If you take a leave of absence from work because you have an illness or medical condition, to take care of a family member who is ill, or for pregnancy or birth of a child, you must be certain that your job will be waiting for you when you return. Thankfully, both federal and Orange County laws prohibit employers from terminating or retaliating against employees who take job-protected leave.
The Family Medical Leave Act, known as the FMLA, is a federal law enacted in 1993 to “balance the demands of the workplace with the needs of families.” The FMLA allows employees to take up to 12 weeks of unpaid leave during any 12-month period of employment. The California Family Rights Act, known as the CFRA, is a similar California law that also allows employees to take 12 weeks of leave once every 12-months.
The FMLA and CFRA provide leave for:
Who is Covered by FMLA and CFRA: To be eligible for for leave under these laws, the employee must (1) have worked for the employer for at least 12 months, (2) have worked at least 1,250 hours during the year prior to starting leave, (3) work for an employer who employs at least 50 employees with 75 miles of the employee’s workplace.
Protection Against Termination or Loss of Benefits: FMLA and CFRA leave is “job protected,” meaning that the employee cannot be terminated and must be allowed to return to work in the same or a comparable position, and the employer must provide a guarantee of this in writing if the employee requests it. The employee cannot be punished for taking leave and must receive the same pay, benefits, working conditions and status upon returning to work.
Benefits Must Continue During Leave: The employer must continue all of the employee’s benefits during the leave, including health care.
Extended Leave for Military Caregivers: Employees who are the spouse, parent or child, or next of kin of a military service member with a serious illness or injury may take up to 26 weeks of FMLA leave to care for the service member.
California’s Pregnancy Disability Leave Act, or “PDLA,” provides up to 4 months of leave for disability or medical condition related to pregnancy or childbirth. Because the PDLA applies to all employers with 5 or more employees, you may be eligible for pregnancy disability leave even if you don’t qualify for FMLA/CFRA leave because your employer has fewer than 50 employees or because you’ve been working less than 12 months.
Qualifying disabilities include morning sickness, need for bed rest, gestational diabetes, pregnancy-related hypertension, preeclampsia and post-partum depression. Pregnant employees are also entitled to leave for doctor visits both before and after giving birth. Employees are protected by some of the most extensive pregnancy leave laws in California. If you feel you’ve been denied these rights contact our firm for a free consultation regarding your circumstance.
Even if you are not pregnant and not eligible for FMLA/CFRA leave, either because your employer is not covered (because it employs less than 50 employees) or because you have not been working for 12 months, or have not worked the minimum 1,250 hours in the past year, you may still be entitled to leave under California’s Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA).
These laws require employers to provide “reasonable accommodations” to disabled employees. A reasonable accommodation can be almost anything necessary for an employee with a physical disability to continue performing a job, so long as it doesn’t subject the employer to an “undue hardship.” A leave of absence is a common reasonable accommodation.
Eligibility for Leave as Reasonable Accommodation: Employees with a disability are entitled to reasonable accommodation under the FEHA if their employer has 5 or more employees and under the ADA if their employer has 15 or more employees.
After FMLA/CFRA Leave is Exhausted: Even after an employee has used all 12 weeks of job protected FMLA/CFRA leave, he or she may be entitled to additional leave as a reasonable accommodation under the FEHA and the ADA.
Employer’s Obligation to Engage in an Interactive Process: Employers are required to engage the employee in an “interactive process,” meaning that the employer must communicate with the employee to determine whether and what accommodation is appropriate.
If you are the victim of unlawful employment practices, including wrongful termination, sexual harassment, discrimination, or have not been paid all wages and benefits you are entitled to, the Law Offices of Corbett H. Williams can help. Call us today at 949-679-9909, or take a moment to fill out an online contact form for a prompt response. Delay could result in the loss of your claim, so don’t wait.