Family & Medical Leave

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When are employees entitled to take a family or medical leave?

How is sexual harassment defined? Sexual harassment can occur in many ways, but employment discrimination laws divide prohibited sexual harassment into two categories:

The FMLA and the CFRA give many employees the right to take up to 12 weeks of unpaid leave for any of the following reasons:

• The employee’s serious health condition
• The serious health condition of the employee’s child, parent, or spouse
• Bonding with a child after childbirth (maternity/paternity leave)
• The adoption or foster care placement of a new child in the employee’s family

A “serious health condition” includes any condition that requires an overnight, inpatient stays in a health care facility; a period of incapacity of more than three consecutive days and treatment from a health care provider; or a period of absence to receive multiple treatments. Various laws also provide most California employees with the right to take job-protected pregnancy disability leave for up to 4 months. Visit our Pregnancy Disability Leave page to learn more.

When are employers required to provide leave?

Employees are eligible for leave under the CFRA or FMLA if both of the following are true:

• Their employer has 50 or more employees working within 75 miles of the employee’s job site. Local governments (cities and counties) and the State of California are required to provide leave regardless of the number of people they employ in a particular location.
• The employee has worked for the employer for more than 12 months and has worked at least 1,250 hours during the 12 months before leave begins.
  Pregnancy disability leave must be provided to eligible employees by any California employer that has more than 5 employees. Unlike the FMLA or the CFRA, an employee who has worked for the employer for less than one year is entitled to take a pregnancy disability leave. Visit our Pregnancy Disability Leave page to learn more.
• Bonding with a child after childbirth (maternity/paternity leave)
• The adoption or foster care placement of a new child in the employee’s family

What rights do employees have under the FMLA/CFRA?

Employees who take family or medical leave are entitled to return to the same or an equivalent position after the leave, except in limited circumstances, such as when the employee would have been terminated in a layoff even if the employee had not taken a medical leave. An employer may not use the employee’s family or medical leave as a “negative factor” in the layoff decision.

Employees who participate in a group health plan that is furnished by the employer are entitled to continue their enrollment in the plan while they are taking a family or medical leave.

Employees who take a family or medical leave are entitled to accrue seniority and to participate in employee benefit plans (such as life and disability insurance and pension plans) to the same extent as if leave had been granted for any other reason.

Employees who are entitled to leave have the right to take as much of their 12 weeks to leave as they need all at one time. They can also take shorter leaves that cumulatively add up to 12 weeks.

Employees who need more than 12 weeks off work for reasons related to their own health condition may be entitled to additional medical leave as a reasonable accommodation for their disability. Visit our Reasonable Accommodations page to learn more.

Can employees use their sick leave to be paid during a family or medical leave?

FMLA and CFRA leave is unpaid. However, employees who take a family or medical leave for any reason can use accumulated vacation pay or other accumulated paid leave (other than sick leave) during their absence, until they have used up those benefits.

Employees who take a medical leave because of their own serious health condition can also use their accumulated sick leave during their absence until they have used up that benefit.

What can employees who are being sexually harassed do to protect their legal rights?

The first thing a person who is being sexually harassed should do is seek legal advice. Depending on the nature and frequency of the harassment, a sexual harassment lawyer in Beverly Hills may advise the employee to notify the employer and to follow the employer’s sexual harassment complaint procedure. If the complaint does not resolve the problem, the employee may be entitled to seek a legal remedy.

In some cases, however, particularly when there is no harassment reporting policy or when the harasser is the CEO or some other highly placed executive, the employee may not need to report the problem to the human resources department, although it is often still advisable to do so. The Los Angeles sexual harassment lawyers at E&L, LLP can help you identify your options in this situation and guide your response.

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