Family Medical Leave Act and California Family Rights Act FAQs

It means three complete employee work days based on his/her schedule. For example, for an eight hour day the employee would be need to be absent the full eight hours for three consecutive days.

The days need not be work days. For example, if an employee is out sick on Friday, and also on the following Monday this would qualify as four consecutive days for the purposes of this policy.

Extenuating circumstances” mean circumstances that prevent the follow-up visit from occurring as planned by the health care provider.

For example, extenuating circumstances exist if the health care provider determines that a second in-person visit is needed w/in the 30-day period, but the health care provider does not have any available appointments during that time period.

To be eligible for family or medical leave, an employee must have been employed by the County for at least 12 months and actually worked for at least 1,250 hours during the preceding 12 months. If an employee would have met the 1,250 hours to qualify but for intervening military service, the employee must be credited with the hours he would have worked but for that service.

The 1,250 hours are “hours worked” under the Fair Labor Standards Act, including but not limited to overtime. Time served as a temporary agency employee working for the County is counted when determining FMLA/CFRA eligibility once the temporary agency employee has accepted a regular position with the County.

An employee’s spouse, registered domestic partner, child or child of registered domestic partner, and parents are immediate family members for purposes of FMLA/CFRA. The term “parent” does not include a parent “in-law.” Siblings, non-disabled adult children, and “significant” others” are not covered. There are different definitions for military caregiver leave (See definitions in the Military Leave Under FMLA section to this policy).

• Child: A son or daughter (including a biological, adopted or foster child, a step child, a legal ward or a child of a person standing in loco parentis) who is under 18 or age 18 or older if incapable of self-care because of a mental or physical disability that substantially limits one or more of the major life activities of an individual.
• Parent: A biological parent or an individual who stands or stood in loco parentis to an employee when the employee was a child; it does not include parents “in law.” A biological or legal relationship is not necessary.
• Registered Domestic Partner: A member of a same sex couple or a person of an opposite sex couple if one or both of the opposite sex couple is over the age 62 and other eligibility criteria established by California Family Code Section 297 are satisfied. In any case, there must be a Declaration of Domestic Partnership on file with the California Secretary of State. References to registered domestic partner, in this policy, also include other relationships recognized by California law and not by federal law.
• Spouse: A legally married spouse as defined by state law. It does not include a registered domestic partner.

A family member under CFRA is the same as under FMLA and includes a registered domestic partner and the child of a registered domestic partner.

Eligible employees are entitled to family and medical leave for the following reasons:

a) To care for the employee's own "serious health condition" which makes him or her unable to perform the essential functions of the job; or

b) To care for a spouse, child, or parent who has a "serious health condition"; or

c) To attend the birth of a child, and to care for that child; or

d) To care for a child placed with the employee for adoption or foster care.

e) For a qualifying exigency that arises from the employee's spouse, son or daughter (of any age), or parent being on active duty or having been notified of an impending call or order to active duty in support of a contingency operation. This type of FMLA leave is addressed separately in the Military Leave Under FMLA section to this policy.

f) To care for a covered service member with a serious injury or illness. This type of FMLA leave is addressed separately in the Military Leave Under FMLA section to this policy.

The circumstances in which the County is required to grant CFRA are the same as for FMLA except that an eligible employee is also entitled to a leave:

a) for the birth of the child of the registered domestic partner and to care for the newborn child of the registered domestic partner; and

b) to care for the registered domestic partner, or child of the registered domestic partner with a serious health condition.

A "serious health condition" must involve:

a) Inpatient care in a hospital or medical care facility, or

b) Continuing treatment by a health care provider.

Under FMLA, "continuing treatment by a health care provider" means:

a) A period of incapacity of more than three consecutive full calendar days and any subsequent treatment or period of incapacity relating to the same condition that involves either (a) treatment two or more times by a health care provider within 30 days from the first day of incapacity; or (b) treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of a health care provider; or

b) Any period of incapacity due to pregnancy or for prenatal care; or

c) Any period of incapacity or treatment for such incapacity due to a “chronic serious health condition,” which is condition that (*a) requires periodic visits for treatment by a health care provider, (b) continues over an extended period of time (including recurring periods of a single underlying condition), and may cause episodic rather than a continuing period of incapacity (e.g., asthma, epilepsy, diabetes, etc.); or

d) Any period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective; or

e) Any period of absence to receive multiple treatments (including any period of recovery) by a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment (e.g., chemotherapy for cancer, physical therapy for severe arthritis, or dialysis for kidney disease).

The 12-month eligibility period begins on the date an employee’s first FMLA/CFRA leave begins. The next 12-month period would begin the first time the employee takes FMLA/CFRA leave after completion of any previous 12-month period.

No. Eligible employees are entitled to up to 12 weeks of FMLA/CFRA leave total during the 12-month eligibility period, regardless of the number of qualifying events that occur during that period. The FMLA leave provisions are different for military caregiver leave and are discussed separately under an addendum to this policy.

