California Follows Most of Federal Family and Medical Leave Act

Susan R. Mendelsohn

After the federal Family and Medical Leave Act became effective in August 1993, California employers of 50 or more employees faced a maze of overlapping federal and state provisions on family leave. Passage of AB 1460 has now brought the California Family Rights Act more closely into line with the federal Act, with pregnancy disability leave remaining a notable area of difference.

Susan Mendelsohn is a senior associate in the Labor and Employment Law Group of Pillsbury Madison & Sutro, based in San Francisco. She advises large and small corporate clients as well as non-profit organizations on employment matters, including wage and hour standards, leave policies, wrongful termination, discrimination, employee privacy, and drugs in the workplace.

The state legislature has enacted, and the Governor has signed, a bill that revises California's Family Rights Act ("Cal-FMLA") to substantially conform it to the federal Family and Medical Leave Act (FMLA). As "urgency legislation," AB 1460 took effect immediately on October 5, 1993. The Department of Fair Employment and Housing is beginning to write interpretive regulations and is expected to issue drafts within a few months.

Key Provisions

• The obligation to offer family and medical leave applies to employers with 50 or more employees.
• The revised Cal-FMLA gives eligible employees the right to take up to 12 weeks of unpaid family or medical leave in a 12-month period for the care of a seriously ill child, spouse, or parent, for the birth or adoption of a child, or for the employee's own serious health condition that is not pregnancy-related. Generally, FMLA and Cal-FMLA leaves are to run concurrently. The new law eliminates the complication of coordinating California's old "four months off in two years" provision with the FMLA.
• California's pregnancy disability leave law, however, still gives employees who are disabled on account of pregnancy, childbirth, or related medical condition the right to up to four months of leave. This pregnancy disability leave does not count against the 12 weeks of leave available under Cal-FMLA. After the employee is released from disability, she is eligible for up to 12 weeks of additional family and medical leave to care for the newborn.
• Employees on medical or family care leave are entitled to continuation of medical coverage under the same terms as if they were still working. If returning within 12 weeks from this leave, they generally have the right of reinstatement to their former or equivalent positions.

Changes Made in Cal-FMLA

The new bill, AB 1460, makes changes in almost every major area of Cal-FMLA. In particular:

Employee Eligibility. Under both federal and California law, employees are now eligible to take family and medical leave (other than pregnancy disability leave) if they have been employed for more than 12 months and have at least 1,250 hours of service. Previously, the state law covered employees if they had 12 months of service and were eligible for at least one other benefit. Employers are not required to allow such leave to persons working in a location with fewer than 50 employees within a 75-mile radius. Thus, a vegetable producer with 70 workers in Santa Maria and 35 in Blythe would have to provide the leave to the employees in Santa Maria, but not to those in Blyth. Employees continue to be eligible for pregnancy disability leave under the Fair Employment and Housing Act, regardless of length of service or number of hours worked, as long as the employer has 5 or more employees.

Purposes of Leave. California law is broadened to permit leaves for the employee's own serious health condition, in addition to previous provisions for the care of a seriously ill child, spouse or parent, and for the birth or adoption of a child.

Duration of Leave. Federal and state laws now both provide for up to 12 weeks of family and medical leave in a 12-month period in most situations. But they differ somewhat in provisions for intermittent leave and for pregnancy disability leave. Under Cal-FMLA, leave can be taken in increments as small as one day; FMLA, however, allows for intermittent leave in the shortest unit of time (e.g., one hour or less) that the employer's payroll system uses in accounting for absences or use of leave. Since FMLA is more generous, employers in California will be required to comply with the federal provisions.

Benefits. Like FMLA, Cal-FMLA requires employers to continue health insurance benefits during the leave under the same conditions as when the employee was working. The employer may recover insurance premiums paid for a worker who fails to return from leave, unless the failure to return is caused by a serious health condition that would entitle the employee to family or medical leave, or by circumstances beyond the employee's control.

Proof of Need. Both federal and state law permit the employer to require the employee to provide medical certification of the need for leave. Disclosure of the following can be requested:

1. The date on which the serious health condition began.
2. The probable duration of the condition.
3. A statement that the serious health condition warrants the employee's participation to provide care for the family member during the period of treatment or supervision.
4. An estimate of the amount of time the employee needs to care for a family member. For the employee's own serious health condition, the employer can require a statement that the employee is unable to perform the functions of his or her job.

Unlike FMLA, the Cal-FMLA does not allow the employer to require the employee to give any detailed medical facts (such as a specific diagnosis). Since the Cal-FMLA provision offers more protection for the employee, it will prevail.

Under both Acts, the employer may require the employee to obtain a recertification regarding the need for a family or medical leave. The employer may require the opinion of a second health care provider designated or approved by, and at the expense of, the employer. If the second opinion differs from the original one, the employer can require the employee to obtain an opinion from a third health care provider, whose opinion shall be binding. The employer can also require a fitness for work certification from employees who return from a medical leave of absence.

Special Rules for Pregnancy Disabilities

Cal-FMLA specifically excludes pregnancy disability from the "serious health conditions" for which employers are obligated to provide family and medical leave. The Cal-FMLA provisions are to be construed as separate and distinct from the pregnancy provisions of the Fair Employment and Housing Act (FEHA), which give employees the right to take up to 4 months off if disabled on account of pregnancy, childbirth or related medical condition.

Therefore, a pregnant employee may be able to take a total of 7 months off-4 months of pregnancy disability leave plus 12 weeks of family and medical care leave-in a 12-month period. However, in most normal pregnancies, the period of disability will probably be less than four months. The provisions for health care coverage while on a pregnancy disability and related child care leave are complex. In brief, the employer is required to furnish company-provided health care benefits for up to 12 weeks of a pregnancy-related disability, based on FMLA. After the employee is released to return to work, she will have the right to an additional 12 weeks of child care leave under Cal-FMLA, during which the employer is required to furnish her with company provided benefits.

Conclusion

Employers are encouraged to review their leave policies for consistency with the federal and revised California laws. Additional clarification of employee rights and employer responsibilities in this area will be forthcoming in regulations to be developed by DFEH, and some provisions of the Act may be subject to legal challenge.

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