Leave of Absence
How California Employees Request and Receive Leaves of Absence
How California Employees Request and Receive Leaves of Absence

How California Employees Request and Receive Leaves of Absence

San Francisco employment lawyers explain an employee’s entitlement to request a leave of absence in California

Many California employees are entitled to request and receive a leave of absence for certain medical events, including the serious illness of the employee or a close family member; a disability, including a disability caused by pregnancy or pregnancy-related condition; and to bond with a newborn or adopted child. A San Francisco employment lawyer can assist employees who are denied a legally required leave of absence.

Family Leave Eligibility

The federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) protect employees who need an unpaid leave to:

  • take care of their own serious illness
  • care for a seriously ill spouse, child, or parent
  • bond with a newborn or an adopted child or a foster child

Employees are eligible for the protections of FMLA and/or CFRA if three conditions are met:

  • The employer employs 50 or more persons in either part-time or full-time positions within a 75-mile radius of the employee’s worksite.
  • The employee has worked for the employer for at least 12 months.
  • During the 12 months immediately before requesting a leave, the employee has worked at least 1,250 hours.

An employee who is eligible for leave under FMLA/CFRA may take up to 12 weeks of unpaid leave over a 12-month period. The leave does not need to be taken in one continuous period and can be taken intermittently. Most employees who take FMLA/CFRA leave are entitled to reinstatement to the same or a comparable job with no loss of seniority after the leave ends.

Employees who have questions about their eligibility for FMLA/CFRA protection should seek advice from a San Francisco employment attorney.

Requesting an FMLA or a CFRA Leave

Employees must request an FMLA/CFRA leave at least 30 days before the leave will begin if it is reasonably possible to do so. If the need for a leave is unforeseeable and does not permit a 30-day notice, the employee should give the employer as much notice as possible.

The notice should advise the employer of the date the leave will start and of the date it is expected to end. Notice of the request to take a leave can be given verbally or in writing. If the employer provides a form for the purpose of requesting a leave, it is usually best to use the form. Making the request in writing and keeping a copy can help the employee avoid disputes about whether and when notice was provided to the employer.

When an employer refuses to permit a leave, refuses to reinstate an employee who has taken a leave, or fires an employee for taking a leave, the employee should obtain legal advice from an employment attorney in San Francisco. In many cases, the employee will be entitled to a remedy.

Disability Leave Eligibility

Federal and California laws that protect disabled employees require employers to grant reasonable accommodations that make it possible for the employee to perform the job. In some cases, granting a leave of absence might be a reasonable accommodation of a disability.

For example, if an employee takes FMLA/CFRA because of the employee’s own serious health condition but is still too ill to return to work at the end of the 12-week leave, the employee may be entitled to additional leave as a reasonable accommodation. When an employee who is otherwise entitled to reasonable accommodations for his or her disability requests a leave as a reasonable accommodation, the employer may be required to grant the request unless doing so would cause an undue hardship.

Pregnancy Disability Leave Eligibility

Employees who are disabled by a pregnancy may be entitled to Pregnancy Disability Leave during the time period in which the employee is unable to work due to pregnancy or a pregnancy-related condition. Typically, health care providers will certify that an employee is disabled for four weeks before childbirth and six to eight weeks after childbirth. While Pregnancy Disability leave runs concurrently with FMLA leave, it is in addition to any CFRA leave (such as a leave to bond with a newborn) to which the employee may be entitled.

An employee is eligible for Pregnancy Disability Leave while working for a California employer that employs five or more persons. Unlike the CFRA, an employee is not required to work a minimum period of time before becoming eligible to take a Pregnancy Discrimination Leave.

Requesting a Pregnancy Disability Leave

As is true of FMLA/CFRA leave, an employee must give an employer 30 days’ notice of the need for leave if the need is forseeable.

The notice of intent to take a Pregnancy Disability Leave can be verbal or in writing but, as with FMLA/CFRA leave, there are advantages to submitting a written notice. The notice should state that the leave is for pregnancy, childbirth, or related conditions and, to the extent it is foreseeable, should identify the date the leave will start and its anticipated duration.

The employer may require the employee to provide a written medical certification from a health care provider that confirms the employee’s need for a leave. The health care provider is not required to divulge the specific symptoms or medical circumstances that make the leave necessary, but must confirm that the leave is needed due to pregnancy or a pregnancy-related condition.

When an employer denies a Pregnancy Disability Leave or refuses to reinstate an employee after the leave ends, a San Francisco employment lawyer can advise the employee about her rights.

Getting Help

The employment attorneys at San Francisco’s Minnis & Smallets represent employees who are denied leaves that the law requires, who are terminated for requesting a leave, who are denied reinstatement, or who need advice so that they can better understand their entitlement to a leave. To talk to an experienced employment law attorney, call us at 1-415-551-0885 or submit our online contact form.

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