If both parents are County employees, each parent is entitled to 12 weeks to care for a new child as long as each meets the eligibility requirements.

If you are using leave balances either the day before or after the holiday, you are entitled to holiday pay. If you are in an unpaid status the day before and the day after the holiday, you are not entitled to holiday pay.

Yes, if the holiday falls within a full week of FMLA/CFRA leave, then it is counted as FMLA/CFRA leave. If the employee is using FMLA leave in increments of less than one week, a holiday falling during the leave does not count as FMLA leave unless the employee was otherwise scheduled and expected to work the holiday.

Yes, if you are normally required to work overtime hours but for the FMLA/CFRA leave, the missed overtime hours are counted as FMLA leave.

Upon return from FMLA/CFRA leave, an employee will be reinstated to his/her original job or to an equivalent job with the same or equivalent pay, benefits, and other employment terms and conditions, unless the employee is no longer able to perform one or more essential functions.

If an employee on FMLA/CFRA leave would have been laid off had he or she not been absent, then the employee would not be entitled to reinstatement.

No, the Department of Labor specifically prohibits the transfer of employees for taking unforeseeable or unscheduled intermittent leave.

Yes. If you have a serious health condition which requires an absence for a short time period or are caring for a family member with such a condition, you can be approved for intermittent or reduced-schedule FMLA/CFRA leave by requesting it and providing medical certification per the County’s FMLA/CFRA Policy.

The County is required to initiate FMLA/CFRA for eligible employees regardless of a specific request. An employee may not elect or choose whether FMLA/CFRA leave applies.

No. You can’t “save” FMLA/CFRA leave for later. If your reason for needing time off is one of the four circumstances under which the County is required to designate the time as FMLA/CFRA leave (birth, adoption, family care, serious health condition), you are required to use accrued leave balances as specified in Section 6 of the County’s FMLA/CFRA Policy, and the County is required to deduct the time from your entitlement, if eligible, of up to 12 weeks of family medical leave.

No. Carryover of unused FMLA/CFRA leave from one 12-month period to the next is not permitted.

No. You must use sick leave balances for FMLA/CFRA leave prior to vacation, HIL, or optional CTO.

Family leave to care for a new child shall be taken within twelve (12) months of the birth or placement of the child in the home.

If leave is foreseeable based on a birth, adoption, or planned medical treatment, an employee must give the County 30 days' notice of his/her intention to take leave. If leave is not foreseeable, the employee must provide such notice "as is practicable." In most circumstances, this means within either the same day or the next business day of learning of the need for the leave.

The employee should provide notice to his/her supervisor and/or his/her Human Resources representative within 2 business days of return to work.

The employee shall provide at least verbal notice sufficient to make the County aware that the employee needs family or medical leave, and the anticipated timing and duration of the leave.

The employee does not have to expressly mention the FMLA/CFRA-qualifying reason when he seeks leave for the first time.

The employee must state the reason the leave is needed, however he/she is not required to provide a diagnosis, nor can he/she be asked for one.

It is then up to the County to inquire further of the employee if it is necessary to have more information about whether family or medical leave is being sought by the employee and to obtain the necessary details of the leave to be taken.

Once FMLA/CFRA leave has been granted for an employee's health condition, he must specifically mention either the qualifying reason or the need for FMLA/CFRA leave. Calling in "sick" is not sufficient.

You must continue to comply with your Department’s “call-in” procedure even if you have a FMLA/CFRA designation.

The County may require an employee to obtain certification of a "serious health condition" from the employee's health care provider.

The County can pay for a second opinion if it doubts the validity of the original certification. If the second opinion conflicts with the first, the County may pay for a third opinion.

The provider of the third opinion must be jointly preliminarily designated or approved by the County and the employee. The third opinion will be final.

Yes, see the medical certification form.

Your health care provider is not permitted to disclose your diagnosis without first obtaining your consent. The County may not require the disclosure of a specific serious health condition (diagnosis) of an employee or family member.

Yes. When you request leave for an FMLA/CFRA qualifying reason, or when the County learns that your leave is for an FMLA/CFRA qualifying reason, the County must notify you that your leave has been preliminarily designated as FMLA/CFRA and will be counted against your FMLA/CFRA leave entitlement.

The County may give you either oral or written notice of the designation; if the County gives you oral notice, it must be confirmed in writing.

See Section 7.2 of the County FMLA/CFRA Policy for specific information regarding the County’s FMLA/CFRA designation notice requirements.

If the County had knowledge that your leave was for an FMLA/CFRA qualifying reason, but did not designate the leave as FMLA/CFRA and notify you of the designation within the time allowed, then the County may not retroactively designate your leave as FMLA/CFRA.

