FREQUENTLY ASKED QUESTIONS

1.      Question: How much leave am I entitled to under the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA)?

Answer: If you are an eligible employee, you are entitled to 12 workweeks or 26 workweeks (under National Defense Authorization Act (NDAA)) of leave during a 12-month period.

 

2.      Question: What are the eligibly requirements to qualify for protected leave under FMLA or CFRA?

Answer: An employee must have: 1) an aggregate of 12 months of County service, which need not be consecutive; 2) worked at least 1,250 hours during the 12-month period immediately preceding the first day of leave; and 3) a qualifying leave reason. 

 

3.      Question: Does Workers’ Compensation leave count against an employee’s FMLA and CFRA leave entitlement?

Answer: In most cases, FMLA and CFRA leave and Workers’ Compensation leave can run concurrently provided the reason for the leave is due to a serious health condition. 

 

4.      Question:  Who is considered a qualifying family member for purposes of FMLA and CFRA leave?

Answer: An employee’s spouse, children (son or daughter) and parents are covered under FMLA and CFRA. In some cases, FMLA provides coverage for Armed Forces Members to receive care by their next of kin.

Additionally, an employee’s domestic partner and domestic partner’s child are covered under CFRA.  The term parent does not include a mother-inlaw or father-in-law.  The term son or daughter does not include individuals age 18 or over unless they are incapable of self-care because of a mental or physical disability that limits one or more of the major life activities as defined in regulations used by the Equal Employment Opportunity Commission (EEOC) under the Americans with Disabilities Act (ADA). 

 

5.      Question:  I have Power of Attorney for my uncle to make his medical decisions.  Would that qualify me for FMLA?

Answer:  No.  Power of Attorney allows you to appoint a person to handle your affairs while you’re unavailable or incapable to do so.  Power of Attorney does not establish a parent-child relationship.

 

6.      Question: We prepare our holiday vacation calendar in advance.  Right now, we are short staffed around the holidays and an employee is requesting FMLA leave to care for her mother’s serious health condition

for 12 weeks beginning the last week of November.  Can we deny her request?

Answer: No.  Employers covered by FMLA are required to grant leave to eligible employees for care for a parent’s serious health condition.  

 

7.      Question: Do the 1,250 hours include paid leave time or other absences from work?

Answer: No. The 1,250 hours include only those hours actually worked for the employer including overtime.  Paid leave (sick, vacation, etc.) and unpaid leave, including FMLA and/or CFRA leave are not included. 

 

8.      Question: An employee has been gone for two weeks and has sent in notes from his doctor stating that he has a serious health condition.  We did not designate the time as FMLA and CFRA when he first went out. 

What do we do?

Answer: The time must be designated as FMLA and CFRA time.  The designation will have to begin from the first day that the employee was absent.  

 

9.      Question:  What is the deadline for submitting a medical certification? Answer: An employee must provide medical certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.

 

10.   Question: How does the FMLA and/or CFRA relate to other laws and union contracts?

Answer: The FMLA grants employees rights that are independent of other laws and union contracts.  If other federal and state laws or a union contract provides a greater benefit than the FMLA and/or CFRA, the employer is obligated to provide the greater benefit to the employee.

 

11.   Question: Is there a minimum duration for CFRA leave taken for baby bonding?

Answer: Yes.  The minimum duration of CFRA leave for baby bonding is two weeks.  However, employees are entitled to take CFRA leave for less than two weeks on two separate occasions only unless the department has developed a policy that allows CFRA baby bonding leave to be taken in sorter increments.  

 

12.   Question: We have an employee that has a 34-year old daughter with a serious health condition.  Will this child qualify the employee for FMLA and CFRA leave even though they are over 18?

Answer: Only if the son or daughter has a mental or physical disability.  A son or daughter is a qualifying family member for FMLA purposes if they are under 18 or individuals age 18 or over that are incapable of self-care because of a mental or physical disability that limits one or more of the major life activities as those terms are defined in regulations used by the Equal Employment Opportunity Commission (EEOC) under the

Americans with Disabilities Act (ADA). 

 

13.   Question: How much leave must an employer provide for pregnancy?  Answer: In accordance with the Pregnancy Disability Leave (PDL) Law, an employer must provide up to four months disability leave for pregnant women who are disabled due to pregnancy, childbirth, or a related medical condition.  

 

14.   Question: Do pregnant employees have to be disabled to qualify for PDL? 

Answer: To qualify for PDL, an employee must be “disabled by pregnancy,” which means that a health care provider must certify that the employee’s pregnancy or a related medical condition makes her unable to perform one or more of the essential functions of her job, or to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to others.  

 

15.   Question: We have an employee who shows up late every day without calling in and says he cannot be disciplined because he is on intermittent FMLA leave. Is that true?

Answer:  No. While on FMLA and/or CFRA, employees are required to adhere to their departmental call-in policies, just as other employees in similar situations, unless extraordinary circumstances (such as incapacity) prevented the employee from calling in.

