Use Caution When Granting Family Leave Before Employee Is Eligible

Ellen Savage

My employee wants to take 12 weeks off for child bonding, but he has worked for us for only 11 months so he’s not eligible for protected family leave time yet. Is there anything I need to be concerned about if we go ahead and grant his child bonding family leave time early?

Employees generally become eligible to take 12 weeks of job-protected child bonding time once they reach their one-year anniversary and have worked at least 1,250 hours in the previous 12 months. These laws apply to employers with 50 or more employees under the federal Family and Medical Leave Act (FMLA) and employers of 5 or more under the California Family Rights Act (CFRA).

An employer who allows an employee to start child bonding time prior to their one-year anniversary should be aware that the time taken before the anniversary date will not count toward the 12-week job-protected entitlement.

This means that as of your employee’s one-year anniversary, assuming he also meets the 1,250 hours worked requirement on his one-year anniversary, his job will be protected for an additional 12 weeks, despite the employee having been gone already for 4 weeks.

Note that this means your new employee will actually be able to take a total of 16 weeks, which is more time off than the law allows for other long-term employees.

FMLA Regulations

The FMLA regulations are clear that only the time after the employee’s one-year anniversary would count toward the 12 weeks of job-protected leave.

“An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave.” (Code of Federal Regulations, Title 29, Section 825.110 (d)).

The preamble to the FMLA regulations addresses the seeming unfairness of a rule that doesn’t count the time granted by a generous employer before the one-year mark as family leave. It says that while “this would result in newly hired employees being treated more favorably than long-term employees” this is in fact “not the result of the FMLA, but rather would result from the employer’s own policies” of choosing to grant leave before an employee meets the eligibility requirements. (67942 Federal Register, Vol. 73, No. 222, Monday, November 17, 2008)

In other words, the preamble says the FMLA regulations themselves are fair to everyone, and the employer is the one choosing to give more of a benefit to the new employee. The preamble goes on to say that an employer who feels this is unfair “could similarly voluntarily allow a more senior employee … to extend a leave beyond the legally required 12 weeks.”

CFRA Regulations

The CFRA regulations do not address this issue in as much detail as do the FMLA regulations. However, the CFRA regulations do say: “The employer should designate the portion of the leave in which the employee has met the 12-month requirement as CFRA leave.” (California Code of Regulations, Title 2, Section 11087(g)(3)(B)) In addition, where a California family leave issue is not addressed directly by the CFRA regulations, California employers are to follow the FMLA rules. (California Code of Regulations, Title 2, Section 11096)

Therefore, the time taken before the one-year anniversary would likely not be counted as CFRA either.

Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at