FAMILY MEDICAL LEAVE ACT


The Family Medical Leave Act (FMLA) and its California counterpart, the California Family Rights Leave Act (CFRA) allow employees to miss work due to serious medical conditions. CFRA/FMLA leave is not available to all employees. Merely determining if an employee is entitled to CFRA/FMLA leave may involve weighing of factual and legal issues only an experienced FMLA lawyer can provide guidance on. Employees wondering about their CFRA/FMLA rights, or whether they should have been fired from a job due to a serious medical condition are best advised to call 1-661-412-9600 in order to speak to our experienced CFRA/FMLA Bakersfield lawyers.


The key entitlements to CFRA/FMLA leave include:

  • Being employed by an employer with 50 or more
    full-time employees in a 75-mile radius

  • Working 1,250 or more hours for the employer within the last 12 months

  • Suffering a serious medical condition which might be an ongoing condition, or may be a condition for which a certain number of doctor’s visits were made

employee rights lawyer

CFRA/FMLA leave is up to 12 weeks in a year’s time. The leave can be all at once, or intermittent if a healthcare provider has determined intermittent leave is appropriate. Intermittent leaves of an unpredictable, not scheduled manner may pose difficulties for the employer which lead to defenses in CFRA/FMLA litigation. CFRA/FMLA leaves can be for an employee’s own serious health conditions, or the health conditions of their children, parents, and certain other relatives. If a CFRA/FMLA leave is taken to care for another the employee must be actually caring for the family member. Unfortunately the CFRA/FMLA statutes do not cover employees merely waiting by a bedside in a hospital, or providing moral support during trying times of family illness. There is considerable overlap between CFRA/FMLA leaves and other legally required leaves of absence at work. California employee laws separately protect cancer, disability, pregnancy leaves, and workers compensation, which can be for longer periods than the 12 weeks permitted by the CFRA/FMLA.



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DENIED FMLA

Denials of FMLA leave may lead wrongful termination lawsuits. If an employer has denied a CFRA/FMLA leave, but the employee is still employed the question becomes can the employee continue to work given the denial? Important decisions about whether a denial of CFRA/FMLA rights justifies an employee quitting their job should only be made in consultation with an experienced CFRA/FMLA attorney. One question that often comes up is whether the employer was on notice, in the first place, that the employee wanted CFRA/FMLA leave. Xin Liu v. Amway Corp. (9th Cir. 2003) 347 F.3d 1125, 1134 states, “It is the employer's responsibility to determine when FMLA leave is appropriate, to inquire as to specific facts to make that determination, and to inform the employee of his or her entitlements. Bailey v. Southwest Gas Co., 275 F.3d 1181, 1185 (9th Cir.2002). DOL regulations state that ‘the employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.’ 29 C.F.R. § 825.302.”

employee rights lawyer

Bachelder v. America West Airlines, Inc. (9th Cir. 2001) 259 F.3d 1112, 1130–31 states:

It is the employer's responsibility, not the employee's, to determine whether a leave request is likely to be covered by the Act. Employees must notify their employers in advance when they plan to take foreseeable leave for reasons covered by the Act, see 29 U.S.C. § 2612(e), and as soon as practicable when absences are not foreseeable. See 29 C.F.R. § 825.303(a). Employees need only notify their employers that they will be absent under circumstances which indicate that the FMLA might apply: The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed [for a qualifying reason]. The employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken. In the case of medical conditions, the employer may find it *1131 necessary to inquire further to determine if the leave is because of a serious health condition and may request medical certification to support the need for such leave. 29 C.F.R. § 825.302; see also Price, 117 F.3d at 1026 (“The FMLA does not require that an employee give notice of a desire to invoke the FMLA. Rather, it requires that the employee give notice of need for FMLA leave.”) (emphasis in original); Manuel v. Westlake Polymers Corp., 66 F.3d 758, 761–62 (5th Cir.1995). In short, the employer is responsible, having been notified of the reason for an employee's absence, for being aware that the absence may qualify for FMLA protection. Title 2 of the California Code of Regulations § 11091 requires employers to designate leaves as CFRA leaves. In the event of advanced notice the employee does not have to mention CFRA or FMLA. This section also allows employers to inquire further whether an employee is requesting CFRA leave. If the employer doubts a medical note suffices there are procedures for the employer to obtain additional medical notes which include giving an employee fifteen days to obtain a better certification. Bareno v. San Diego, 7 Cal.App.5th 546, 555 (2017) repeated the above and affirmed Avila v. Continental, 165 Cal.App.4th 1237, 1255 (2008) in holding the question of the sufficiency of a CFRA certification is a question of fact. Also see Moore v. Regents, 248 Cal.App.4th 216, 250-251 (2016) which holds much of the same and indicates the employer has the burden of demonstrating they provided the employee with their rules about how CFRA leave requests are to be handled. Moore also held, at 253 a failure to notify an employee of its rights under CFRA can constitute interference with CFRA.



FAMILY MEDICAL LEAVE LAWYER

family medical leave lawyer CFRA/FMLA attorneys should be used if an employee has been fired from their job due to a CFRA/FMLA leave. This might occur when the employee is not reinstated to their job, or they are not given a comparable position. If an employer tires of the employee requesting CFRA/FMLA leave and fires the employee consultation with an experienced employee lawyer is a must. If an employee wants to quit because their employer is refusing their CFRA/FMLA requests, a family medical leave lawyer should be contacted.

Our CFRA/FMLA lawyers are only paid when and if we collect money from the employer. In addition we advance all litigation costs such as court filing fees, depositions, mediation fees, subpoena fees, jury fees, and court reporting fees at trial. If we have to go all the way through trial we can make a motion for attorney fees if we win. The CFRA allows employees to prove damages for lost wages, costs of re-employment, emotional distress, and punitive damages. Lost wages include both back and front pay. FMLA is a longer statute of limitation than CFRA, but does not allow damages for emotional injury.

    Our office has obtained numerous settlements on CFRA/FMLA cases for more than $100,000. We have also tried and arbitrated numerous CFRA/FMLA cases.

    Some of our more notable CFRA/FMLA cases include:
  • $539,000 in a won binding arbitration for termination due to CFRA/FMLA leave
  • $200,000 settlement for a California Family Rights Act case
  • $153,300 settlement when an employer failed to consider a leave CFRA/FMLA

CFRA/FMLA lawyers are there to help lead an employee down the right path. Many employers assume CFRA/FMLA is the only leave available when other leaves are available. Other employers fail to recognize a CFRA/FMLA leave when they are faced with a situation that triggers such a leave. We have also seen cases where the employer requires greater documentation for a CFRA/FMLA leave than allowed by the law.

Contact our Bakersfield CFRA/FMLA lawyers
at 1-661-412-9600