Federal and state law provide certain employees with the right to take an unpaid leave from work to care for a family member who has a serious health condition. The federal law is the Family and Medical Leave Act (FMLA); the state law is the California Family Rights Act (CFRA).
If you qualify for a family/medical leave under these laws, your employer:
Family/medical leave laws also make it illegal for your employer to interfere with your right to take a family/ medical leave, to harass you for taking a family/medical leave, to deny a valid leave request, or to refuse to hire or promote you because you have taken or will take a family/medical leave. It is also illegal for your employer to retaliate against you for requesting a family/medical leave or for complaining about a violation of family/medical leave laws.
Other laws also prohibit your employer from discriminating against you because your employer believes you will have to miss work to care for a family member with a disability. (See our Fact Sheet Disabilities in the Workplace: An Introduction to State and Federal Laws for more information.)2. Are you covered under family/medical leave laws?
You must meet all of the following conditions to be covered by the family/medical leave laws:
Under the family/medical leave laws, a serious health condition is an illness, injury, impairment, physical condition, or mental condition that causes a period of incapacity (meaning inability to work, attend school or perform other regular daily activities) and requires at least one of the following:
Under family/medical leave laws, the continuing treatment provision requires one of the following:
Cosmetic treatments or surgery, and treatments for routine conditions, such as the flu, are not generally considered sufficient to count as a serious health condition.
Treatment under family/medical leave laws includes examinations to determine if a serious health condition exists and evaluation of that condition. Treatment does not include routine physical, eye or dental exams.
The term health care provider includes:
If your employer’s health care plan accepts certification from your family member’s doctor of the existence of a serious health condition to substantiate a claim for benefits, your family member’s doctor probably counts as a health care provider under the family/medical leave laws.
You may take time off to care for your parent, child, spouse or registered domestic partner with a serious health condition. Parent means a biological parent or an individual who cared for you as a parent when you were a child. Parents-in-law are not included. Spouse means a husband or wife as recognized by the state in which you live. Registered domestic partner means partners of the same sex who have filed a Declaration of Domestic Partnership with the Secretary of State.
Child means a biological, adopted or foster child, a legal ward, or a child for whom you act as a parent even if you have not formally adopted the child. A child must be either (1) under the age of 18, or (2) 18 or older and incapable of self-care because of a mental or physical disability.4. What types of care are covered under family/medical leave laws?
Family/medical leave laws recognize that you may be needed to provide physical or psychological care, or both. So, for example, you may take a family/medical leave when you are needed to provide physical care for a family member with a serious health condition (such as bathing, administering medication, feeding, or transporting to the doctor where the family member is unable to take care of these needs by himself/herself) or if a doctor determines that your providing psychological comfort or reassurance to a family member would be beneficial (staying with a family member who is undergoing surgery, for example). You may also take leave when you are needed to arrange changes in care or to fill in for others who are caring for the family member.5. What are your employer’s obligations in notifying you of your family/medical leave rights?
An employer that is covered by the family/medical leave laws (employs 50 or more employees) must do the following:
You must give your employer notice 30 days before taking a family/medical leave that is foreseeable, such as for major surgery scheduled in advance. If you need leave suddenly to care for a family member or if a family member has a medical emergency, you must tell your employer as soon as possible, usually within a couple of days. You should notify your employer in writing of your need for a family/medical leave, and make sure to have documentation of your employer’s response.
You are not required to disclose to your employer your family member’s diagnosis, but you must give your employer enough information to understand that you are needed to care for a family member who has a serious health condition.
Be sure you understand your employer’s rules for family/medical leave before you take leave. Also ask your employer for written information about your rights and responsibilities for family/medical leave.8. What information may your employer request about your leave?
