Medical Leave of Absence

The topic of this month's Employment Law Bulletin is medical leaves of absence under the California Family Rights Act ("CFRA") and the federal Family and Medical Leave Act ("FMLA"). If you have 50 or more employees, then these laws apply to you and your employees. The Acts are virtually identical, they apply simultaneously, and you must comply with the stricter of the two Acts in the areas where they differ.

Job Protection: Barring some narrow exceptions, an employee is eligible for a leave of absence of up to twelve weeks, with guaranteed reinstatement, if the employee: (1) Has been employed by you for at least 12 months (either consecutively or non-consecutively); (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 you employ 50 or more employees.

You must grant an eligible employee a leave of absence for any of several reasons, 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 Bulletin. This Bulletin focuses on an employee's own serious medical condition requiring a leave.

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".

"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 supervision means a period of incapacity lasting more than three consecutive calendar days and involves either: (A) Treatment by a health care provider two or more times (i.e., at least two office visits) ; or (B) 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.

Employers' Responsibilities: Critically, it is 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. Also, an employee is entitled to up to twelve weeks' leave of absence within a 12-month period. Although the 12-month period may be calculated under one of several different methods, you must use the method most favorable to your employees. Finally, you may require a medical certification from your employee's physician, but be aware that a health care provider in California is not required, nor permitted, to disclose the employee/patient's diagnosis (at least not without the employee's consent).

ESKRIDGE & ASSOCIATES, Attorneys at Law, may be contacted by phone (310/792-7021), by fax (310/792-7022) or by e-mail ( or Please visit our web site at or

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