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Leaves of Absence and FMLA

The California Family Rights Act (CFRA) was established to ensure secure leave rights for the following: Birth of a child for purposes of bonding; Placement of a child in the employee's family for adoption or foster care; For the serious health condition of the employee's child, parent or spouse; For the employee's own serious health condition. In California, employers of 50 or more employees are generally required to afford employees with 12 months of continuous service 12 weeks of medical leave per year to care for themselves or close family members. Employers who violate this requirement can be sued. Under the U. S. Family Medical Leave Act, covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: for the birth and care of the newborn child of the employee; for placement with the employee of a son or daughter for adoption or foster care; to care for an immediate family member (spouse, child, or parent) with a serious health condition; or to take medical leave when the employee is unable to work because of a serious health condition. If you feel your rights under the Family and Medical Leave Act have been violated, employees have the choice of filing, or having another person file on his or her behalf, a complaint with the Secretary of Labor, or filing a private lawsuit. If the employee files a private lawsuit, it must be filed within two years after the last action which the employee contends was in violationof the Act, or three years if the violation was willful. If an employer has violated one or more provisions of FMLA, and if justified by the facts of a particular case, an employee may receive one or more of the following: wages, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or, where no such tangible loss has occurred, such as when FMLA leave was unlawfully denied, any actual monetary loss sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages for the employee. The California Fair Employment and Housing Act (FEHA) prohibits an employer from taking any adverse action against an individual based on her sex, pregnancy, childbirth or related medical conditions of any female employee. Such “adverse action” includes discriminating against an individual in compensation, terms, conditions or privileges of employment. "Sex" is defined to include pregnancy, childbirth or medical conditions related to pregnancy or childbirth. Discrimination on the basis of "pregnancy, child birth, or related medical conditions" is treated as sex discrimination under the FEHA. Pregnancy discrimination also violates the California Constitution's (Art. I, § 8) ban on sex discrimination. Moreover, it is unlawful for employers of five or more employees "to refuse to provide reasonable accommodation" requested by an employee on the advice of her health care provider, for conditions related to pregnancy, childbirth or related medical conditions. The California pregnancy disability leave law ("PDLL") is part of the FEHA and requires employers to provide employees up to four months of leave for disability due to an employee's pregnancy, childbirth or related medical conditions. All employers within the meaning of the FEHA must also reasonably accommodate employees for conditions related to pregnancy, childbirth or related medical condition. Unlike the Family Medical Leave Act (FMLA), there is no length of service requirement or requirement that an employee have worked 1250 hours prior to the commencement of a leave. Employers may not discriminate or retaliate against any person for exercising the right to take a pregnancy disability leave. Because the PDLL is part of the FEHA, the procedures for its enforcement and the remedies available for its violation are the same as for other violations of the FEHA.

For further information on the topic of workplace leaves of absence, please visit www.FMLALawyers.com