FMLA and CFRA Qualifying Reasons

An employee can take family and medical leave under several different circumstances. Some of these circumstances are FMLA only, some are CFRA only, and some are FMLA/CFRA combined.

FMLA and CFRA both allow leave for the purpose of caring for a family member with a serious health condition. For information on the definition of “serious health condition,” FMLA and CFRA both allow leave to care for a parent, spouse, child, or domestic partner, as defined:

Parent: A biological, foster or adoptive parent; a stepparent; a legal guardian; or other person who stood in loco parentis to the employee when the employee was a child. A biological or legal relationship is not necessary for a person to have stood in loco parentis to the employee as a child. Parent does not include a parent-in-law.
Spouse: A partner in marriage. It does not include unmarried people living together, but does include people who are legally married who do not live together. Federal law has also recently changed to tackle the issue of same-sex spouses. In August of 2013, the federal Department of Labor revised the definition of “spouse” for purposes of taking FMLA leave. Spouse under the FMLA is currently defined as: A husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including "common law" marriage and same-sex marriage. Under the FMLA, the current focus is on whether same-sex marriage is lawful where the employee resides. However, in June of 2014, the Department of Labor proposed changing the rule to one based on the “place of celebration.” Under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into. The federal change to address same-sex spouses was in response to the U.S. Supreme Court’s ruling on same-sex marriage in United States v. Windsor. In Windsor, the U.S. Supreme Court struck down a key provision of the Defense of Marriage Act (DOMA) that defined “spouse” as only a person of the opposite sex and “marriage” as only between a man and a woman. The Court found that defining spouse and marriage to exclude same-sex unions is unconstitutional and violated the equal protections afforded by the Fifth Amendment of the Constitution. California is one of 15 states currently recognizing same-sex marriage. The other states are: Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey New York, Rhode Island, Vermont and Washington. The District of Columbia also recognizes same-sex marriage. Since the current focus under the FMLA is on whether same-sex marriage is lawful where the employee resides, employees who reside in California will be permitted under FMLA to take time off to care for same-sex spouses. It does not matter where the employer is located, where the employee works or where the marriage took place. On the other hand, if your employee resides in a state where same-sex marriage is not recognized, such as Nevada, but works in California, the employee will not be able to take time off to care for a same-sex spouse under FMLA but can take the time off under CFRA. Registered domestic partner (CFRA): CFRA allows an employee to take leave to care for a registered domestic partner with a serious health condition. FMLA does not cover registered domestic partners.
Child: A biological, adopted or foster son or daughter; a stepson or stepdaughter; a legal ward; or a child of an employee who stands in loco parentis to that child. A child must be either under 18 years of age or an adult dependent child. The legal term “in loco parentis” means in place of a parent, and a person standing in loco parentis is charged with a parent’s rights, duties and responsibilities. It does not require a biological or legal relationship. The U.S. Department of Labor (DOL) issued an Administrator’s Interpretation clarifying the definition of “son or daughter” with regard to an employee standing in loco parentis to a child. The DOL’s interpretation is not a regulation and does not carry the weight of the law or regulations implementing the law. If you are in doubt about the standing of an employee who wants to take leave under FMLA, consult legal counsel before denying the leave. The current regulations define “in loco parentis” as including “those with day-to-day responsibilities to care for and financially support a child,” or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary. The DOL interprets the regulations to mean that an employee who intends to assume the responsibilities of a parent (in loco parentis) is not required to establish that he/she provides both day-to-day care and financial support. Either day-to-day care or financial support can establish the relationship. The interpretation states that the FMLA statute and regulations do not restrict the number of parents a child can have under the FMLA.

Medical Care for the Employee (FMLA/CFRA): Both FMLA and CFRA allow for leave for the employee’s own serious health condition. This means an employee’s own serious health condition that makes the employee either unable to work at all or unable to perform one or more essential functions of his/her job.

Medical Care for the Employee's Pregnancy Related Disability (FMLA Only). Pregnancy related disabilities are covered as serious health conditions under the FMLA. Pregnancy related disabilities are not covered as serious health conditions under CFRA. This may lead to additional leave entitlements under California law.

