You should not lose your job simply because you or a close family member has gotten sick. It is for this reason that several medical leave laws have been enacted to protect employees against job loss due to illness or injury. While only 25 years ago there were almost no laws to protect employees in such a situation, today California employees have several laws that protect them.
Some employers intentionally deny their employees’ rights to protected medical leave and keep their employees ignorant of them. Still others simply refuse to use expert consultants to understand how the very complicated statutory schemes fit together and thereby deny those rights. And others rely on the wrong consultants who lead them into violation of the law. Regardless of the cause, employees across the state are being denied important rights related to medical leave.
The Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA)
The FMLA is perhaps the most well-known of these federal statutory protections. In California, we have a companion statutory scheme known as the CFRA that has slightly broader protections. Together, these statutes provide substantial protections when employees who qualify need to take limited unpaid leave from their job to address their own, or a close family member’s, serious medical condition.
Many employees will not qualify for FMLA/CFRA leave simply because their employer is not big enough, or because they were not with the employer long enough. To qualify for FMLA/CFRA leave you must work for an employer that has at least 50 employees within 75 miles of your workplace, you must have been with the company for at least a year, you must have worked at least 1,250 hours of time in the year prior to the time you need the leave, and you or your close family member must be suffering from a serious medical condition.
If you qualify for FMLA leave, your employer is required to give you up to 12 weeks of unpaid leave, and when you return from that leave you are guaranteed to receive back your own job or a substantially similar job.
An employer has many things it must do to give it the right to not give you your job back if you return after the 12 weeks. A failure by an employer to carry out those duties according to the law can result in the employee having much more time on unpaid leave and still have the right to get their job back.
This is a complicated area of the law so it is important to have an experienced attorney from Pedersen Law help you through the process.
The Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA)
If you do not qualify for FMLA/CFRA protection but you have a need for unpaid leave to address your own disabling condition (temporary and even permanent), your safety net set of statutes are the federal ADA and the California FEHA. The ADA protects those who have a qualifying disabling condition and who work for companies of at least 15 employees. FEHA protects you if you work for a company that employs at least 5 California employees.
These statutes prohibit an employer from discriminating against an employee who has a disabling condition by providing a reasonably limited amount of unpaid leave to heal, and by requiring employers to reasonably accommodate employees who desire to return to work with restrictions, if there is a way to modify the job or the workplace in a way that would allow the employee to perform the essential functions of their job without creating an undue hardship on the employer. Leave under these statutes can be much longer than the 12 weeks provided by the FMLA/CFRA. Therefore, employees who qualify for FMLA/CFRA leave are also protected by the ADA and FEHA if their leave exceeds the 12 weeks allowed under those statutes.
Generally short-term, transitory illnesses like colds and flues will not qualify an individual as disabled, but generally any condition or injury that affects a major life function, like working, can be used to qualify the employee for these protections.
This area of law is very fact-specific, and a one-size-fits-all approach by employers to duties of reasonable accommodation will often lead to unlawful conduct. Because of the complexity of the law in this area, you really need experienced counsel to guide you through the process. And if the employer refuses to allow you to return to work when your restrictions are such that you could do your old job, or another open job in the same company, you need to contact counsel to fight for you.
The California Healthy Families Act
California was one of the first states to enact a paid sick leave law. Under the Healthy Families Act, California employers are required to provide no less than 3 days of paid sick leave per year, and in some cases the employer can be required to provide up to 6 days of paid sick leave in a year. You must be working for the company for a period of time before you accrue the right to this paid sick leave. The employer can create reasonable procedures for your exercise of your rights under the law, but it is unlawful for an employer to discourage you from using your paid sick leave, or to retaliate against you for using paid sick leave.
The California Pregnancy Disability Leave Law (PDL)
In addition to the leave laws described above, if you work for an employer that employs at least five employees in California, the California Pregnancy Disability Leave Law, or PDL, provides you additional leave if you experience a physical or mental condition related to pregnancy or childbirth that prevents you from performing the essential duties of your job, or if your job would cause undue risk to you or the successful completion of your pregnancy. The PDL requires your employer to provide reasonable accommodations to address your pregnancy-related disability, including, but not limited to, modifying your work duties to be less strenuous, use of a stool or chair while performing your work, temporary transfer to a less strenuous or hazardous job within your place of work, provision of longer or more frequent rest periods, private lactation accommodations and/or additional unpaid leave.
The California New Parent Leave Act
California has recently enacted the New Parent Leave Act (“NPLA”) to address many employees who do not work for large enough companies to qualify for the FMLA or CFRA. Under the NPLA employees in California who work for an employer of at least 20 employees within 75 miles of the requesting employee’s place of work are now entitled to the same leave as those employees who qualify under the FMLA and CFRA, discussed above. All other qualification metrics apply – i.e. at least one year with the employer, and put in at least 1,250 hours of work in the year prior to the requested leave. Qualifying employees get the same 12 weeks of unpaid, job-protected leave for baby bonding as those under the FMLA/CFRA.
What Should I Do If My Employer Denies Me Medical Leave or Retaliates Against Me For Taking Leave?
Each of the statutes discussed on this page have provisions to ensure the proper provision of these rights to the qualifying employee, and each contain anti-retaliation provisions. It is therefore unlawful for your employer to unlawfully deny you your rights under these statutes, and it is further unlawful to retaliate against you in any way for asking for, or taking advantage of, these rights.
If you face any kind of denial of your right to leave, or you face retaliation in any form for asking for or receiving these rights, it is important that you immediately write down what happened so that later on you will be able to remember with strong clarity what occurred. If you are in an organization large enough to have an established HR department, it would be prudent to immediately report the wrongful conduct to HR, and do so in writing. Be sure to keep copies of any emails or other written communications related to the denial of the rights, the retaliation you face, and any reporting made by you. Then contact an attorney, like those at Pedersen Law, to assist you in enforcing your rights and protecting your job.
How a Medical Leave Lawyer from Pedersen Law Can Help
If you have experienced problems taking medical leave you are entitled to by law, whether in Irvine, CA, Los Angeles County, Orange County, Riverside County, San Bernardino County, or any other area in Southern California, the skilled, compassionate medical leave attorneys from Pedersen Law can help. Our clients have the benefit of our wealth of experience working with experts in the field of FMLA. Contact Pedersen Law today for help with your FMLA claim.