Los Angeles Family & Medical Leave Discrimination Attorney

The California Department of General Services is required by federal law to adhere to the Family and Medical Leave Act administered by the U.S. Department of Labor. This business managing entity is also required to serve the public in accordance with the California Family Rights Act administered by the Department of Fair Employment and Housing. If your rights under these laws were violated, contact a Los Angeles family and medical leave discrimination attorney.

The professional legal team at Park APC is prepared to effectively represent you in a case of medical and family leave discrimination. Whether you were denied qualifying leave from work that you are eligible for or were the victim of retaliatory action at your job for taking or asking for leave, we can help.

What Is the Family and Medical Leave Act and California Family Rights Act?

The Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) are federal and state statutes regarding employee leave that grants qualifying workers of employers who are covered to take leave that is unpaid with the assurance their job position is protected.

Eligible workers are entitled to a maximum of twelve workweeks of unpaid and job-protected leave each calendar year for qualifying medical and family circumstances. The FMLA also allows for the entitlement of special leave for eligible employees, which permits them to take up to 26 weeks of leave during a twelve-month period to care for a covered military serviceman.

These laws additionally allow for employees receiving Disability Insurance (DI) or Paid Family Leave (PFL) benefits to have their job protected. Receiving benefits from DI/PFL alone does not provide job protection, only wage replacement aid. These are separate and non-impacting on federal or state leave laws, such as the FMLA or CFRA.

Your job may be otherwise protected by the FMLA, CFRA, or other employee leave laws if the reason for leave is deemed necessary according to the guidelines described within the Family and Medical Leave Act. Additionally, covered corporations may have your employer require you to take FMLA/CFRA leave even while receiving benefits from Disability Insurance or Paid Family Leave.

What Qualifies an Employee to be Eligible for Leave Entitled Under the FMLA/CFRA?

Any employee in Los Angeles who has worked for at least one year, in addition to working for 1,250 hours over the previous twelve months, under the same California-based employer is eligible. The employee should give their employer at least thirty days’ notice for any applicable leave when possible. The state’s Department of General Services is required to allow qualifying employees necessary unpaid leave along with the assurance of protected employment for the following reasons:

• Taking medical leave for your own significant health condition or injury that affects your capability to perform job duties effectively.
• Needing to provide care for a family member dealing with a serious illness or condition.
• Leave is needed for the care of the employee’s child, including childbirth and bonding time with a new child, placement for adoption, or foster care.
• Incapacitation due to pregnancy or prenatal medical care.
• Participation in or exigencies related to a qualifying event arising from the employee’s military family member who is on active duty, or has been notified of an impending call/order to active duty, is deployed to a foreign country, or is otherwise stationed elsewhere in support of a contingency operation.

How Do I Know If My Family Member Is Included Under the Rights of Family Medical Leave?

Qualifying family members that an eligible employee can take leave to care for or in accordance with military deployment under the CFRA include children of any age, a grandchild, a spouse or domestic partner, a sibling, a parent, or a grandparent.

The child may biologically be the employee’s or the employee’s domestic partner’s child or another individual to whom the employee acts in loco parentis. Additionally, adopted or foster children, a stepchild, or legal ward of the employee, their domestic partner, or another person to whom the employee acts as parent/guardian in their stead are also included.

A “parent” similarly can include a foster or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or another individual who acted as the employee’s guardian during childhood in the stead of their biological parent.

What Health Conditions Are Considered Significant and Eligible for FMLA Leave?

The employee or the family member they are to care for must be suffering from or have serious health conditions such as an illness, disorder, injury, or a physical or mental disability that necessitates inpatient care or requires ongoing treatment from a healthcare provider.

Qualifying inpatient care may be an overnight stay at a hospital or other medical treatment facility. Continuous medical care that is eligible under the FMLA includes the need for multiple appointments with a healthcare provider or a single appointment that is followed up by ongoing care and/or check-ups, such as for the prescription of medication.

Serious health conditions that qualify for the rights of the FMLA/CFRA include any condition that incapacitates the afflicted person, such as being rendered unable to attend work or school for more than three consecutive days and needing continuous healthcare treatment, as well as any chronic condition that results in occasional periods of incapacitation that requires medical attention and care at least twice a year.

