FMLA Lawyer in California
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What California Employees Need to Know About FMLA and CFRA Rights
California employees are protected by two overlapping leave laws: the federal Family Medical Leave Act (FMLA) and California’s California Family Rights Act (CFRA), Government Code § 12945.2. California’s law is significantly stronger. As of January 1, 2021, CFRA covers any private employer with five or more employees, compared to the federal FMLA’s 50-employee threshold, and extends job-protected leave to a broader list of family members, including registered domestic partners, grandparents, siblings, and a designated person of the employee’s choosing. If your employer denied, interfered with, or retaliated against you for taking protected leave, California law gives you up to three years to bring a claim.
If you work for a small company and were told you have no leave rights, that answer may be wrong under current California law. Our Family Medical Leave Act attorneys in Los Angeles regularly see employees whose rights were violated precisely because their employer was unaware of the 2021 expansion.
How the Family Medical Leave Act and CFRA Compare
Most California employees are covered by both laws simultaneously. Where they overlap, the employee gets the benefit of whichever protection is stronger. The table below shows where they diverge on the issues that matter most to workers.
Dimension | Federal FMLA | California CFRA (Gov. Code § 12945.2)
|
|---|---|---|
Private employer size threshold | 50+ employees within 75 miles of worksite | 5+ employees (all public employers regardless of size) |
Leave entitlement | Up to 12 workweeks per 12-month period | Up to 12 workweeks per 12-month period |
Covered family members for care leave | Spouse, child, parent | Spouse, registered domestic partner, child (including adult children), parent, grandparent, grandchild, sibling, parent-in-law, and a designated person |
Military caregiver leave | Up to 26 workweeks per 12-month period for a covered injured servicemember | No equivalent provision |
Statute of limitations (retaliation/interference) | 2 years (3 years for willful violations) | 3 years from adverse action; CRD Right-to-Sue notice required |
The one area where FMLA goes further is the military caregiver provision: eligible employees may take up to 26 workweeks in a single 12-month period to care for a covered servicemember with a serious injury or illness, a benefit that has no direct CFRA counterpart, as confirmed by the California Civil Rights Department (CRD).
Who Qualifies for FMLA and CFRA Leave in California
To be eligible under either law, an employee must satisfy three requirements:
- At least 12 months of service with the employer (need not be consecutive)
- At least 1,250 hours worked during the preceding 12-month period
- Employment with a covered employer (five or more employees under CFRA; 50 or more employees within 75 miles under FMLA)
The 1,250-Hour Rule and Part-Time Workers
Many employees assume part-time schedules automatically disqualify them. That is not necessarily true. A part-time worker who accumulates at least 1,250 hours over 12 months, roughly 24 hours per week on average, meets the hour threshold. The key is the actual hours worked in the specific 12-month period before the leave request, not a general characterization of the position as part-time.
Special Eligibility Rule for Airline Crew Members Under CFRA
Flight deck and cabin crew members qualify for CFRA leave under a modified standard set out in Government Code § 12945.2(r): 12 months of service, plus having been paid for at least 60 percent of the applicable monthly guarantee (annualized), plus a minimum of 504 hours worked or paid in the preceding 12 months. This standard replaces the standard 1,250-hour calculation for this specific employee class.
What Counts as a Serious Health Condition
Employers frequently dispute whether a condition qualifies, and that dispute is often used as a pretext to deny leave. Both FMLA and CFRA define a serious health condition as an illness, injury, impairment, or physical or mental condition that involves either inpatient care (an overnight stay in a hospital, hospice, or residential medical care facility) or continuing treatment by a health care provider.
Under U.S. Department of Labor Fact Sheet #28P, “continuing treatment” requires all of the following:
- A period of incapacity of more than three consecutive full calendar days
- A visit to a health care provider within seven days of the incapacity’s onset
- Either a course of prescribed treatment or at least one additional provider visit within 30 days
A back injury that keeps an employee home for four days and involves a doctor visit on day two, followed by a prescription, is a straightforward example of a qualifying serious health condition. An employer who denies leave in that scenario is likely in violation of both laws.
Qualifying Reasons for Leave and Who Counts as a Family Member
Under CFRA, eligible employees may take up to 12 workweeks per 12-month period for:
- Bonding with a newborn, newly adopted, or foster child
- Caring for a covered family member with a serious health condition
- The employee’s own serious health condition that prevents performance of essential job functions
- A qualifying exigency arising from a covered family member’s active military duty
CFRA’s expanded family-member list is one of its most significant advantages. Employees can take leave to care for a registered domestic partner, grandparent, grandchild, sibling, parent-in-law, or a “designated person,” a term that allows the employee to identify any individual related by blood or whose association is the equivalent of a family relationship. Under federal FMLA, family-care leave is limited to a spouse, child, or parent. That gap means an employee caring for a sick sibling or grandparent is protected under CFRA but may have no federal leave right at all.
To understand the most common ways employers misapply these rules in practice, see our guide to the top FMLA violations in California.
Your Rights During and After Leave
CFRA leave is unpaid and job-protected. Under Government Code § 12945.2(a), an employer that grants leave must guarantee the employee a position in the same or a comparable role upon return. A comparable position is one with the same or similar duties and pay that can be performed at the same or similar geographic location. An employer who fills the role permanently while the employee is on leave and then refuses reinstatement is not shielded simply by pointing to operational necessity: the burden is on the employer to prove any elimination of the position was genuinely unrelated to the leave.
