave

Under the federal Family Medical Leave Act (FMLA), or the California Family Rights Act (CFRA), an employer that regularly employs more than 50people within a 75-mile radius is required to permit employees that have more than 1 year of service to take up to 12 weeks of unpaid leave if they, or their parents or children, have a “serious medical condition.”

An employee need not specify to the employer that he/she needs “FMLA” or “CFRA” leave. It is sufficient for the employee to notify the employer that he/she has a “serious health condition,” although the employee need not use those exact words. The employee need only let the employer know that he/she has a condition that will require inpatient treatment, several doctor’s visits, or that it may incapacitate the employee for more than 3 days. If the employer wants more information, it must ask for it. The employer may request a doctor’s certificate, indicating the severity and probable duration of the condition, but it must do so in writing.

A “serious medical condition” is defined as one that necessitates either inpatient treatment, or at least 2 doctor visits (or 1 visit plus a continuing regimen of treatment) and incapacitates the employee for more than 3 consecutive days. If the employee is unable to work for more than 3 days, he/she is considered “incapacitated” under the FMLA. Permanent, recurring conditions such as Epilepsy, also qualify for FMLA protection. Thus, although the definition of a “serious health condition” is much broader and more inclusive than the definition of “disability,” it does not typically extend to common ailments such as a cold or the flu. However, such common ailments as the flu may be protected if they result in a period of incapacity of more than 3 days or otherwise meet the criterion for a covered “serious health condition.”

The FMLA and CFRA also protect employees who require intermittent, or sporadic absences for such chronic conditions as migraines, asthma, irritable bowel syndrome, etc. Notably, if an employee’s doctor certifies the employee for intermittent leave due to a chronic condition, the employer usually cannot ask for re-certification more often than every 30 days.

Employers may ask for a medical certification from a healthcare provider to verify your need for CFRA/FMLA leave. However, under CFRA (unlike under the Federal FMLA) employers may not ask for the diagnosis, treatment, or other “medical facts” supporting your need for leave. If a healthcare provider’s certification states that the employee has a “serious health condition” as defined by CFRA, and also states the date of onset and probable duration of the condition, the employer cannot ask for any additional information. Employers who question the validity of a “sufficient” medical certification have two options: Grant the requested leave or pay for the employee to be examined by another, neutral healthcare provider. If the employer insists on a “second opinion,” and that opinion conflicts with the first, the employer must pay for a third opinion, which acts as the “tiebreaker.”

CFRA leave may also be taken for adopting or bonding with a child. “Baby bonding leave” may be taken immediately following a pregnancy disability leave or at any time within 12 months of the baby’s birth. Theoretically, if an employee has a difficult pregnancy, she may be entitled to up to 4 months of Pregnancy Disability Leave (“PDL”), then an additional 12 weeks of “baby bonding” leave once she recovers from her pregnancy-related disability. In other words, a woman disabled by pregnancy who then gives birth may take up to 7 consecutive months of job-protected leave.

Paid Sick Leave

In addition, new California in 2015 requires employers to provide paid sick leave.

Generally, an employee would be able to use at least 3 days of paid sick leave in a year. The number of days or hours of paid sick leave depends on the amount of sick time accrued by an employee or granted to an employee under the employer’s paid sick leave policy. There are other requirements and potential caps on the amount of sick time accrued and which can be used in a given year.

Employers are also required to provide an employee written notice of the amount of paid sick leave available to the employee each pay period. This written notice may be included in the wage statement (i.e., paycheck stub) or in a separate written document provided to the employee with the payment of wages.

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