 

16.   Question:  Are student workers and temporary employees covered by FMLA and/or CFRA?

Answer:  Yes.  As long as an employee-employer relationship exists, FMLA and/or CFRA leave is available to students and temporary employees provided they meet the eligibility requirements of 12 months of service and 1,250 hours worked in the preceding 12 months.

 

17.   Question:  We have a part-time employee in our department who also works part-time in another County department.  He wishes to take FMLA/CFRA leave, but does not have 1,250 hours in our department. 

Do we have to grant him FMLA/CFRA leave?

Answer: The County is considered one employer for FMLA/CFRA purposes.  Therefore, all hours worked in both departments must be considered when determining the employee’s eligibility.  If the employee has a combined 1,250 hours worked, he would be eligible and entitled to FMLA/CFRA leave.  

 

18.   Question: I was told that our worksite is excluded from FMLA since we do not have 50 employees.  Is that true?

Answer: No.  All County employees are eligible for FMLA/CFRA regardless of the number of employees at individual worksites.     

 

19.   Question: We have an employee who has requested FMLA/CFRA leave to care for an exchange student residing with them who has a serious health condition as defined by the FMLA/CFRA.  Is this a qualifying event?

Answer: An employee who is responsible for the day-to-day responsibilities to care for and financially support an exchange student would be considered “in loco parentis” to the student during the time the student resides with the employee.  Therefore, the employee would qualify for FMLA leave if the exchange student develops a serious health condition.  However, FMLA/CFRA leave applies only to children under age 18 unless there is a physical or mental disability making the student incapable of self-care as defined by ADA. Reasonable documentation may be required to confirm relationship, which includes but is not limited to, the employee’s statement. 

 

20.   Question:  If both parents (married or unmarried) work for the County, how many workweeks can they take to care for their newborn?

Answer: Each parent would get 12 workweeks to care for their newborn.  

 

21.   Question:  One of our employees recently married and is requesting FMLA leave to bond with her new stepchild.  Is this an FMLA/CFRA qualifying reason?

Answer: FMLA/CFRA leave for baby bonding would only be available if the employee is legally adopting the stepchild.  However, if the child resides with the employee and develops a serious health condition, the employee would be entitled to FMLA/CFRA leave to care for her stepchild.

 

22.   Question: Can an employee take FMLA and PDL leave before the actual birth or placement of a child?

Answer: Yes.  An expectant mother can take FMLA and PDL leave for prenatal care or if her condition prevents her from performing one or more of the essential functions of her job.  Adoptive parents may also use FMLA/CFRA time to attend hearings, etc. when adopting a child.

 

23.   Question:  Can an employee take FMLA and CFRA leave for placement of a child for adoption or foster care?

Answer: Yes.  FMLA and CFRA leave can be taken if the absence is necessary for the placement of a child for adoption or foster care. For example, the adoptive or foster parents may be required to attend counseling sessions, appear in court, consult with attorneys or physicians, or submit to physical examinations.

 

24.   Question: We have an employee who wishes to take leave to care for a domestic partner.  Are we required to grant the leave?

Answer:  Yes, under County Ordinance and the California Family Rights Act (CFRA) the County would be required to grant an employee leave to care for his or her domestic partner or domestic partner’s child.

 

25.   Question: Does the medical certification have to state that the employee cannot perform all the essential functions of his or her job or can it be only one of the functions?  If it is only one function the employee cannot perform, do we have to grant FMLA/CFRA leave if we make “reasonable accommodations” for the employee?

Answer:  The DOL regulations state that an employee is considered unable to perform the functions of his or her position if the employee cannot perform one or more of the essential functions of the job held by the employee at the time the FMLA/CFRA leave is requested.  FMLA/CFRA must be granted, if the employee meets the eligibility requirements, without regard to “reasonable accommodation.”  The DOL has stated that “reasonable accommodation” is irrelevant for purposes of the FMLA.

 

26.   Question:  Can an employee take intermittent leave for baby bonding time? 

Answer: With some limitations, intermittent leave may be taken for baby bonding time.  Any leave taken shall be concluded within one year of the birth or placement of the child with the employee.   Under FMLA and CFRA, intermittent leave for baby bonding may be taken in increments of less than two weeks on two occasions   or a reduced work schedule can be taken only if management agrees.  

 

27.   Question:  What is the employee’s responsibility when taking intermittent FMLA leave for medical treatments?  

Answer:  In passing FMLA, the U.S. Congress stated that the purpose of the Act was to be accomplished, “in a manner that accommodates the legitimate interest of the employers.”  Employees are required to consult with employers prior to scheduling of planned medical treatment where intermittent FMLA leave will be used in order to schedule such treatment, if possible, so that it will not unduly disrupt the employer’s operation.  

