Understanding CFRA and FMLA Leave in California

Overview

California employees may be entitled to job-protected leave under two overlapping but distinct statutes: the California Family Rights Act (CFRA), codified at Government Code Section 12945.2, and the federal Family and Medical Leave Act (FMLA), codified at 29 U.S.C. § 2601 et seq.

Both laws provide eligible employees with the right to take unpaid, job-protected leave for qualifying reasons while maintaining health insurance coverage. However, CFRA and FMLA differ in important respects - including employer coverage thresholds, qualifying reasons for leave, and interaction with other California leave laws.

This guide provides a general overview of both statutes and their interaction. It does not constitute legal advice.

Employer Coverage

CFRA

CFRA applies to employers with five (5) or more employees. This threshold was lowered from 50 employees by SB 1383, effective January 1, 2021. As a result, CFRA now covers significantly more California employers than the FMLA.

FMLA

The FMLA applies to private employers with fifty (50) or more employees within a 75-mile radius, as well as to all public agencies and public and private elementary and secondary schools.

Because of the different coverage thresholds, many California employees are covered by CFRA but not by the FMLA.

Employee Eligibility

CFRA

To be eligible for CFRA leave, an employee must:

• Have worked for the employer for at least twelve (12) months (need not be consecutive)
• Have worked at least 1,250 hours during the twelve-month period immediately preceding the start of leave

FMLA

FMLA eligibility requires:

• At least twelve (12) months of employment with the employer
• At least 1,250 hours of work during the twelve-month period preceding the leave
• Employment at a worksite where the employer has fifty (50) or more employees within a 75-mile radius

The 75-mile-radius requirement applies only to the FMLA, not to CFRA.

Leave Entitlement

Both CFRA and FMLA provide eligible employees with up to twelve (12) workweeks of unpaid, job-protected leave in a twelve-month period. The method for calculating the twelve-month period may vary depending on the employer's policy and applicable law.

Qualifying Reasons for Leave

CFRA Qualifying Reasons

CFRA leave may be taken for any of the following reasons:

• The employee's own serious health condition that makes the employee unable to perform their job functions
• To care for a family member with a serious health condition
• Bonding with a new child (birth, adoption, or foster care placement)
• A qualifying exigency related to the covered active duty or call to covered active duty of the employee's spouse, domestic partner, child, or parent in the United States Armed Forces

FMLA Qualifying Reasons

FMLA leave may be taken for:

• The employee's own serious health condition
• To care for a spouse, child, or parent with a serious health condition
• Bonding with a new child (birth, adoption, or foster care placement)
• A qualifying exigency arising from the foreign deployment of the employee's spouse, child, or parent who is a covered military member
• Military caregiver leave - up to 26 workweeks in a single twelve-month period to care for a covered servicemember with a serious injury or illness (this provision has no CFRA equivalent)

Key Differences in Covered Family Members

One of the most significant differences between CFRA and FMLA is the definition of "family member":

CFRA's broader definition of family member, expanded by SB 1383, covers a significantly wider range of family relationships than the FMLA.

Serious Health Condition

Both CFRA and FMLA define a "serious health condition" as an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. Examples may include conditions requiring hospitalization, chronic conditions requiring periodic treatment, conditions requiring multiple treatments, and pregnancy-related incapacity.

One important distinction: under CFRA, pregnancy, childbirth, and related medical conditions are not qualifying serious health conditions for the employee's own leave. Instead, leave for the employee's own pregnancy-related disability is covered under California's Pregnancy Disability Leave (PDL) law (Government Code Section 12945), which provides up to four months of leave. After PDL ends, a CFRA-eligible employee may then take up to twelve weeks of CFRA bonding leave, resulting in a potential combined total of approximately seven months of leave.

Under the FMLA, by contrast, pregnancy qualifies as a serious health condition, and FMLA leave for pregnancy runs concurrently with PDL.

Intermittent and Reduced Schedule Leave

Both CFRA and FMLA allow leave to be taken on an intermittent basis or on a reduced work schedule when medically necessary for the employee's own serious health condition or to care for a family member with a serious health condition.

Bonding leave may be taken on an intermittent basis under CFRA, subject to a minimum duration of two weeks per leave period (with two exceptions allowing shorter increments). Under the FMLA, intermittent bonding leave is available only with employer agreement.

Job Protection

An employee who takes CFRA or FMLA leave is entitled to be restored to the same or a comparable position upon return from leave. A comparable position is one that is virtually identical to the employee's former position in terms of pay, benefits, working conditions, and status.

Limited exceptions may apply to certain "key employees" under the FMLA, but this exception is narrowly defined.

Health Insurance Continuation

During CFRA or FMLA leave, the employer must continue to maintain the employee's group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The employee remains responsible for their share of premiums.

Interaction Between CFRA and FMLA

When an employee is eligible for both CFRA and FMLA leave, the two generally run concurrently - meaning the same leave period counts against both entitlements simultaneously. However, because of the differences described above (particularly regarding pregnancy and the definition of family members), there are scenarios in which leave qualifies under one statute but not the other, effectively extending the total leave available.

The most common example is pregnancy: an employee may take PDL (up to four months) concurrently with FMLA leave, and then take an additional twelve weeks of CFRA bonding leave - because CFRA and FMLA run separately in this context.

Interaction with Other Leave Laws

California has several other leave and benefit programs that may interact with CFRA and FMLA:

• Pregnancy Disability Leave (PDL) - Up to four months of leave for employees disabled by pregnancy, childbirth, or related conditions
• California Paid Family Leave (PFL) - Provides partial wage replacement (through the EDD) for employees taking time off to bond with a new child or care for a seriously ill family member. PFL provides income replacement but does not provide job protection on its own.
• State Disability Insurance (SDI) - Provides partial wage replacement for employees unable to work due to their own non-work-related illness, injury, or pregnancy
• Employer-provided paid leave - Employers may require or allow employees to use accrued paid leave (such as vacation or sick time) concurrently with CFRA or FMLA leave

Employer Obligations

Employers covered by CFRA and/or FMLA have several obligations, including:

• Providing notice to employees of their rights under the applicable statutes
• Responding to leave requests in a timely manner
• Designating qualifying leave as CFRA and/or FMLA leave
• Maintaining health insurance during leave
• Restoring the employee to the same or a comparable position upon return
• Maintaining records related to leave requests and usage
• Refraining from interfering with, restraining, or denying the exercise of leave rights
• Refraining from retaliating against employees who request or take leave

Retaliation and Interference

Both CFRA and FMLA prohibit employers from retaliating against employees for requesting or taking leave, and from interfering with employees' exercise of their leave rights. An interference claim does not require proof of discriminatory intent - it is sufficient to show that the employer denied a benefit to which the employee was entitled.

Conclusion

The CFRA and FMLA provide important job-protected leave rights to eligible employees, but the two statutes differ in significant ways. The interaction between CFRA, FMLA, PDL, and California's disability and paid leave programs can be complex. Both employees and employers benefit from understanding the applicable rules. Individuals with questions about their leave rights or obligations are encouraged to consult with a qualified employment law attorney.

This guide is provided for general informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is created by reading this material. Laws and regulations may change, and the application of law depends on the specific facts of each situation. Consult a qualified attorney for advice regarding your particular circumstances.