Leave Interactions

Leave Interactions

Controlling family and medical leave begins with recognizing a qualifying event, either because the employee tells you about the event or you learn about it some other way, and then notifying the employee that he/she is placed on FMLA-only, FMLA/CFRA or CFRA-only leave. By providing notice that the leave is designated as such, you start counting the absences against the legally mandated 12-week or 26-week entitlement and any additional leave you choose to provide by policy.

This process also involves coordinating leave entitlements with your voluntary policies of allowing or requiring other forms of leave. Leaves of absence can occur either one after the other (as with CFRA-only leave for baby bonding, which can begin only after pregnancy disability ends or after the child is born), or overlapping (as with pregnancy disability leave and FMLA leave, which run concurrently). Running leaves of absence concurrently with one another where allowed by law is a key tool in managing the overall amount of time an employee is away from work.

FMLA and CFRA contain similar provisions. They run concurrently for all purposes other than:

Leave to care for a registered domestic partner (CFRA only)
Disabilities due to pregnancy or pregnancy-related condition (FMLA only)
Leave for a qualifying exigency related to a family member’s military service (FMLA only)
Leave to care for an ill or injured service member (FMLA only)

FMLA and CFRA Concurrent Leave. FMLA and CFRA run concurrently if the leave of absence is needed:

To care for the employee’s spouse, parent or child
As time off because of the employee’s own serious illness or injury
To bond with a newborn child (For the mother, any FMLA remaining after PDL will run concurrently with any CFRA taken for this purpose. For the father, FMLA/CFRA will run concurrently for a maximum of 12 weeks.)
To bond with a child placed with the employee for adoption or foster care

The employee who needs leave for one of these qualifying reasons will have up to 12 weeks of leave, if the employee has not used any other FMLA/CFRA leave during the 12-month period the organization uses for these leaves. An employee is injured while jet skiing and is unable to work for nine weeks. The employee is eligible for and will use nine weeks of FMLA/CFRA. The employee has three weeks of FMLA/CFRA available for the remainder of the 12-month period used by the employer.

Pregnancy and Family and Medical Leave. Leave for pregnancy, childbirth or a related medical condition is covered by California’s Pregnancy Disability Leave Act (PDL). If the employee is eligible for FMLA/CFRA, leave under the PDL will run concurrently with FMLA for a maximum of 12 weeks. CFRA specifically excludes pregnancy and other related disabilities from coverage. After the baby is born, the employee is entitled to additional leave under CFRA for baby bonding. Rights of employees disabled by pregnancy or pregnancy-related conditions are discussed in more detail in PDL.

PDL time available is four months, which is defined as the number of days the employee would normally work within four calendar months, or one third of a year, or 17 1/3 weeks. Of this, 12 weeks, 60 days, or 480 hours can run concurrently with FMLA. Keep in mind that four months of leave is allowed for each pregnancy. This is not an annual limit. An employee who took time off early in the year in a high-risk pregnancy and then miscarried would be entitled to a new leave of up to four months if she became pregnant again later that same calendar year. If she has exhausted all her FMLA leave for the 12-month period your company uses, she may only be eligible for PDL. Actual PDL time is based on actual periods of disability. The employee must be designated as disabled because of pregnancy, childbirth or related medical condition by her treating physician, if you require medical certification. PDL requires up to four months of continued health benefits during a twelve-month period.

CFRA leave taken after a PDL/FMLA leave is 12 weeks. CFRA can be taken for purposes of bonding with the baby. No medical certification is required if CFRA is taken for baby bonding. The eligibility requirement for an employee who takes CFRA leave for baby bonding after exhausting PDL or FMLA is different than for an employee who takes FMLA or CFRA. If taking CFRA leave only, the 12-month period during which the employee must have worked 1,250 hours is the period immediately preceding her first day of PDL or FMLA leave, based on her pregnancy disability. She need not meet the 1,250 hour eligibility requirement a second time before taking CFRA for baby bonding.

FMLA/CFRA requires that eligible employees be provided with continuation of health benefits as if the employee still were at work and on the payroll. Employees get up to 12 weeks of continued health benefits in each 12-month period.

CFRA covers employers with 50 or more employees and an eligible employee who, after taking a FMLA/PDL leave, takes up to 12 weeks of CFRA for purposes of baby-bonding leave. CFRA does not run concurrently with FMLA/PDL. You can require use of accrued vacation during CFRA leave.

The designation of PDL, and thus FMLA, is determined by the employee’s health care provider. The employee is not automatically entitled to the full four months of PDL or 60 days of FMLA.

Leave When Parents Work for the Same Employer. If two new parents both work for the same employer and both are eligible for FMLA/CFRA, the employer can limit the total amount of time for baby bonding to 12 weeks of leave. The employees determine how the time will be split.