 

In many cases, employees on flexible schedules will be able to schedule such treatments on their regular day off (RDO).If treatment is  required more frequently, or if it is for a family member and it cannot be postponed until the RDO, the time off must be approved.  In cases like these, management should work with employees to try to arrive at an arrangement that is beneficial to both.  This might mean placing an employee temporarily on a flexible schedule, changing shifts, part-time work, etc.

 

28.   Question: Is there a limit to the number of times an employee can take FMLA leave in the 12-month period?

Answer:  No.  The only limit is the maximum entitlement of 12 workweeks or 26 workweeks (under NDAA) in a 12-month period. 

 

29.   Question:  A number of employees have told me that another employee currently on FMLA leave is not truly sick.  Can I cancel the employee’s FMLA leave and order the employee back to work?

Answer:  No. The Department’s designation decision must be based only on information received from the employee or the employee’s spokesperson (if the employee is incapacitated).  If the Department received information that casts doubt upon the continuing validity of the medical condition the Department may request medical re-certification or arrange a second or third medical opinion at County expense. (No second or third opinion on medical re-certification may be required).

 

30.   Question:  Can managers and supervisors be held individually liable for an FMLA/CFRA violation?

Answer: Although the courts have come to different conclusions, a significant number have held that managers and supervisors acting on behalf of a public employer can be held individually liable for any violations of FMLA/CFRA.  That is why it is important to refer FMLA/CFRA requests and inquiries to the Department’s Human Resources Office or FMLA/CFRA Coordinator. 

 

31.   Question: We have posted the FMLA notice in our Human Resources

Office.  Is this sufficient?

Answer:  Both the FMLA and the combined CFRA/PDL notices must be prominently posted in conspicuous locations such as employee break rooms or the employee bulletin boards, etc.

 

32.   Question: I have an employee that wants to use his own benefit time for the first six weeks he is out recovering from surgery.  He wants to delay the start of FMLA/CFRA so the County will cover his benefits after he runs out of time.  Can I do that? 

Answer:  No, you cannot delay the start of their FMLA/CFRA leave for that reason.  The FMLA/CFRA begins the first day the employee goes out for a serious health condition regardless of whether they are using their own time or not.

 

33.   Question: Are health benefits covered under the FMLA/CFRA or PDL? Answer: An employee’s group medical and dental coverage and Health Care Spending Account (HCSA) must be continued on the same basis and under the same conditions as were applicable prior to the commencement of the leave.

 

Group medical and dental coverage and HCSA are continued when the employee is designated a leave of absence under FMLA, FMLA/CFRA, FMLA/PDL, PDL or CFRA.

 

34.   Question: Our employee has utilized four months of PDL leave prior to giving birth and her doctor says that a continuation of her leave is medically necessary. What can I do?

Answer:  Under this circumstance the employer may, but is not required to, allow the employee to utilize CFRA leave prior to the birth of her child.  In this circumstance, the employer also has an obligation to engage in the interactive process with respect to providing leave as a reasonable accommodation under the ADA and FEHA. A Medical Leave of Absence may be offered under ADAA and CFRA may be reserved for bonding with a newborn.  

 

35.   Question: Are Group Health benefits covered for Baby Bonding after a

PDL leave?                             

Answer:   An employer is required to maintain group health coverage for up to 12 workweeks during the employee’s CFRA maternal baby bonding (intermittent or continuous).   The employee’s entitlement to bond with her newborn child expires 12 months after the child’s date of birth.

 

36.   Question: The State of California, Employment Development Department offers a Paid Family Leave. What paid benefits am I entitled to receive? Answer:  County employees do not pay into the State Disability Insurance program; therefore, employees are not covered by the Paid Family Leave – State Disability Insurance based upon their employment with the County.  However, employees who have been employed by private employers may contact the local Employment Development Department to determine whether they are eligible for benefits due to wages earned from a private employer during the base period.

 

County employees may choose to use their accrued benefit time while   out on a protected leave of absence. 

 

37.   Question: An employee left County service in 2013 after 2 years of employment and then was rehired in 2015 by a different County department. After 8 months of county service in 2015, the employee requests time off for a protected leave of absence under FMLA/CFRA. Is the employee entitled to a protected leave of absence under FMLA/CFRA?

Answer:  The County is considered one employer for purposes of leave entitlement. Therefore, eligibility must be determined by counting all County service. Length of service and hours worked within all departments must be combined for the purpose of determining eligibility. The employee’s break in service was less than seven years; therefore, the 2 years of employment is counted towards the years of service.

 

38.   Question: An employee has submitted a Certification of Health Care Provider form (CHCP) requesting intermittent FMLA and CFRA. The CHCP does not provide sufficient information such as the frequency and duration or the leave start and end dates to make a determination for eligibility. What can I do?

Answer: Send the employee a letter of incomplete packet with a copy of the CHCP, highlighting the sections with the missing information. Communicate with the employee and provide the employee with two opportunities to submit the requested information before denying the request for FMLA and CFRA. If the employee is making a reasonable effort to obtain the necessary information, Departments are encouraged to work with the employee by providing an additional extension.