San Francisco Employment Law Firm Blog

A qualifying employee (who worked for his employer for 1,250 hours or more during the past year for a company with 50 or more employees within a 75 mile radius) invokes his CFRA / FMLA rights when she asks for leave for her own serious health condition or that of a family member, and need not mention CFRA or FMLA by name in order to be entitled to leave. The employer may grant the leave without ever requesting medical certification. However, if the employer requires such certification, it should do so either at the time that the employee gives notice of her need for leave or within two business days thereafter, or - if the leave of the employee was unforeseeable - within two business days after the employee's leave starts. Cal. Gov. Code section 12945.2(j)(1), (k)(1).

Under CFRA, the certification is legally sufficient if it includes the dates on which the condition started, and the estimated time the employee will require the leave. Once an employee provides adequate certification of her serious health condition, the employer must grant the leave, unless it has "reason to doubt the validity of the certification." The employer may request an employee to undergo a second or third opinion of his condition if and only if the employer has a reason to doubt the validity of the original certification provided by the employee. Employers are required to obtain the opinion of a second and third doctor before denying leave or terminating an employee because of doubts about the validity of certification.

If you believe that you suffered an adverse employment action or were wrongfully terminated in retaliation for exercising your rights under FMLA / CFRA, contact San Francisco employment lawyer Arkady Itkin to discuss your rights.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: California Family Rights Act (CFRA) , Family Medical Leave Act (FMLA) , Retaliation , Unemployment Benefits

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California Family Rights Act (CFRA) is a part of FEHA (Fair Employment and Housing Act) and generally provides that it is unlawful for an employer to refuse an employee's request for up to 12 weeks of family care and medical leave in a year. An employer is also forbidden from discharging or discriminating against an employee who requests family leave or medical leave. Family care and medical leave includes leave because of an employee's own serious health condition that makes the employee unable to perform the functions of his position. "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either of the following: (a) Inpatient care in a hospital, hospice, or residential care facility; (b) Continuing treatment or continuing supervision by health care provider.

To be eligible for CFRA leave, an employee must have more than 12 months of service with the employer and have at least 1,250.00 hours of service with the employer during the previous 12 months of employment. It is important to note that this condition must be satisfied not at the time the employee suffered an adverse employment action (termination, suspension, etc.), but whether the employee was eligible to take CFRA leave when she took the leave that resulted in adverse employment action.

It is also unlawful to retaliate against an employee for exercising his rights under CFRA. The Dudley v. Caltrans 90 Cal.App.4th 255 was the first court to outline the elements of proving CFRA retaliation, adopting FMLA retaliation analysis used by the federal courts. The court concluded that the elements of retaliation claim under CFRA are as follows: (1) the defendant was the employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercise her right to take leave for a qualifying CFRA purpose, and (4) the plaintiff suffered an adverse employment action, such as termination, fine, demotion, or suspension because of her exercise of her right to CFRA leave.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: California Family Rights Act (CFRA) , Family Medical Leave Act (FMLA) , Retaliation , Wrongful Termination

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