If you take a family/medical leave, your employer is allowed to request from you:
Your employer may ask for written medical certification (such as a doctor’s note) showing you are needed to care for a family member with a serious medical condition. The certification does not have to disclose your family member’s actual diagnosis, but it must provide enough information for your employer to verify your need for leave. A doctor’s note should contain:
Your employer may not ask you or your family member’s doctor for more than this basic information. If the certification for your family member’s serious health condition meets these requirements, your employer must accept it as sufficient. Your employer may not demand a second or third opinion for certification of a family member’s serious health condition. Your employer must keep any medical information provided in a certification confidential.10. Can you take intermittent or part-time leave?
You may take family/medical leave on an intermittent or reduced (part-time) work schedule when your family member’s care is best accommodated through an intermittent or reduced work schedule. You may take intermittent leave not only where the family member’s need for care is intermittent (for monthly chemotherapy, for example), but also where you are needed only intermittently (such as when sharing care responsibilities with others).
If you need intermittent leave or a reduced work schedule, you must attempt to arrange a schedule with your employer that minimizes disruption of your employer’s operations, but still meets your family member’s need for care as determined by the health care provider. Your employer may temporarily transfer you to an alternative position with equivalent pay and benefits if that position better accommodates your need for intermittent leave.
Your employer cannot make you take more leave than is medically necessary to care for your family member, nor transfer you to a different position to punish you for taking leave (by transferring you to the late night shift, for example). Once you no longer need a reduced schedule, your employer must reinstate you to the same or equivalent position that you held before taking intermittent leave.11. How does family/medical leave relate to other kinds of leave?
Either you or your employer may choose to apply any accrued paid vacation or personal leave during your leave to care for a family member. However, your employer may apply your vacation or personal leave time only if you request leave for a reason that is covered under the family/medical leave laws. In addition, if your employer’s sick leave policy covers time to care for family members, you or your employer may choose to apply your accrued sick time during your leave to care for a family member.
If paid leave of any type is applied during a family/medical leave and your employer’s requirements for using that paid leave are less stringent than those in the family/medical leave laws, only those less-stringent requirements may be imposed. (For example, if you do not need to submit a doctor’s note to verify your need for personal leave, then your employer cannot ask you to submit a doctor’s note to verify your need for family/medical leave.) Your employer may not retroactively designate paid time off as a family/medical leave after you return to work.
Paid Family Leave entitles employees who participate in the State Disability Insurance system to receive a maximum of six weeks of partial pay each year when they take off work to care for a family member with a serious health condition. An employee can receive Paid Family Leave benefits while taking family/medical leave.
Employees who are not eligible for job-protected family/medical leave may still be eligible to receive Paid Family Leave benefits if they pay into State Disability Insurance, and must miss work to care for a family member. All employees who pay into SDI are eligible to receive Paid Family Leave benefits, regardless of the size of the employer or length of employment. For more information about Paid Family Leave, see our Fact Sheet Paid Family Leave Benefits or check the Employment Development Department web site.
Family/medical leave laws establish minimum family/medical leave rights. If your employer provides greater family/medical leave benefits under a union contract, other contract, policy or practice, you are entitled to the more generous benefits.
Your employer may not require you to substitute comp time off for unpaid family/medical leave.12. Where can you get help regarding your family/medical leave rights?
For information about the application of family and medical leave rights to your particular situation, contact our Work & Family Project.
If you think your employer has violated family/medical leave laws, you can file a complaint with your local office of the United States Department of Labor, Wage and Hour Division no later than two years after the earliest discriminatory act or with the California Department of Fair Employment and Housing no later than one year after the first discriminatory act.
If you sue your employer for violating family/medical leave laws, the court may reinstate you to your job and award you wages you should have been paid or a promotion you should have received, as well as reimbursement for legal costs.
Time limits apply. You should take action immediately if you think your rights have been violated.13. Other publications regarding family/medical leave
The Legal Aid Society–Employment Law Center has produced the publications listed below to educate workers about their rights relating to family/medical leave. To request any of these publications or to get information regarding your specific legal rights, please contact our Work & Family Project or view the following fact sheets: