FMLA Attorney in Los Angeles
If you were harassed, retaliated or discriminated against for taking a medical leave of absence under either federal or state law, then you may have cause to sue your employer for damages. The following is an overview of your rights to take a medical leave of absence for informational purposes only and is not intended to replace a professional opinion from a Los Angeles FMLA medical leave attorney specializing in employment law.
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Los Angeles Medical Leave Attorney
California enacted laws that place the financial risk arising from mental or economic injuries due to a violation of medical leave rights on the businesses that produce them. If you are experiencing health issues and need treatment, please speak or meet with one of our attorneys. Our attorneys can help you navigate these rights to ensure that you are not being forced to choose between your doctor’s orders, necessary treatment, and your job.
FMLA is a federal law. It should not be considered in isolation. A California employer must comply with both federal and California law requirements. CFRA is California’s more protective counterpart to the FMLA. This means that you have rights under both FMLA and CFRA. After the 12-week job protected FMLA/CFRA leave, your right to medical leave under the ADA and/or the FEHA kicks in. Additional laws apply to service members and pregnant women.
What is FMLA?
The Family and Medical Leave Act (“FMLA”) is a federal law that provides job protected unpaid leave to an employee who needs to be off work for either of the following reasons: (1) to take care of a “serious health condition” (includes pregnancy related conditions) that makes him or her unable to perform the essential functions of your job; (2) to take care of a family member who has a serious medical condition; (3) for birth of a child or to take care of a child post-birth; and (4) to adopt a child. If you are a family member of a person on active duty in the Armed Forces, you have additional rights under the FMLA. Note that both mother and father can take FMLA leave to bond with a newborn child, even if the child does not have a serious health condition.
Who is Eligible for FMLA?
Eligibility: The FMLA applies to private employers with 50 or more employees working within 75 miles of the employee’s worksite.
Amount of leave: Under the FMLA, an eligible employee is entitled to 12 workweeks of leave in a 12-month period. During leave, your employer must continue providing benefits as if you were still working. The 12-weeks may be taken all at once or incrementally.
Your right to reinstatement and benefits: At the end of your leave, your employer must generally allow you to return to your position or an equivalent job. There are exceptions to this general rule, especially if you are a key employee. In addition, your employer must reinstate your benefits.
CFRA and FMLA Differences
The California Family Rights Act (“CFRA”) has many of the same provisions as the FMLA. Just as the FMLA, it provides 12-weeks of unpaid, job protected leave and has many of the same eligibility requirements. Some key differences are as follows:
- Effective January 1, 2021, CFRA covers employers with just 5 or more employees.
- Employee’s “serious health condition” does not include pregnancy, childbirth, or related medical conditions. California enacted the California Pregnancy Disability Leave Law, which deals with a medical leave of absence related to pregnancy.
- CFRA is more protective of employee privacy. Although an employer may request a medical certification, that certification does not have to identify or state the nature of the condition or the underlying diagnosis.
- Second and third medical opinions are not allowed to verify serious health condition of family members.
What is PDLL?
The California Pregnancy Disability Leave Law (“PDLL”) provides job protected, unpaid leave to women for pregnancy, childbirth, and/or related medical conditions. Eligible employees are entitled up to 4 months of leave, which could be taken all at once or in increments. After end of PDLL leave, however, an eligible employee can take an additional 12 weeks of CFRA leave (provided that all eligibility requirements under CFRA are met).
What Are the Medical Conditions That Qualify for FMLA or CFRA Leave?
Generally, FMLA and CFRA apply to an employee with a serious health condition, which is defined as “an illness, an injury, impairment, or physical or mental condition,” that involves inpatient care or continuing treatment by a health care provider. As to the level of seriousness, it does not have to be life threatening. Mental health conditions such as depression, anxiety, panic disorder and other manifestations of emotional distress, etc., fall within FMLA/CFRA. Time for surgery after an accident or other injury, or treatment for a health condition such as COVID-19, cancer, severe arthritis, kidney disease, is also covered by the FMLA/CFRA. You can also take FMLA/CFRA leave to care for a spouse, child, daughter, or parent with a serious health condition.
What Are Violations of FMLA?
An employer violates the FMLA or the CFRA by interfering with or denying your rights under the law. Some examples include, but are not limited to, are as follows:
- You are fired on job protected FMLA or CFRA leave
- Employer retaliates or discriminates against you for requesting or taking FMLA or CFRA leave
- Employer denies FMLA or CFRA leave
If you believe that your FMLA/CFRA leave motivated your termination or any adverse action against you, e.g. you were denied promotion, coveted assignments, or other benefits, please let us know. You may also have an additional claim for disability discrimination, wrongful termination, failure to accommodate and/or engage in an interactive process, and failure to prevent these violations.
What Are My Rights to Medical Leave After 12-Week FMLA or CFRA Leave?
After FMLA, CFRA, Pregnancy Disability Leave, or employer provided leave under an internal medical leave policy applicable to all employees as a benefit of the job (e.g., all employees are entitled to 6-month of medical leave), your may have rights to additional leave under ADA and/or FEHA (California’s more protective counterpart). FEHA applies to employers with 5 or more employees and lists medical leave as a reasonable accommodation. Under FEHA, medical leave is of no statutory duration. This means there is no specific cut-off so long as additional leave does not cause an undue hardship on the employer (“significant difficulty or expense”), you request a finite extension of leave, and there is a likelihood you can return to work in the foreseeable future. FEHA leave is not job protected. However, individuals returning from leave must be given priority to vacant positions, over other candidates.
Additional Medical Leave Laws:
In addition to the above, an employer that allows employees to accrue sick leave, must allow employees to use up to half of that year’s accrued sick leave benefits to care for spouse, domestic partner, child, parent (including in-laws), sibling, grandparent or grandchild. Failure to comply is a violation of Labor Code section 233.
Paid Sick Leave
With some exceptions, employers must provide employees with up to 3 days of paid sick leave benefits that may be used in a 12-mont period to care for themselves, or family members.
Termination and Discrimination Upon Returning to Work
California law safeguards you from harassment, discrimination, or abused in retaliation for seeking medical leave and/or because of health issues. Engaging a qualified medical leave attorney as quickly as possible will increase your chances of obtaining a favorable outcome because it will enable us to begin building a file of important information and evidence needed to effectively represent you. Our offices are in Los Angeles.