Federal and state law provide certain employees with the right to take an unpaid leave from work for 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 an unpaid 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 will take or have taken 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.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, generally do not count as a serious health condition. Ordinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems and periodontal disease do not qualify for family/ medical leave.
Treatment under the 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 doctor of the existence of a serious health condition to substantiate a claim for benefits, then that doctor probably counts as a health care provider under the family/medical leave laws.4. 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:
If your employer has not notified you of your leave rights and you believe your employer is covered under the family/medical leave laws, ask your employer for information about these rights.5. What are the terms of a family/medical leave?
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 or if there is a medical emergency, you or a family member 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 do not have to disclose your diagnosis to your employer, but you must give your employer enough information to understand you have a serious health condition that prevents you from doing your job.
Be sure that you understand your employer’s rules for family/medical leave before you take leave. Ask your employer for a written description of your rights and responsibilities for family/medical leave. Also be sure that you explain the seriousness of your health condition to your employer if it is not readily apparent (if you have diabetes, for example).7. 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 request a medical “fitness for duty” certification before you return to work as long as the certification is job-related, consistent with business necessity, and applies to all employees, regardless of their reason for taking family/medical leave.8. What information should medical certification have?
A request from your employer for medical certification showing your need for leave (such as a doctor’s note) must be in writing. Certification does not have to disclose your diagnosis, but it must provide enough information for your employer to verify your need for leave. It should include:
In most cases, your employer cannot ask you or your doctor for more than this basic information. Your employer may not contact your doctor directly without your permission. If a family/medical leave is also a workers’ compensation leave, however, your employer may follow workers’ compensation provisions regarding certification. Your employer must keep any medical information in a certification confidential.9. Can you take intermittent or part-time leave?
In some cases, you may use family/medical leave to work part time, or on an intermittent schedule. For example, after recovering from surgery, you may not be strong enough to work full time and may need a part-time schedule. To qualify for intermittent leave, you must show that intermittent leave is medically necessary and your serious health condition is best accommodated through an intermittent or 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 medical needs, as determined by your health care provider. Your employer may temporarily transfer you to a position with equal pay and benefits if that position better accommodates your need for intermittent leave.
Your employer may not make you take more leave than is medically necessary to care for your condition, nor transfer you as punishment for taking leave (transfer you from the day shift 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.10. How does family/medical leave relate to other kinds of leave?
Either you or your employer may choose to apply any accrued paid vacation, sick leave, or personal leave during your leave for your own serious health condition. Your employer, however, may not designate sick leave as family/medical leave unless you have a health condition, which is covered under the family/medical leave laws. If you take another form of paid leave, such as paid disability leave or Workers’ Compensation leave, your employer cannot require you to also use sick or vacation time during the paid leave if that time off is also designated as family/medical leave. Your employer may not retroactively designate paid time off as a family/medical leave after you return to work.
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 require you to substitute compensatory time off for unpaid family/medical leave.
In certain cases, a health condition that is covered by the family/medical leave laws, if permanent, may also be a “disability” as defined by the Americans with Disabilities Act (ADA) or the California Fair Employment and Housing Act (FEHA). Unpaid leave may be a reasonable accommodation of a disability in some circumstances. In addition, your employer may offer paid temporary disability leave, or you may be eligible for State Disability Insurance (call the California Employment Development Department for more information).
A disability leave may run concurrently with a family/medical leave. In taking leave, you should make clear that your disability only temporarily prevents you from working. If claiming temporary disability benefits during a family/medical leave, you should make clear on your medical certification for disability benefits that your inability to work is temporary, even if the serious health condition is permanent. Then, upon returning from family/medical leave, you may seek any other reasonable accommodation for the disability that may be necessary under the ADA or FEHA.
A serious health condition that is covered under Workers’ Compensation may also be covered under the family/medical leave laws. In such a case, an employee’s Workers’ Compensation leave may also be applied toward the 12 weeks of leave allowed for a family/medical leave. If you have a health condition which is covered under Workers’ Compensation and which qualifies you for family/medical leave, your employer may not force you to accept light duty instead of taking a family/medical leave. Although your Workers’ Compensation eligibility and payments may end if you are offered light duty and you refuse it, you may still take an unpaid family/medical leave for your serious health condition.
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.11. 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.12. 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: