Payroll in Practice: 7.10.2023

Question: Recently there were changes made to family and medical leave under the California Family Rights Act. How does family and medical leave in California compare with the federal Family and Medical Leave Act?

Answer: While the Family and Medical Leave Act and the California Family Rights Act are similar, there are some significant differences. The CFRA expands employer, worker, and family member coverage beyond what is available under the FMLA rules. The CFRA is not preempted by the FMLA.

Both FMLA and CFRA provide covered employees with up to a total of 12 weeks of job protected unpaid leave for specified family or medical reasons. Where an employer grants a leave request under either program, the employer must provide the employee with a guarantee of employment in the same or a comparable position when the leave period ends.

Paid leave such as accrued vacation or sick or disability leave may be taken concurrently if required or agreed by the employer. Generally, paid leave does not provide a guarantee of employment like that under the FMLA or CFRA when the leave terminates. Also, for example in the case of sick pay, the reason for the paid leave must be allowable under both the paid and unpaid plans. CFRA and FMLA may also run concurrently with California State Disability Insurance or Paid Family Leave where appropriate.

The FMLA and CFRA overlap with respect to reasons for protected leave, but there are some differences.

Both protect leave for the birth of a child or placement of a child with the employee for adoption or foster care.

Both protect leave to care for a child, spouse, or parent who has a serious health condition. The CFRA also includes leave to care for a grandparent, grandchild, sibling, domestic partner as defined in California Family Code §297, or designated person.

A designated person is any individual related by blood or who has the equivalent of a family relationship with the employee. The employee may identify the designated person when submitting the leave request and the employer may limit an employee to one designated person per 12-month period for family care and medical leave.

Both protect leave for a serious health condition that makes the employee unable to work. The FMLA also protects guaranteed leave for employees disabled by of pregnancy, childbirth, or related medical conditions. Pregnancy disability is not covered under the CFRA. Instead, California Pregnancy Disability Leave (PDL) provides guaranteed leave for employees disabled by of pregnancy, childbirth, or related medical conditions.

The CFRA provides for leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States, as specified in California Unemployment Insurance Code §3302.2. The FLMA provides similar qualifying exigency leave for certain reasons related to a family member’s foreign deployment.

In an exception to the 12 workweeks of leave during a 12-month period, the FMLA provides up to 26 workweeks during a single 12-month period of military caregiver leave when a family member is a current service member or recent veteran with a serious injury or illness. The CFRA does not have a similar provision.

Leave taken by an employee for the CFRA is to run concurrently with FMLA leave except for leave taken under the FMLA for disability on account of pregnancy, childbirth, or related medical conditions. The aggregate amount of leave taken during a 12-month period for under the CFRA or the FMLA or both is not to exceed 12 weeks. However, a qualified employee is entitled to take additional leave as provided under Pregnancy Disability Leave (California Government Code §12945), which may provide up to four months of leave. Up to 12 weeks of PDL will run concurrently with FMLA entitlement at the start of the leave. Upon concluding PDL leave, an employee’s leave may transition to CFRA baby bonding leave for up to 12 weeks.

Employers covered under the FLMA include private sector employers, public agencies, and local educational agencies. A private sector employer is covered if it employs 50 or more employees in 20 or more workweeks in either the current or previous calendar year. Public agencies and local educational agencies are covered regardless of the number of employees. Public agencies include federal, state, and local government employers. Local educational agencies include public school boards and both public and private elementary and secondary schools.

Employers covered under the CFRA include any person who directly employs five or more persons to perform services for a wage or salary, the state of California and any political or civil subdivision of the state and cities.

Generally, employees are eligible for FMLA or CFRA leave if they work for a covered employer for at least 12 months and have at least 1,250 hours of service with the employer during the 12 months before starting FMLA or CFRA leave. A rolling 12-month period is used for calculating hours worked in determining if an employee is eligible to take FMLA and CFRA leave. This 12-month period for purposes of determining when CFRA leave may be taken runs concurrently with the 12-month period under the FMLA and begins on the date leave taken under the FMLA commences.

To be eligible under the FMLA, the employee must work at a location where the employer has at least 50 employees within 75 miles. Under the CFRA, effective January 1, 2021, employers are covered if they have five or more employees. Employers covered under the CFRA cannot deny a leave request to an employee working at a worksite with fewer than 50 employees within a 75-mile radius. In addition, both the FMLA and CFRA have special rules for employees who are flight crew members of air carriers.

This column does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Patrick Haggerty is the owner of a tax practice in Chapel Hill, North Carolina, and an enrolled agent licensed to practice before the Internal Revenue Service. The author may be contacted at phaggerty@prodigy.net.

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