Employees’ Time Off: The FMLA, CFRA, PDL, and USERRA and What Employees and Employers Need to Know

8 Examples of How Employers Breach Their FMLA Duties

1. Denying FMLA leave despite an employee’s eligibility and prior notice.
2. Dissuading employees from exercising FMLA leave through threats or intimidation.
3. Altering the workplace environment to avoid an employee’s FMLA eligibility, such as transferring employees to reduce the workplace below the 50-employee threshold.
4. Failing to provide employees with a notice of their FMLA rights within five business days of an employee’s request for leave.
5. Using FMLA leave as a reason to withhold promotions or as a negative factor when making other employment decisions.
6. Failing to reinstate the employee to the same or an equivalent position after an FMLA leave.
7. Failing to maintain health benefits, such as health insurance coverage, while the employee is on FMLA leave.
8. Issuing an improper PIP (Performance Improvement Plan) after an FMLA leave.

a) Not all post-FMLA PIPs are improper! An employer may issue a PIP without breaching their FMLA duties if the PIP is based on reasons unrelated to the employee’s FMLA leave.

For example, if an employee leaves their files severely disorganized prior to taking leave, the employer can legally issue a PIP upon their return. The PIP is justified because the employee’s performance shortcomings occurred before they took leave; we received such a phone call with a potential client who turned the company upside down by havingher department completely disorganized to the point no one could ascertain what needed to be done. Upon her return, she received a PIP and wanted to sue her employer  – this is an example of a valid post-FMLA PIP.

The FMLA only applies to eligible employees of covered employers. Those covered employers include:

• Private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current (or the previous) calendar year.
• Public agencies (including federal, state, and local government employers), regardless of the number of employees.
• Local educational agencies (schools) regardless of the number of employees.

What is the FMLA? 

The Family and Medical Leave Act (FMLA) is a federal law that grants eligible employees up to 12 weeks of unpaid leave for qualifying family and medical reasons. A common question is how do employees know if they qualify for this job-protected leave.

Eligible Employees

An employee is only eligible for unpaid leave under the FMLA if all of the following apply:

• Months: The employee works for a covered employer for at least 12 months (not necessarily consecutive).
• Hours: The employee works at least 1,250 hours during the 12 months immediately preceding the start of his or her FMLA leave.
• Radius: The employee works at a location where the employer has at least 50 employees within 75 miles of that location.

If you have any questions, feel free to contact one of our attorneys at (800) 637 6178.

What Does the FMLA Guarantee for Employees?

The FMLA has two significant guarantees for employees:

1. The employer must continue to pay for the employee’s group health insurance coverage under the same conditions as if the employee hadn’t taken leave.
2. Upon return, the employee must be restored to their original job, or to an equivalent job with identical pay, benefits, responsibilities, and working conditions.

How Does An Employee Obtain and Qualify For FMLA Leave?

Eligible employees may take up to 12 unpaid weeks of leave during a 12-month span, under the following conditions:

• The employee must care for a newborn (or adopted) child.
  • Leave is usually continuous, unless the employer states otherwise.
  • Caveat: The mother and father are entitled to 12 weeks of leave each under the FMLA. However, if both parents work for the same employer, the employer may limit their combined FMLA leave to 12 weeks.
• The employee must care for his or her spouse, child, or parent with a serious health condition.
  • The employee may take up to 26 weeks of military caregiver leave during a single 12-month period if the employee is the child, parent, spouse, or next of kin of either:
    • A current service member with a serious injury or illness
    • A covered veteran with a serious injury or illness
  • The employee may need to provide certification from the health care provider of his or her family member to his or her employer.
• The employee has a serious health condition that makes the employee unable to perform his or her job.
• Qualifying exigency: this fancy legal term simply denotes a non-medical situation when an employee’s spouse, child, or parent is under an active call to duty, currently deployed, or wrapped up in immediate post-deployment events.
  • For example, if the military provides the family member 7 days’ notice before deploying, the employee can take leave immediately, lasting up to 7 calendar days from the date of notification.
  • During deployment: when the family member is actively deployed to a foreign country, the employee can take leave intermittently or in a continuous block to handle ongoing issues, such as managing non-routine childcare crises or attending deployment-related counseling.

If you have any questions, contact us at (800) 637 6178.

How Does An Employee Request FMLA Leave?

To request or ascertain whether they qualify for FMLA leave, employees must communicate with their employer about their leave’s requirements; covered employers are then obligated to provide employees with general information about the FMLA. Employers must respond individually to employees who request leave with specific notices and provide FMLA leave where requirements are met.

How/When Can Employees Take FMLA Leave?

The employer determines the method to define the calendar year; this avoids “stacking.” Stacking is where an employee may try to “stack” 24 consecutive weeks (12 weeks of leave at the end of the calendar year and another 12 weeks to begin the new year).

Employers most commonly use the “rolling backward” method, where the 12-month period begins from the day the employee uses any FMLA leave. For example, if an employee takes 12 weeks of leave from October 2026 to December 2026, he or she cannot take any additional leave in January of 2027.

