CFRA Leave – A Guide to the California Family Rights Act

The California Family Rights Act (CFRA) guarantees you 12 weeks of unpaid, job-protected leave each year as long as (1) your employer has at least five employees, (2) you have been working for them for at least 12 months, (3) you worked for them at least 1,250 hours in the last year, and (4) there is a qualifying reason, such as a new baby or if you or a family member is seriously ill or injured.

If your employer violates the law by either:

• refusing to grant you CFRA leave despite you being eligible, or
• failing to reinstate you after your leave ends, or
• retaliating against you for taking leave by wrongfully terminating you or by harassing or discriminating against you,

then you can report it to California’s Civil Rights Department (CRD). You then may be able to win:

• reinstatement to your job,
• back pay,
• reasonable attorney’s fees,
• damages for emotional distress, and
• administrative fines.

California Family Rights Act (CFRA)

AT-A-GLANCE

• Birth of child (“baby-bonding”)
• Adoptive- or foster care child placement
• Caring for covered family member with serious health condition
• Your serious health condition (not including pregnancy)
• Qualifying military exigency

• Spouse or registered domestic partner
• Children (or children of domestic partner)
• Parents and parents-in-law
• Siblings
• Grandparents
• Grandchildren
• A designated person (any individual related by blood or whose association with the employee is the equivalent of a family relationship)

Our California labor and employment attorneys will explain the following in this article:

• 1. Does CFRA apply to my employer?
• 2. Am I eligible for CFRA leave?
• 3. Is my job protected?
• 4. Is CFRA leave paid? Can I keep my health insurance?
• 5. How do I request CFRA leave?
• 6. Can my employer punish me for taking time off?
• 7. What if my employer violates my CFRA rights?
• 8. How does CFRA work with FMLA?
• 9. Additional resources

1. Does CFRA apply to my employer?

Your employer is covered by CFRA if it is either:

• a private employer engaged in any business in California that employs five or more employees, or
• the State of California and any other political or civil subdivisions, regardless of the number of employees. 1

Therefore, all employers are covered by CFRA except for companies with four or fewer employees.

The California Family Rights Act (CFRA) allows you (if eligible) to take up to 12 weeks of job-protected leave during a 12-month period.

2. Am I eligible for CFRA leave?

In California, you are eligible for CFRA leave if you:

1. were employed for a total of 12 months by your employer prior to starting your leave, and
2. worked for your employer for at least 1,250 hours during the 12-month period before your CFRA leave date.

If you meet the above requirements, you can take up to 12 weeks of CFRA leave from work in a 12-month period for either of the following reasons:

1. Child bonding leave within 12 months of the birth of a child, adoption of a child, or foster care placement of a child.
2. To care for a family member who suffers from a serious health condition. “Family member” includes your child, spouse, registered domestic partner, parent, grandparent, grandchild, sibling, or designated person – any individual related by blood or whose association with the employee is the equivalent of a family relationship).
3. For your own serious health condition if the condition prevents you from performing your job.
4. For a qualifying exigency related to the active duty or call to active duty of your spouse, registered domestic partner, child, or parent in the U.S. Armed Forces. (This leave can last up to 26 weeks instead of 12 weeks.)

Note that you can take only up to 12 weeks of CFRA leave in a 12-month period, even if you qualify for multiple leave periods. 2

“Serious health condition” definition

A “serious health condition” is an illness, injury, or physical or mental condition that requires:

• any period of incapacity or treatment in connection with inpatient care,
• any period of incapacity requiring time away from work or school for more than three consecutive days,
• ongoing treatment by a health care provider for an incurable health condition, and
• restorative dental or plastic surgery following an accident.

Serious health conditions do not include elective cosmetic surgery or preventative physical examinations. However, cosmetic treatments could qualify as serious health conditions in cases where unexpected complications result in inpatient hospital care.

Note that you may be required to produce medical certification of the serious health condition to your employer in order to take leave. In our experience, this does not happen very often, but employers are allowed to do this. 3

“Qualifying exigency” definition

A “qualifying exigency” involving military-related leave includes:

• short-notice deployment,
• military events and activities,
• childcare and school activity arrangements,
• financial and legal arrangements,
• counseling, and
• other activities and events upon which the employer and you can agree are appropriate exigencies. 4

3. Is my job protected?

Yes. If you take CFRA leave, you are entitled to return to your same work position, or an almost identical position, upon return from leave.

