Are You Entitled To A Medical Leave Of Absence?


The California Family Rights Act ("CFRA") and the federal Family and Medical Leave Act ("FMLA") provide eligible employees with a medical leave of absence for up to three months, plus a guarantee of reinstatement to his/her same or comparable job upon returning to work.

Employee Eligibility

Barring some narrow exceptions, an employee is eligible for a leave of absence of up to twelve weeks, with guaranteed reinstatement, if the employee works for an employer who has 50 or more employees, and the employee:

  1. Has been employed by the employer for at least 12 months;
  2. Has been employed for at least 1,250 hours during the 12-month period immediately preceding the leave; and
  3. Is employed at a work site within 75 miles of where the employer employs 50 or more employees.

If an employee meets these requirements, then he or she must be granted a leave of absence for any of several reasons specified by law, such as when the employee is incapacitated due to a "serious health condition" which renders the employee unable to perform the essential functions of his or her job.

Other permissible reasons requiring a leave of absence under both the FMLA and CFRA include the birth of a child, placement of a child for adoption/foster care, and the serious health condition of the employee's spouse, child, or parent. The FMLA and CFRA are virtually identical, with one exception -- pregnancy leaves of absence -- which will be discussed in a future article. This article focuses on an employee's own serious medical condition requiring a leave of absence.

Serious Health Condition = Incapacity

A 'serious health condition' is defined as involving either "inpatient care" or "continuing treatment or continuing supervision by a health care provider," which incapacitates the employee who cannot then perform his or her essential job functions.

"Inpatient care" is easily defined, and includes an overnight stay in a hospital or residential medical care facility. "Continuing treatment/supervision" is a bit more complex. Continuing treatment or continuing supervision means a period of incapacity lasting more than three consecutive calendar days and involves either:

  1. Treatment by a health care provider two or more times (i.e., at least two office visits to the doctor); or
  2. Treatment by a health care provider at least one time and a regimen of continuing treatment -- such as being prescribed a prescription medication.

Expressly excluded from these definitions are minor ailments such as colds, flu, upset stomachs, and ordinary headaches. However, any complications resulting from these ailments may qualify as a serious medical condition. Also, if an employee has a chronic condition, then any subsequent period of time requiring a leave for reasons related to the condition, even if lasting less than three days, is covered.

What the Employer May Require

If an employee believes s/he is entitled to a leave of absence due to a "serious medical condition," the employee should notify its employer, preferably in writing, as soon as possible. The employer may request a medical certification from the employee's physician (most employers do request this) and, though the physician is required to provide certain information, the doctor is not required, nor permitted, to disclose the employee/patient's diagnosis (unless the employee gives written consent).

It is always the employer's responsibility to designate an employee's leave of absence as FMLA or CFRA, and to give notice of this to the employee. Finally, since an employee is entitled to up to twelve weeks' leave of absence within a 12-month period, the employer is permitted to calculate the "12-month" period under one of several different methods, but it must be calculated using the method most favorable to the employees.