The USERRA

Under USERRA (Uniformed Services Employment and Reemployment Rights Act), an employee who leaves for military service cannot be penalized in their FMLA eligibility for the time he or she is gone. USERRA requires the employer to credit the employee with the hours he or she would have worked had he or she not been called to serve.

Let’s now examine the California Family Rights Act (“CFRA,”) which is California’s Act to assist employees with time off for medical and family-related reasons.

California Family Rights Act (CFRA)

Similar in nature to the FMLA, the California Family Rights Act (CFRA) provides eligible employees with job-protected, unpaid leave for specific medical and family-related reasons. The CFRA often provides broader protections than federal law.

Which Employers Does CFRA Apply To?

The CFRA only applies to eligible employees of covered employers. Those covered employers include:

• Private-sector employers with 5 or more employees
• Public agencies in the state of California, regardless of the number of employees.
• Local educational agencies (schools) regardless of the number of employees.

As you can ascertain, the CFRA is more protective than the FMLA, as 50 employees are not required for an employee to be eligible under the CFRA.

Eligible Employees

An employee is only eligible for unpaid leave under the CFRA if all of the following apply:

• Months: The employee works for a covered employer for more than 12 months (not necessarily consecutive).
• Hours: The employee worked at least 1,250 hours in the 12 months immediately preceding the leave.
• Radius: none.

If you have any questions, contact on of our attorneys at (800) 637 6178.

When Can An Employee Take CFRA Leave?

• For child bonding (caring for the child) after the employee’s birth/recovery period is over (following a pregnancy). 
  • This period explicitly follows the birth/recovery period because pregnancy is covered by a different type of leave in California, Pregnancy Disability Leave (PDL), which is expounded upon later in the article.
• To care for an adopted child or a child put into foster care
• For a serious health condition, or to care for a family member with a serious health condition
  • Voluntary or cosmetic treatments are not considered “serious health conditions,” unless there are unexpected complications.
• Qualifying exigency

What Must Employers Guarantee To Their Employees in California Under CFRA Leave?

• Employers must continue to pay for the employee’s group health care plan during CFRA leave for up to 12 weeks, under the same conditions as if the employee had continued working.
• Employers are forbidden from interfering with, or denying CFRA rights.
• Employers are forbidden from retaliating against employees for exercising their CFRA rights.

What Does the CFRA Guarantee for Employees?

• A broader definition of “family members” to include grandparents, grandchildren, siblings, parents-in-law, and registered domestic partners.
• Concurrent unpaid leave with FMLA, when both apply.
• Does not cover leave for pregnancy disability.
• Continued group health insurance coverage
• Upon return, the employee must be restored to their original job, or to an equivalent job with identical pay, benefits, responsibilities, and working conditions.

Now that we understand the CFRA and FMLA, let’s compare them for the California employees reading this blog.

How Is The CFRA Different From The FMLA?

The CFRA allows employees to take leave to care for people outside their immediate family, while the FMLA strictly limits the definition of “family members” (see table below). Furthermore, the CFRA’s much lower employee threshold and the absence of a radius requirement allow more employees to be eligible for unpaid, job-protected leave.

	CFRA (California)	FMLA (Federal)
Family Members Included	Spouses, Parents, Children, Siblings, Grandparents, Grandchildren, Parents-in-law, Registered Domestic Partners	Spouses, Parents, Children
Employee Threshold	5 employees	50 employees
Radius	None	75 miles
Pregnancy as a “Serious Health Condition”	Excluded (see California’s Pregnancy Disability Leave below)	Included

California Pregnancy Disability Leave

8 Things to Know about the PDL in California:

1. PDL is a different form of unpaid, job-protected leave under the California Fair Employment and Housing Act (FEHA). 
2. PDL applies to employees who are disabled due to pregnancy, childbirth, or other related medical circumstances.
3. “Disabled by pregnancy” includes but is not limited to the following conditions as a result of childbirth: sickness, doctor-ordered bed rest, depression, and recovery.
4. PDL covers the medical and physical aspects of the pregnancy, while CFRA covers the parenting and bonding side.
5. PDL applies to employers with at least 5 employees (and does not require a minimum work period).
6. During PDL, employers must continue to pay for group health coverage under the same conditions as if the employee hadn’t taken PDL.
7. PDL and CFRA leave do not run concurrently. An employee may seek four months of PDL and a subsequent 12 weeks of CFRA leave for bonding with their child.
8. Employers may require medical certification from the employee’s healthcare provider to verify the qualification for PDL.

Unlike the FMLA — where eligible employees are entitled to up to 12 weeks of job-protected leave for pregnancy, childbirth, and bonding (combined) — pregnancy is not covered under the CFRA. Instead, a pregnant employee in California is entitled to Pregnancy Disability Leave (PDL) of up to 4 months (intermittent or continuous), under Cal Gov Code § 12945.

Final Thoughts

If you’re unsure whether you qualify for leave under the CFRA, consult an experienced employment lawyer in California. 

We are happy to help you at San Diego Biz Law; call (619) 793-4827 Monday to Thursday from 10am to 4pm. A qualified attorney can review your situation and clarify your rights.