One of our employees has notified us that he wants to use state/federal family leave in approximately two months when his baby is born. Although he is eligible for the leave, this will be an inconvenient time for him to be gone. Can we encourage him to take the leave at another time since he has a year within which to take it?
Protections under the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA) are strict. Be careful that you are not responding negatively to an employee’s request for leave to avoid chilling the exercise of employee rights and violating the CFRA and the FMLA.
The CFRA and the FMLA require covered employers to provide eligible employees with a total of 12 weeks of job-protected leave during any 12-month period for qualifying family and medical reasons.
The CFRA covers employers with five or more employees, while the FMLA covers employers with 50 or more employees.
Employees are eligible for CFRA leave if they work for a covered employer for at least 12 months and have worked at least 1,250 hours during the 12 months before the leave starts. An employee is eligible for FMLA leave if they meet the CFRA requirements and also work at a location with 50 or more employees within a 75-mile radius.
Baby-Bonding Leave
The CFRA and the FMLA provide eligible employees with job-protected leave when they take time off work for the birth, adoption, or foster care placement of a child, as well as time off to bond with the child. This is known as “baby-bonding leave,” and the right to the leave continues during the 12-month period following the date the child is born.
Both parents have the same right to take CFRA/FMLA leave for the birth of a child and for bonding.
The CFRA and the FMLA run concurrently for baby-bonding leave if the employee is eligible for both.
Interference with Leave
The CFRA and the FMLA provide that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the statutes. (29 Code of Federal Regulations, Section 825.220(a)(1); 2 California Code of Regulations, Section 11094(a)).
Most important, in accordance with CFRA regulations and U.S. Department of Labor Fact Sheet No. 77B, an employee’s CFRA/FMLA rights can be violated even if a requested leave is not denied, but the employer discouraged the leave.
“Discouragement” can take many forms. It often occurs when the employee first requests leave, and the management’s response is impulsive and negative.
Even if the leave ultimately is approved, the first reaction of the employer may be used as evidence of interference if issues with the leave arise later.
Train Managers/Supervisors
It is crucial that employers properly train their managers and supervisors about the strong protections provided to employees under the CFRA and the FMLA. Those who are in the chain of command to field leave requests must understand that CFRA/FMLA rights are basically non-negotiable, and that they cannot discourage an employee’s exercise of leave rights.
Employers must make it clear that stray comments like “you should be more visible in the office” or “we really need you to work during the time you want to take off” or “you are being inconsiderate of your co-workers” may discourage employees from taking leave.
Training managers to respond appropriately when an employee requests leave means they must understand the requirements of the CFRA/FMLA and what may constitute interference with an employee’s leave rights.
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 www.hrcalifornia.com.