An exception applies if you:

• fraudulently obtained leave, or
• would not have been employed even if you had not taken leave. 5

4. Is CFRA leave paid? Can I keep my health insurance?

CFRA leave is unpaid, though CFRA does require that your employer continue providing you health insurance throughout your leave. 6

Several of our clients work for employers who do keep them on salary while they are on CFRA leave. Those who do not are often eligible for wage replacement benefits under either:

• California’s State Disability Insurance, or
• California’s Paid Family Leave (PFL) program, which provides up to eight weeks of paid leave in order to
  1. bond with a new child,
  2. care for a seriously ill child, parent, spouse, or registered domestic partner, or
  3. participate in a qualifying event because of a family member’s military deployment to a foreign country.

5. How do I request CFRA leave?

In our experience, you can find your company’s rules and procedures for requesting CFRA leave in your employee handbook or on your company website. You usually have to submit a form or written request to HR with the dates you need off.

6. Can my employer punish me for taking time off?

No. It is illegal for an employer to punish or retaliate against you for taking leave under CFRA.

Common forms of retaliation we see are:

• wrongfully firing you,
• failing to promote you,
• harassing you, and/or
• discriminating against you. 7

If you are punished for properly taking CFRA leave, you may be eligible to file a civil lawsuit against your employer for damages (discussed below).

If you take CFRA leave, you are entitled to return to your same work position, or an almost identical position, upon return from leave.

7. What if my employer violates my CFRA rights?

If your employer is refusing to let you take CFRA leave or is otherwise retaliating against you, we would file a claim with California’s Civil Rights Department (CRD).

Once CRD receives your complaint, they will investigate and – if they agree there is a violation – attempt to negotiate a settlement. Failing that, the CRD may issue an “accusation” and litigate the case before the Civil Rights Council or in civil court.

Alternatively, we can ask the CRD for a “right to sue” letter upfront so we can take your employer to court without CRD conducting an investigation. We usually recommend this route because we find employers are more open to favorable settlements once lawyers are involved.

Depending on our clients’ goals, we have been able to get our clients reinstated to their job and/or reimbursed for all their back pay as well as:

• reasonable attorney’s fees,
• damages for emotional distress, and
• administrative fines. 8

8. How does CFRA work with FMLA?

The Family and Medical Leave Act (FMLA) is a federal statute that largely mirrors CFRA. In cases where you qualify for both FMLA leave and CFRA leave, the leaves will run concurrently for a total of 12 weeks.

Three of the main differences between the California Family Rights Act and the Family and Medical Leave Act are:

1. FMLA applies to businesses with 50 or more employees, whereas CFRA applies to companies with at least five employees.
2. FMLA does not cover registered domestic partners unlike CFRA.
3. Pregnancy is considered a “serious health concern” under FMLA but not CFRA. Instead in California, pregnant women can receive up to four months of pregnancy disability leave (PDL) separate and apart from any CFRA leave for baby-bonding – and there is no eligibility period required before you can take PDL. 9

9. Additional reading

For more information, refer to the following:

• Expectant Parent and Parenting Support Hub – Help by the California Department of Social Services.
• Find help: First Time Parents/Caregivers Support – Compilation of organizations curated by First 5 California.
• California State Military Leave, Department of General Services – Companies 25 or more employees must permit you to take up to 10 days of unpaid leave while your spouse is on leave from deployment during a military conflict.
• “Stress Leave” in California – Are workers entitled toit? – Article by our California employment law attorneys.
• Workplace breastfeeding laws and required lactation and storage accommodations – Article by our California employment law attorneys.

Legal References:

1. See, for example, Cal. Gov’t Code 12945.1, 12945.2, and 19702.3. CFRA is also known as the Moore-Brown-Roberti Family Rights Act. See Senate Bill 1383. See also Cal. Gov’t Code 12945.2b3, Cal. Code Regs. Tit 2, 11087d.
2. See Cal Gov’t Code 12945.2 and Cal. Code Regs. Tit 2, 11087. See Senate Bill 1383. Assembly Bill 1041.
3. Same.
4. Same.
5. See Cal. Gov’t Code 12945.1, 12945.2, and 19702.3.
6. See California Family Rights Act Brochure, Department of Fair Employment and Housing. See, for example, Bareno v. San Diego Community College Dist. ( Court of Appeal of California, Fourth Appellate District, Division One, 2017)7 Cal. App. 5th 546.
7. See, for example, Moore v. Regents of University of California ( Court of Appeal of California, Fourth Appellate District, Division One , 2016) 248 Cal. App. 4th 216 .
8. Cal. Gov’t Code 12945.2.
9. See also, for example, Avila v. Continental Airlines, Inc. (Court of Appeal of California, Second Appellate District, Division Five, 2008) 165 Cal. App. 4th 1237. See, for example, Rogers v. County of Los Angeles ( Court of Appeal of California, Second Appellate District, Division Two, 2011 ) 198 Cal. App. 4th 480 . Family and Medical Leave Act, Wage and Hour Division, U.S. Department of Labor. 2 CCR 11042.