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Intermittent Leave Under California Law: Your Rights When You Have an Ongoing Medical Condition

Employment4

Medical leave in California involves a complex web of state and federal regulations, in addition to whatever leave policies your individual employer maintains. It is worrisome enough to deal with a serious medical condition on your own, but the situation can become even more stressful if you are worried about losing your job while undergoing treatment.

Luckily for many employees working at mid to large size companies, there are both state and federal laws that give eligible employees job protections/the right to take a certain number of weeks of unpaid leave each year to deal with a serious health condition, either yours or that of certain immediate family members.

But what if you do not require all of your leave at once? Could you, for instance, take half a day of federal leave under the Family and Medical Leave Act (FMLA) or state law leave under the California Family Rights Act (CFRA) leave to go to the doctor? What about taking a day off, as needed, for reoccurring symptoms?

Medical Leave: FMLA vs. CFRA

FMLA is a federal law and provides eligible employees (generally those working full time and who have been employed for 1 year or more) with up to 12 weeks of unpaid leave during a 12-month period. According to the U.S. Department of Labor, an employee may exercise FMLA leave “on an intermittent or reduced schedule basis.” In other words, you do not necessarily have to take all 12 weeks of leave in a single block. An employee may take FMLA leave in several multi-day blocks, or in some cases by reducing their hours worked in a given day.

The employee must, however, give the employer advance notice of their need for intermittent leave and provide appropriate medical documentation of their serious health condition. The employer can also require the employee to schedule such leave or reduced hours to minimize the disruption to its business. And depending on the employer’s benefits policy, the employee may be required to use up any accrued vacation or personal time before taking any FMLA leave.

The CFRA also permits intermittent leave. For serious health conditions, state regulations allow the employee to take leave for such times periods that are medically necessary “as determined by the health care provider of the person with the serious health condition.” But the employer may also limit the minimum period of CFRA leave to “that the employer’s payroll system uses to account for absences or use of leave.”

Special Considerations for Pregnant Employees and Time to Bond with New Child

InBoth CFRA and FMLA provide for leave for pregnant employees, as well as employees welcoming a new child – for parental bonding time. This applies to mothers and fathers – for birth of a child and for placement of adopted or foster care children. Employees looking for parental bonding time may take this time under FMLA within 12 months of the date of birth or 12 months within the placement or adoption of the child (if an absence is required to attend counseling sessions, appear in court, or travel to another country to complete the adoption).

Under the FMLA, the employee must take the time to bond with the child after placement as a continuous block of leave (unless the employer agrees to allow for intermittent leave).

In contract, CFRA does not restrict the circumstances when employees can take “bonding” leave to spend time with their new child. However, the minimum amount of leave that must be taken is two (2) weeks – and all eligible leave must be used within 1 year (12 months) of the child’s birth.

Separately, California law provides for up to four (4) months of Pregnancy Disability Leave (PDL), which may be taken intermittently without restriction.

If you have questions or concerns about whether your employer is complying with the intermittent leave requirements of the FMLA, CFRA, or PDL laws, or believe your rights have been denied or you have been discriminated against due to your medical leave, you should contact a qualified California employment law attorney right away.

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* Cathleen Scott is licensed to practice in Florida only.

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