Baby Bonding (FMLA/CFRA). FMLA and CFRA both allow leave for the purposes of bonding with a newborn, an adopted child or a child placed in foster care with an employee. This includes leave for an employee, either male or female, to bond with his/her own child or with his/her adopted or foster child. All leave for baby bonding must conclude within one year of the birth of the child or one year from the date the child was placed with the employee for adoption or foster care. FMLA runs concurrently with state pregnancy disability leave (PDL); but CFRA does not. An employee who has exhausted PDL/FMLA for their pregnancy related disability may be entitled to an additional 12 weeks of CFRA only baby bonding leave.

Leave for a Qualifying Exigency (FMLA Only). FMLA allows for 12 weeks of leave in a 12-month period because of any “qualifying exigency” arising out of the foreign deployment of that the employee’s spouse, child or parent. This is FMLA only leave; there is no corresponding CFRA entitlement. The National Defense Authorization Act for Fiscal Year 2010 expanded the protections for qualifying exigencies. On March 8, 2013, final regulations took effect implementing these expansions. There are specific eligibility requirements for qualifying exigency leave. In order for the employee to take the leave:

The employee’s spouse child or parent must be a member of the Armed Forces (including the National Guard and Reserves); and
The member must be on covered active duty status, call to covered active duty status or notified of an impending call or order to covered active duty.

“Covered active duty” means:

For members of the Regular Armed Forces — duty during the deployment of the member with the Armed Forces to a foreign country.
For members of a Reserve component of the Armed Forces (members of the National Guard and Reserves) — duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in support of a contingency operation.

The type of events that count as “qualifying exigencies” for which an employee may take FMLA leave, include the following:

Short notice deployment — a period of up to seven calendar days may be taken to address any issue arising from a short-notice deployment (i.e., deployment with seven or less days of notice)
Military events and related activities — official events or family support or informational briefings
Childcare and school related activities — including arranging for alternative childcare, providing childcare on an urgent basis, enrolling or transferring schools or day care, attending school or daycare meetings
Financial and legal arrangements
Counseling
Parental care activities — time needed to care for a military member’s parent who is incapable of self-care, such as arranging for alternative care and providing care on an immediate basis
Rest and recuperation — Eligible employees may take up to fifteen calendar days of leave to spend time with a covered military member on short-term, temporary, rest and recuperation leave
Post-deployment activities — military sponsored arrival or reintegration briefings (within 90 days of end of covered active duty) and to address issues relating to death of a service member
Additional activities — any other event that the employee and employer agree is a qualifying exigency

Qualifying exigency leave is only covered under FMLA, but not under CFRA. This may lead to additional leave entitlements under California law.

Military Caregiver Leave (FMLA Only). FMLA also provides eligible employees up to 26 weeks per single 12-month period to care for an ill or injured covered service member with a serious injury or illness. This is FMLA only leave; there is no corresponding CFRA entitlement. The National Defense Authorization Act for Fiscal Year 2010 expanded the military caregiver leave protections, including expanding the definition of covered service members to include not only current service members, but also certain recent veterans. On March 8, 2013, final regulations took effect implementing these expansions. The employee seeking military caregiver leave must be related to the covered service member in one of the following ways:

Spouse
Child
Parent
Next of kin

A covered service member, for whom employees can take up to 26 weeks of FMLA, is either:

A current member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is in outpatient, or is on the temporary disability retired list, for a serious injury or illness.
A veteran of the Armed Forces (including a member of the National Guard or Reserves) discharged within the five year period before the family member first takes military caregiver leave to care for the veteran and who is undergoing medical treatment, recuperation, or therapy for a qualifying serious injury or illness. A veteran who was dishonorably discharged is not a covered service member.

The period between enactment of the legislation on October 28, 2009, and the effective date of the 2013 regulations of March 8, 2013, is excluded in the determination of the five-year period for covered veteran status. Military caregiver leave is only covered under FMLA, but not under CFRA. This may lead to additional leave entitlements under California law.