Family and Medical Leave – FMLA Lawyers

San Francisco attorneys protecting the right of employees to take family, medical, or other leave as provided by state or federal law

Under certain circumstances, employees are entitled to take job-protected leave from work because of their own or a family member’s serious health condition or to bond with a newborn baby. The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide remedies for employees who are denied required leave, who are fired for taking it, or who are not allowed to return to work after their leave ends. The family and medical leave lawyers at Minnis & Smallets help employees pursue those remedies when their rights have been violated.

Am I entitled to take a family or medical leave?

The FMLA and the CFRA give many employees the right to take up to 12 weeks of unpaid leave for any of the following reasons:

  • The employee’s serious health condition
  • The serious health condition of the employee’s child, parent, or spouse
  • Bonding with a child after childbirth (maternity/paternity leave)
  • The adoption or foster care placement of a new child in the employee’s family

A “serious health condition” includes any condition that requires an overnight, inpatient stay in a health care facility; a period of incapacity of more than three consecutive days and treatment from a health care provider;; or a period of absence to receive multiple treatments. Various laws also provide most California employees with the right to take job-protected pregnancy disability leave for up to 4 months. Visit our Pregnancy Disability page to learn more if you are unable to work because of a pregnancy.

Is my employer required to provide leave?

Employees are eligible for leave under the CFRA or FMLA if both of the following are true:

  • The employer has 50 or more full-time employees working within 75 miles of the employee’s job site. Local governments (cities and counties) and the State of California are required to provide leave regardless of the number of people they employ in a particular location.
  • The employee has worked for the employer for more than 12 months and has worked at least 1,250 hours during the 12 months before leave begins.

Pregnancy disability leave must be provided to eligible employees by any California employer that has more than 5 employees. Unlike the FMLA or the CFRA, an employee who has worked for the employer for less than one year is entitled to take pregnancy disability leave. Visit our Pregnancy Disability page to learn more.

What are my rights under the FMLA/CFRA?

Employees who take family or medical leave are entitled to return to the same or an equivalent position after the leave, except in limited circumstances, such as when the employee would have been terminated in a layoff even if the employee had not taken a medical leave. An employer may not use the employee’s family or medical leave as a “negative factor” in the layoff decision.

Employees who participate in a group health plan that is furnished by the employer are entitled to continue their enrollment in the plan while they are taking a family or medical leave.

Employees who take a family or medical leave are entitled to accrue seniority and to participate in employee benefit plans (such as life and disability insurance and pension plans) to the same extent as if leave had been granted for any other reason.

Employees who are entitled to leave have the right to take as much of their 12 week leave as they need all at one time. They can also take shorter leaves that cumulatively add up to 12 weeks.

Can I use my sick leave if I want to be paid during a family or medical Leave?

FMLA and CFRA leave is unpaid. However, if you take a family or medical leave for any reason, you can use your accumulated vacation pay or other accumulated paid leave (other than sick leave) during your absence, until you have used up those benefits.

If you take a medical leave because of your own serious health condition, you can also use your accumulated sick leave during your absence, until you have used up that benefit.

What do I do if the law is violated?

If you gave your employer proper notice of your need for medical leave (or if you were unable to give sufficient notice due to an emergency) and your employer fired you for taking a leave, refused to reinstate you when you were ready to return to work, refused your leave request, or punished you in some way for requesting or taking a leave, you should seek legal advice. The employment lawyers at Minnis & Smallets have substantial experience representing employees with family and medical leave issues. To ask us for advice, call 1-415-551-0885 or submit our online contact form.