However, if the County only learns after the fact that your leave was for an FMLA/CFRA qualifying reason, it may retroactively designate your leave as FMLA/CFRA by promptly notifying you.

If your leave is ongoing, and the County had knowledge that the leave was for an FMLA/CFRA qualifying reason but failed to properly designate the leave, then the County may only designate the remainder of your leave as FMLA/CFRA, starting from the date the County notifies you of the designation.

While you are on FMLA/CFRA leave, your benefits – which may include medical, dental, optional life insurance, flexible spending, health saving account(s) and employee assistance program benefits – will continue for a maximum of 12 weeks.

You must also continue to pay your share of the coverage premiums, if applicable. If you do not qualify for FMLA/CFRA leave, or if you remain off work after your FMLA/CFRA leave is exhausted, your benefits will terminate unless you make arrangements with the Employee Benefits Office to pay for your coverage.

If you exhaust CFRA leave to care for your registered domestic partner and you have not used all of your FMLA entitlement the County is required to provide benefits for the duration of any remaining unpaid FMLA leave.

If you are on unpaid status for the baby bonding/CFRA leave the County will continue to pay for the employer portion of your benefits.

Consistent with the County’s healthy work place policy (Wellness policy) all absences, protected by FMLA are not counted when determining eligibility.

Exigency leave may be taken for any qualifying exigency arising out of the fact that a covered military member is on active duty or call to active duty status. Qualifying exigencies include:

a) Issues arising from short notice of deployment;

b) Military events and related activities related to the active duty or call to active duty status of a covered military member;

c) Certain childcare and related activities related to the active duty or call to active duty status of a covered military member;

d) Making or updating financial or legal arrangements to address a covered military member’s absence;

e) Attending counseling which arises from the active duty or call to active duty status of the covered military member;

f) Certain activities arising related to the care of the military member’s parent who is incapable of self-care;

g) Spending time with a member of the military who is on rest and recuperation leave;

h) Attending to certain post-deployment activities.

Deployment on seven or less days of notice.

Activities such as attendance at arrival ceremonies, reintegration events or programs sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty status, or to address issues that arise from the death of a covered military member such as meting and recovering the body of the covered military member and making funeral arrangements.

No, registered domestic partners and same-sex spouses are not recognized under Federal law, however there is a California law that allows an employee to take up to 10 days off during a period when his/her spouse or registered domestic partner is on leave from deployment during a period of military conflict. See L-2 policy under Military Spouse Leave Law.

Combined, you can take up to 12 weeks during a one year period. For issues relating to short notice of deployment you can take up to seven days.

For spending time with a member of the military who is on rest and recuperation leave you can take up to five days.

A covered military member is the employee’s spouse, son, daughter or parent who is on active duty or been called to active duty status.

Active duty or call to active duty status refers to a member of the Regular Armed Forces, National Guard or Reserves who is under a call or order to active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.

Yes, the regulations contain special definitions of “child” for both of the military family leave provisions.

You must advise the County of your need for FMLA leave as soon as practicable.

You must provide a copy of the covered military member’s active duty orders or other documentation issued by the military that indicates that the covered military member is on active duty or call to active duty status.

In addition you must provide documentation supporting the specific provision of the exigency leave you are using.

For example, if you are attending counseling related to the covered military member’s call to duty you should provide certification from the counselor of your attendance at the appointment.

No, you may use your leave balances to cover your time off, but the leave is not a paid leave.

Military caregiver leave may be taken by an eligible employee to care for a covered service-member with a serious injury or illness incurred in the line of duty.

A current member of the Armed Forces, including a member of the National Guard or Reserves who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness incurred in the line of duty on active duty.

Covered service-member also includes a veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was a member of the Armed Forces or was discharged or released under conditions other than dishonorable at any time during the five preceding years.

Yes, under the military caregiver provisions “son or daughter” means any biological, adopted or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis.

An injury or illness incurred in the line of duty on active duty that may render the service-member medically unfit to perform the duties of the member’s office, grade, rank or rating.

You are entitled to take up to 26 workweeks of leave during a 12-month period.

The 12-month period begins on the first day the employee takes military caregiver leave and ends 12 months after that date.

Yes, the regulations provide that an eligible employee is entitled to a combined total of 26 weeks of military caregiver leave and leave for any other FMLA-qualifying event, providing that you may not take more than 12 weeks of leave for the other qualifying event in a 12 month period.

For example, in the 12 month period an employee could take 12 weeks of FMLA leave for his/her own serious health condition and 14 weeks of military caregiver leave, but could not take 16 weeks of leave for his/her own serious health condition, and 10 weeks of military caregiver leave.

You may take leave for more than one service-member or for more than one serious injury or illness to the same service-member as long as the total leave does not exceed 26 weeks in a 12-month period.

You must advise the County of your need for FMLA leave as soon as practicable.

You must provide requested medical certification for this event as requested by the County.

No, you may use your leave balances to cover this time off.