Health conditions and obligations that involve pregnancy/prenatal matters are also considered eligible for leave, including medical appointments, incapacitation due to morning sickness/general nausea or vomiting, and bed rest mandated by a healthcare provider.

Other eligible conditions include qualifying mental health issues and illnesses/disorders, substance abuse, grief that disrupts daily functioning, monthly therapy appointments, organ donation, and more. If you’re not sure that your or your family member’s condition qualifies for FMLA leave, speaking with a Los Angeles employment lawyer can let you know after reviewing the details of your situation.

Do I Need to Prove to My Employer the Health Condition Is Real and Serious?

Your employer may request or require medical certification issued by a healthcare provider for any leave regarding a serious health condition. They should typically request certification when the employee gives their notice for necessary leave or within five business days afterward.

For unforeseen leave, they should request certification within five days of the leave’s commencement. They may request certification at a later date if they have reason to question the length or relevance of the leave.

Employers must allow you up to fifteen calendar days to acquire the certification. No employee is required to provide their employer with their medical records, but the certification may include medical facts to establish the existence of a significant health condition.

If an employer claims the medical certification is incomplete or insufficient, they must provide the employee with a written statement containing the additional information that’s needed and allow them at least seven calendar days, or a reasonable opportunity under the particular circumstances, to get the certification corrected. They may require a second or even third medical opinion at their own expense if they have reason to doubt the certification’s validity.

Contact between an employer and the employee’s healthcare provider for the authentication or clarification of medical certification is only allowed if the action is in accordance with the privacy policies and regulations of the Health Insurance Portability and Accountability Act (HIPAA). To disclose individually identifiable health information to an employer, the employee must supply their healthcare provider with their written authorization to expressly do so.

What Exactly Does Job Protection Mean in California?

Job protection under the guidelines as outlined within the Family and Medical Leave Act and the California Family Rights Act entails that an employee’s job position or role in their workplace environment is secured while they are on covered medical or family-related leave. After a job-protected leave, the eligible worker can expect to be reinstated to the same, or a comparable, employment position to the one they held prior to their leave.

There are exceptions under limited circumstances that are unrelated to your leave, such as company-wide or department layoffs. Additionally, you will not lose, and may indeed accrue, seniority or other work benefits during your leave if your employer allows accrual for other forms of leave that aren’t protected under FMLA/CFRA.

Job protection does not mean your time away from work will be paid leave. However, you may receive pay during your job-protected leave if your employer has prior policies in place under the CFRA or FMLA that allow them to pay employees on eligible leave. Other options to receive payment during your protected leave include using paid time off you’ve accrued or applying for DI/State Disability Insurance (SDI) or PFL.

What Happens If My Boss Can’t Give Me My Old Job Back When I Return?

While your job is protected according to state and federal law, there are some instances where the same role or position you fulfilled prior to a long-term or intermittent period of leave is no longer available. When this occurs, the employer is legally required to reinstate your employment with a job that is nearly identical to your previous position.

An equivalent job according to the FMLA must: offer the same shift availability or general work schedule, not involve a significant increase in geographical distance or commuting time, consist of the same or substantially similar responsibilities, status, and duties in addition to the same overall level of effort, skill, responsibility and authority.

Furthermore, the comparable job role must offer an identical salary, including equivalent premium wages, profit-sharing, overtime and bonus opportunities, or other payments and any unconditional pay increases that transpired during the employee’s FMLA leave.

The equivalent job position offered to the returning employee must also offer identical benefits to what they received within their old job; examples include life, health, and/or disability insurance, sick leave, vacation time, pension plan, educational or other benefits, etc.

Can I Take My Family or Medical Leave Intermittently in CA?

In accordance with the CFRA, California employees are allowed to take leave within intermittent periods and not during one continuous time span if they so wish or the circumstances necessitate such an arrangement.

Under the rights of the FMLA, employees are also granted the opportunity for reduced leave for a single qualifying medical reason that requires it. Reduced leave consists of the employee’s typical weekly or daily work schedule being reduced or modified to allow for intermittent leave that does not entail being completely away from work for segmented blocks of time.

What Counts as Employer Retaliation in FMLA Cases?