Additional employer obligations during leave include:
- Maintaining the employee’s group health coverage on the same terms as if the employee had remained continuously employed (per the CRD’s leave guide)
- Posting a notice explaining CFRA provisions in a location visible to employees and applicants; electronic or intranet posting satisfies this requirement provided it is also accessible to applicants
You Do Not Have to Say “FMLA” or “CFRA” to Trigger Protection
A frequent employer tactic is to claim the employee never “formally requested FMLA leave.” Under guidance from the California Department of Human Resources (CalHR), an employee’s notice does not need to invoke either law by name. A general statement such as “I need time off for surgery” or “I’m caring for a sick family member” is legally sufficient to trigger the employer’s obligations. Employees who were denied leave after making a general medical request should not assume the denial was lawful simply because they never said “FMLA” or “CFRA.”
FMLA and CFRA Retaliation: What Employers Cannot Do
Government Code § 12945.2(q) expressly makes it an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of any CFRA right, including retaliation against an employee for requesting or taking leave. Common patterns our attorneys see include:
- Termination or demotion shortly after the employee returns from leave
- Attendance-point systems that count protected FMLA or CFRA absences as negative events
- Negative performance reviews timed to the period of leave or the return from leave
- Denial of promotions or pay increases that were on track before the leave
For a detailed look at how these violations arise and what evidence to gather, see our article on CFRA leave rights violations in California.
Illustrative example: An employee at a 12-person company takes eight weeks of leave after a parent’s stroke. When she returns, HR tells her the position was restructured and offers her a role with fewer responsibilities and a 15 percent pay cut. Under Government Code § 12945.2(a), the employer is required to restore her to the same or a comparable position, one with the same or similar duties and pay. A lateral reduction in pay almost certainly fails that standard. The employer’s framing of the change as a “restructuring” does not defeat the claim; the employee would be able to challenge it before the CRD or in court.
Deadlines and Where to File
- CFRA claims: File with the California Civil Rights Department within three years of the adverse action. A CRD Right-to-Sue notice is required before filing a lawsuit in civil court.
- Federal FMLA claims: Two years from the date of the violation, extended to three years if the violation was willful.
- Available remedies (qualitative): Reinstatement, recovery of lost wages and benefits, and attorney’s fees under both laws.
Small-Employer Mediation: What Employees at 5 to 19-Person Companies Need to Know
Employers with 5 to 19 employees may invoke the Small Employer Family Leave Mediation Pilot Program administered through the CRD. If the employer requests mediation within 30 days of the employee’s CRD Right-to-Sue letter, the employee cannot file a civil lawsuit until mediation concludes. This does not eliminate the employee’s rights; it adds a procedural step before litigation. Note: the current status of this pilot program should be confirmed with the CRD before relying on it, as its original authorization included a sunset provision. For specific guidance on how this affects your timeline, consult an attorney. You can also review our broader discussion of FMLA and CFRA rights in California for additional context.
Frequently Asked Questions
Does CFRA apply to my employer if we have only 10 employees?
Yes. As of January 1, 2021, CFRA applies to any private employer with five or more employees. The federal FMLA’s 50-employee threshold no longer defines the floor for California workers.
Can I take CFRA leave to care for my domestic partner or sibling?
Yes under CFRA. Registered domestic partners, siblings, grandparents, grandchildren, parent-in-law, and a “designated person” are all covered family members under Government Code § 12945.2. Federal FMLA does not cover most of these relationships for family-care leave purposes.
What if my employer says my condition does not qualify as a serious health condition?
An employer’s characterization is not the final word. If your condition involved inpatient care or more than three consecutive days of incapacity with medical treatment, it likely meets the statutory definition. An employment attorney can evaluate whether the denial was lawful.
Does my employer have to pay me during CFRA leave?
CFRA leave itself is unpaid. However, California’s State Disability Insurance (SDI) and Paid Family Leave (PFL) programs may provide partial wage replacement during qualifying leave periods. Employers may also require or allow employees to use accrued paid leave concurrently.
How long do I have to file a retaliation claim?
Under CFRA, you have three years from the adverse action to file with the CRD. Under federal FMLA, the deadline is two years (three for willful violations). Missing these deadlines can bar your claim, so do not delay if you believe your rights were violated.
Speak with a California FMLA and CFRA Attorney
If your employer denied your leave request, changed your role after you returned, or counted your protected absences against you, you may have actionable claims under CFRA, FMLA, or both. The attorneys at Setareh Law Group focus on California employment law and can evaluate your situation without charge. Contact us to schedule a consultation. For more information on how we help employees in these situations, visit our Family Medical Leave Act lawyer page. No outcome is guaranteed, but knowing your rights is the first step.
Contact us today:
📞 Phone: 310-888-7771
✉️ Email: help@setarehlaw.com
🌐 Address: 420 N Camden Dr, Beverly Hills CA, 90210
Disclaimer: This information is provided for educational purposes and does not constitute legal advice. Each case is unique, and outcomes depend on specific facts and circumstances. Consult with a qualified California employment attorney to discuss your individual situation.
Sources and Additional Resources
Authoritative sources cited
- California Family Rights Act (CFRA), Government Code § 12945.2
- California Civil Rights Department (CRD)
- U.S. Department of Labor Fact Sheet #28P
- California Department of Human Resources (CalHR)
Related Setareh Law Group resources
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