The California Family Rights Act differs from the FMLA in several ways. The new FMLA regulations do not necessarily apply in all instances.
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California Employee Leaves Update
Not All New FMLA Regulations
Apply In California
By Christopher W. Olmsted
The U.S. Department of Labor published new regulations governing the Family Medical Leave Act (FMLA). The rules became effective on January 16, 2009. (For a summary, follow this link.
California has its “own version of FMLA” in the California Family Rights Act (“CFRA”). CFRA is similar to FMLA in many ways (e.g. employers of 50 or more; 12 weeks of leave), but there are enough differences between the two leave acts to drive an HR professional batty.
Because California has a separate statutory and regulatory scheme, the new FMLA regulations do no uniformly apply here. The California agency responsible for regulating CFRA, the Fair Employment and Housing Commission, issued a statement and a chart comparing the two Acts and their regulations.
Will California Update Its CFRA Regulations?
The statement reads: “On November 17, 2008, the federal Department of Labor issued revised regulations interpreting the federal Family and Medical Leave Act. These regulations now deviate from comparable regulations that the Commission has issued interpreting the California Family Rights Act. The Commission plans to revise its CFRA regulations, but in the interim, it has created a Table comparing differences between the revised FMLA regulations and the Commission’s CFRA regulations.”
It is not known when new CFRA regulations will be proposed, or whether the new regulations will bring CFRA closer in alignment with FMLA. Employers must of course comply with both state and federal law.
CFRA vs. FMLA
The comparison chart is not an exhaustive catalogue of all differences between CFRA and FMLA. Further, it is the agency’s interpretation of the differences, and not necessarily California law. That said, here are a few of the issues referenced in the chart:
Domestic Partners. FMLA covers leave to care for “spouses” in the traditional sense of the word, while in California, registered domestic spouses are included.
Military Leave. FMLA now includes 26 weeks of leave to care for inured family members in the military, and 12 weeks of leave for “qualified exigencies” related to certain military deployments. California does not offer this right, although in a separate statute spouses of certain military members may take leaves.
Pregnancy Disability Leave may “count” as FMLA leave, but in California, it is excluded from CFRA. California’s Pregnancy Disability Leave Act provides a separate four month entitlement for pregnancy disability, on top of the CFRA’s 12 weeks for care of the newborn baby.
Baby Bonding Leave: Under FMLA, the employer may consent to allow employees to take intermittent leave to bond with a newborn (i.e., the 12 weeks need not be taken all at once). Under CFRA, employer consent is not needed, but the minimal leave period is two weeks (with allowance for short periods on two occasions).
Overtime. Under FMLA, overtime hours that would have been worked but for leave can be deducted from the 12 week leave entitlement. The employer has no express comparable right under CFRA.
Notice of Rights. Under CFRA, the employer must designate and approve leave within 10 days. Under FMLA, notice must be given in five days. FMLA also requires the employer to provide at least one reason when protected leave is denied, while CFRA has no such requirement.
Disclosure of Serious Health Condition. FMLA allows employers to obtain a diagnosis of the claimed serious health condition, but CFRA forbids employers from asking for a diagnosis.
Second/Third Medical Opinions. FMLA allows the employer to obtain a second/third medical opinion regarding the serious health condition of the employer’s family member. CFRA does not permit second or third opinions where the leave is for the employee’s family member.
The chart covers a number of additional differences. To download the chart, click here.
More Legal Update articles.
Download entire April 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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