Federal and state law prohibits employers from violating or interfering with your legal rights to ask for and/or take FMLA/CFRA leave in addition to forbidding any retaliatory or discriminatory action against you for requesting and/or taking such leave that is eligible according to the mandated guidelines.

It is also unlawful for an employer to display discriminatory or punitive conduct against qualifying workers for job leave in order to care for a family member who’s suffering from a severe health condition.

Employers cannot use an employee’s necessary leave as a negatively influencing factor in any job decisions regarding that worker including hiring, awarding promotions, disciplinary action or termination of employment. The employee’s leave also cannot be counted under policies concerning no-fault attendance.

Can You Terminate an Employee on Medical Leave in California?

No, it is unlawful to fire an employee while they are on medical leave in California because of or influenced by the fact they are on necessary leave that they have the legal right to take. It is required that the FMLA leave does not exceed the allotted duration of time awarded under the rights of the act, which is twelve weeks in most cases.

If the employee does not return to work and/or stays on leave past the end of their yearly allowed FMLA leave, they are no longer eligible or protected under the rights of the FMLA/CFRA. If the employee returns from their leave prior to their FMLA-allowed time running out, it is considered illegal and wrongful termination if they are imminently fired based on their leave after returning.

Examples of Employer Retaliatory Action Against Workers on Leave or Requesting Leave

It is illegal for an employer to interfere with, restrict, or deny an employee to exercise their rights protected under the FMLA. Employers are also prohibited from retaliating against you for taking subsequent action for their restraining conduct, such as filing a complaint or bringing the matter to court.

It also goes unsaid that it is unlawful for any employer to discriminate, harass, or punish an employee for taking or asking for leave. Termination of employment, whether during a worker’s leave or shortly following their return to work, that was motivated or influenced by the employee’s leave is a violation of their rights to job protection under state and federal law.

The following are some examples of employer retaliation for employee FMLA/CFRA leave or subsequent retaliation:

• An employer is refusing/not allowing you to come back to work after taking leave for an injury or a long illness.
• After returning to work, your boss is suddenly, excessively, and/or unwarrantedly criticizing your job performance, your work attendance, or assigns you a performance improvement plan (PIP) that is uncalled for.
• Your employer revokes your sick leave, right to no-fault attendance, or other employee benefits once you return from leave.
• A boss rebuffs and denies an employee their request for FMLA leave to take care of their mother because they don’t personally consider the health condition in question to be “serious enough.” After the worker files a complaint against their employer for not allowing them eligible leave, the employer takes away a promotion they were set to receive.

The same employee proceeds to file an official retaliation claim against their employer, who then threatens to terminate them if they don’t cease taking legal action.

Is Taking FMLA Leave a Protected Activity?

In short, yes, taking FMLA leave is a legally protected activity for employees that are considered eligible under the federal law guidelines as well as the rights offered under the CFRA state statute. It is unlawful and legally contestable for an employer to restrain, discourage, or interfere with any eligible worker requesting to take leave that qualifies under the terms outlined in the FMLA/CFRA.

Furthermore, an employer cannot deny workers acting in accordance with the FMLA: to return to work at their previous job position or one that is comparable, the reinstatement of the job position the employee held prior to taking leave or one that is comparable, the right to not be terminated during qualifying leave or the right to not face retaliatory or discriminatory action upon or shortly following their return to the workplace, including wrongful termination.

If Your Rights to Family or Medical Leave and Non-Retaliation Have Been Violated, Talk to Us

At the law firm of Park APC, our employment law attorneys are educated in and experienced in a variety of legal matters to protect employees and defend their rights within the workplace. We handle and manage cases where clients face wrongful termination, FMLA/CFRA violations, workplace discrimination, sexual harassment, and more. Schedule a consultation with one of our capable employee lawyers today.

Sources:

https://edd.ca.gov/en/disability/faqs-fmla-cfra/

https://www.dgs.ca.gov/OHR/Resources/Page-Content/Office-of-Human-Resources-Resources-List-Folder/Personnel-Operations-Manual/Family-and-Medical-Leave-Act

https://www.workplacejustice.com/retaliation-for-taking-fmla-cfra-leave.html

https://calcivilrights.ca.gov/employment/family-care-medical-leave-guide/

https://www.dol.gov/agencies/whd/fmla/faq