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Family Medical Leave Discrimination

California FMLA Discrimination Attorney

In California, two main statutes govern medical leave:  the Federal Family and Medical Leave Act ("FMLA") and the California Family Rights Act ("CFRA"). These statutes provide protections for covered employees who must take time off for medical reasons or for certain family related reasons. With a few exceptions, the protections provided by the CFRA are generally similar to those provided under the FMLA.

Who Is Covered By These Laws?

An employer is subject to FMLA if it has over 50 employees within 75 miles of the worksite, and at least 50 employees which worked 20 or more work-weeks in the current or preceding calendar year. If the company is a public agency, it is subject to provide FMLA regardless of the number of employees employed. All schools, private or public, are considered public agencies.   If you have been an employee for a covered employer for 12 months and have worked more than 1250 hours during the past year, you are considered a covered employee and your employer is required to provide you with up to 12 weeks of unpaid temporary leave during any 12 month period.   These 12 weeks do not have to be consecutive.

Right to Reinstatement

As a general rule if a covered employee takes an FMLA leave, the employee will entitled to return to his or her prior position or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment upon return from his or her leave.  Under the FMLA, an employer may, however, deny reinstatement at the end of an FMLA leave to a highly compensated "key" employee if reinstatement would cause "substantial and grievous economic injury" to its operations.

Permissible Reasons for a Leave

An employee may take a leave under the FMLA for any of the following reasons:

  • A serious health condition of the employee that makes the employee unable to perform the essential functions of his or her position;
  • The care of a spouse, child, or parent of the employee who has a serious health condition;
  • The birth of a child (i.e., maternity or paternity leave);
  • The adoption of a child by the employee or the placement of a foster care child with the employee.

A serious health condition consists of an illness, injury, impairment or physical or mental condition involving any of the following:

  • Hospitalization;
  • Condition lasting more than 3 consecutive days requiring multiple treatments;
  • Pregnancy or prenatal care;
  • Chronic  serious condition requiring repeated treatments by health care provider;
  • Permanent or long-term condition requiring treatment;
  • Multiple treatments of non-chronic conditions.

If you have been terminated, not returned to your former position or otherwise discriminated against for exercising your right to take leave under either the FMLA or the CFRA, you may be able to recover damages.  You should consult an attorney experienced in FMLA and CFRA discrimination cases who will advise you regarding your claim.