California Family Rights Act / FMLA Retaliation Claims

Under CFRA (California Family Rights Act), an employer is generally required to grant an eligible employee’s request to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. CFRA or FMLA leave may be taken because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee. A “serious health condition” means “an illness, injury, impairment, or physical or mental condition” that involves either “inpatient care in a hospital, hospice, or residential health care facility” or “continuing treatment or continuing supervision by a health care provider.” (Gov. Code, ยง 12945.2(c)(8).)

Thus, for instance, such a common illness as diabetes qualifies as a “serious health condition” within the meaning of CFRA, because the definition includes any illness that involves “continuing treatment or continuing supervision by a health care provider” or a chronic serious health condition which requires periodic visits for treatment to a healthcare provider, which continues over an extended period of time and which may cause episodic rather than a continuing period of incapacity, such as asthma, diabetes, and epilepsy.

In Dudley v. Dept. of Transportation, 90 Cal.App.4th 255 (2001), the court made it clear that it is unlawful to fire or otherwise retaliate (demote, suspend, discipline, etc..) against an employee for exercising his right to FMLA / CFRA leave. Further, the court held, the fact that an employee exhausted his leave rights before being terminated does not necessary change the fact that the termination was considered workplace retaliation and thus unlawful.

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