Both parents decide that the mother will take eight weeks of baby-bonding leave. She used all her FMLA leave prior to the birth of the child so she will be entitled to eight weeks of leave that is CFRA only. She will have four weeks of CFRA leave remaining that can be used for any purpose other than baby bonding. The father will use four weeks of FMLA/CFRA leave, and he has eight weeks of FMLA/CFRA remaining that can be used for any purpose other than baby bonding.

The FMLA regulations refer to a husband and wife who are employed by the same covered employer and who take leave for baby bonding. In that case, the husband and wife are limited to a combined total of 12 weeks for the baby bonding. The CFRA regulations permit the limitation on baby bonding leave if both parents are CFRA eligible and work for the same employer. The CFRA regulations also state that if the parents are not married, they may have different family care rights under the FMLA.

If you employ both parents and they request baby bonding leave under state and federal laws, consult with counsel to determine how much leave each may take for this reason.

Qualifying Exigency for FMLA Leave. 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 employee’s spouse, child or parent. Leave for a qualifying exigency does not affect the employee’s CFRA entitlement. FMLA provides up to 12 weeks, 60 days, or 480 hours of time off because of a qualifying exigency. This time does not run concurrently with CFRA. You can require documentation to support the need for leave. FMLA also requires that employers provide eligible employees with continuation of health benefits as if the employee still were at work and on the payroll. Employees get 12 weeks of continued health benefits in each 12-month period. If an employee takes the full 12 weeks of FMLA because of a qualifying exigency, he/she will have exhausted the available health benefits under FMLA within a 12-month period.

For example, an eligible employee takes eight weeks of FMLA leave for a qualifying exigency. Two weeks after she returns to work, her registered domestic partner is hospitalized for one week in need of care and is subsequently at home in need of care for three weeks, according to the medical certification:

The employee is eligible for up to 12 weeks of FMLA-only leave for a qualifying exigency and took eight weeks, so she has four weeks of FMLA-only or FMLA/CFRA leave remaining.
She is eligible for up to 12 weeks of CFRA-only leave to care for a registered domestic partner, in addition to her 12 weeks for a qualifying exigency under FMLA. She took eight weeks for FMLA-only qualifying exigency leave and four weeks of CFRA-only leave to care for her registered domestic partner. In all, she took a total of 12 weeks of leave.

The organization must continue her health benefits for a total of 12 weeks in a 12-month period. Because she took a total leave of 12 weeks, the organization was required to continue her health benefits for the duration of both her FMLA-only and CFRA-only leaves.

Leave to Care for an Ill or Injured Service Member. An employee who is the spouse, son, daughter, parent or next of kin of a covered service member (including certain veterans) is entitled, under the FMLA, to a total of 26 workweeks of leave during a 12-month period to care for the covered service member. If the employee does not take the entire 26 weeks of military caregiver leave entitlement within the 12-month period, the employee forfeits the remaining amount of leave available. The 12-month period begins on the first day of leave, regardless of how you calculate the 12-month period for other FMLA/CFRA leaves. FMLA provides 26 weeks, 130 days, or 1040 hours of time off to care for an ill or injured covered service member. The first 12 weeks of time runs concurrently with CFRA if the injured service member is a spouse, parent or child of the employee. It does not run concurrently with CFRA if the service member is next of kin. You can require documentation to support the need for leave. FMLA requires that employers provide eligible employees with continuation of health benefits as if the employee still were at work and on the payroll. Employees on leave to care for an ill or injured service member get up to 26 weeks of continued health benefits in the 12-month period. This is in contrast to other FMLA/CFRA leaves, which limit the health benefits entitlement to 12 weeks within a 12-month period.

If an employee takes less than 26 weeks of FMLA to care for an ill or injured service member, he/she is still only entitled to a total of 12 weeks of health benefits within a 12-month period for any other type of FMLA/CFRA leave.

For example, an eligible employee takes 20 weeks of leave to care for his son, who returned from military service with a serious injury and needs care. Two months later, the employee needs 10 weeks of leave due to a qualifying exigency relating to his daughter’s military service. He is eligible for up to 26 workweeks of FMLA only leave to care for his son and used 20 weeks of his available leave.

During any single 12-month period an eligible employee’s FMLA leave entitlement is limited to a combined total of 26 workweeks of FMLA leave for any qualifying reason. In this example, the employee used 20 workweeks for service member leave so he has six weeks left for FMLA-only qualifying exigency leave. The organization must continue his health benefits for a total of 26 weeks in a 12-month period when the leave is to care for an ill or injured service member. For FMLA-only leaves, benefits must continue during the period of the leave. You must continue health benefits for a total of 26 workweeks for FMLA-only leaves.