Q: I HAVE been working for 5 years in Los Angeles for a company that has about 100 employees. I wanted to take a leave of absence from work to care for my sick child. My boss does not want to allow me to take leave and said if I take off, my position will be given to someone else. Is this legal?
A: No, it is not. Your rights are protected under the California Family Rights Act (CFRA). CFRA was established to ensure that employees have the right to take a leave of absence for the following reasons:
– For the employee’s own serious health condition
– For the serious health condition of the employee’s child, parent or spouse
– Birth of a child for purposes of bonding
– Placement of a child in the employee’s family for adoption or foster care
– Serious health condition means illness, injury (including on-the-job injuries), impairment, or physical or mental condition of the employee or a child, parent or spouse of the employee that involves an overnight stay in a hospital, hospice, or residential health care facility, or continuing treatment by a health care provider
California employers, including non-profit religious organizations, are subject to CFRA if they employ 50 or more part-time or full-time employees. Covered employers also include the State of California and any of its political and civil subdivisions, and cities and counties, regardless of the number of employees.
To be eligible for CFRA leave, an employee must be a full-time or part-time employee working in California with more than 12 months (52 weeks) of service with the employer, and have worked at least 1,250 hours in the 12-month period before the date the leave begins. The employee must also work at a location in which the employer has at least 50 employees within 75 miles radius of the employee’s work site.
Employees who qualify for CFRA may be entitled to a total of up to 12 workweeks in a 12 month period. The leave does not need to be taken in one continuous period of time.
An employee must give advance notice to take a CFRA leave. While a verbal notice is sufficient, it is advisable to provide a written notice that the employee needs CFRA qualifying leave. The notice shall state the reason for the leave and its anticipated timing and duration. An employer may require 30 days advance notice before CFRA leave is to begin if the need for the leave is foreseeable. If the leave is an emergency, notice must be give as soon as feasible. The employer must respond to a leave request as soon as possible but no later than ten calendar days after receiving the request.
After granting a CFRA leave, the employer must reinstate the employee to the same or comparable position and provide such a guarantee if requested by the employee. The employer may deny reinstatement of an employee if the position no longer exists, such as in a lay-off. An employer may also deny reinstatement if the employee taking the leave is a key employee (salaried and among the highest paid 10 percent) and the denial of reinstatement is necessary to prevent substantial and grievous economic injury to the operations of the employer. However, the employer must notify the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary as well as give the employee a reasonable opportunity to return to work.
Finally, the employer must continue health care coverage for employees during their CFRA leave. This obligation begins on the date leave first begins. The obligation continues for the duration of the leave(s), up to a maximum of 12 work weeks in a 12-month period.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and employers. He has been selected as a Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum – a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: wage and hour (overtime) litigation, serious personal injuries, wrongful death, insurance claims, and unfair business practices. His law firm is currently class counsel to thousands of employees seeking payment of wages in California courts. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088. Inquiries to his law office are welcome and at no cost.