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FMLA & CFRA Explained

Jill Schaefer /
dialing on a phone

I don’t know about you, but sometimes I want to reach out and call someone! This is especially true if the person on the other end of the line can help me solve something confounding like knowing where federal Family and Medical Leave Act (FMLA) ends and California Family Right Act (CFRA) begins.

That’s where KPA’s in-house HR experts come in. FMLA and CFRA are among the most common questions our consultants answer day in and day out.

Here are some recent questions.

Q: What’s the difference between FMLA and CFRA?
The Family and Medical Leave Act is a federal law that was enacted in 1993. The California Family Rights Act is a state law that was enacted in 1991. CFRA was amended in 1993 to align with FMLA. Both apply to employers with 50+ employees and provide job-protected leave for certain circumstances. In order to be eligible for either leave, employees must work for an employer for at least one year.

Time Allowed: Up to 12 weeks in a 12-month periodYesYes
Registered domestic partners = spousesNoYes
Pregnancy = serious medical conditionYesNo
Leave can be taken all at onceYesYes
Leave can be taken intermittentlyYesYes
Employer agreement required for child bonding leaveYesNo
Leave for employee’s or family member’s active military dutyYesNo
Caring for ill or injured service memberYesYes, if family member is a spouse, child, or parent

Q: Can CFRA and FMLA run concurrently?
Yes. For example, an employee who has exhausted her FMLA leave for pregnancy- or childbirth-related reasons can use additional CFRA leave to bond with her newborn child. Whereas, in other medical situations in which FMLA and CFRA run concurrently, the employee may be eligible for a maximum of 12 weeks of unpaid leave.

Q: Are employees who are out on workers’ comp entitled to health insurance? What if they haven’t been paying their portion of their premiums?
In California, an employee may use CFRA leave concurrently with workers’ compensation leave. During CFRA leave, you must provide health insurance for the employee. If you didn’t apply CFRA nor have a healthcare provider certify the employee’s serious health condition, you can’t do so retroactively. You can do so now, however. Then you can apply the 12 weeks of CFRA moving forward and fulfill the requirement of offering health insurance. If your employee exhausts the 12 weeks CFRA leave, then you would place him/her on general disability leave, cancel their insurance, and provide a CAL-COBRA eligibility notice.

Before employees go out on leave, have a written, signed agreement that outlines how they will pay for their health insurance portion. In California, an employer can’t automatically deduct past due insurance premiums from employees’ paychecks when they return from CFRA leave, but you can pursue the amount they owe through civil court.  

Q: Can we as an employer require an employee to use their vacation pay and sick time when they go on family leave?
Yes, you may require most employees to use their vacation and sick time when they take FMLA/CFRA leave.

However, you can’t do this is for pregnancy disability leave (PDL). Under California law, you can let these employees know they can use available paid time off, but it’s their choice whether or not they do so for this specific type of leave.

Q: What if my employee hasn’t returned after his FMLA/CFRA leave?
If your employee hasn’t returned to work, as scheduled, after his FMLA/CFRA leave ends or if he has exceeded the 12-week FMLA/CFRA leave period, refer to your organization’s policies. Particularly, your organization’s leave of absence, accommodation, and attendance policies come into play. If the employee doesn’t have any other leave options with your organization, you may terminate employment. Pending your COBRA obligations, the employee’s healthcare benefits would also end.

Additional Resource
Consider registering for KPA’s upcoming FMLA webinar. It’s another opportunity to ask a real-life HR expert your burning questions.

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