Under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), an employee is entitled to take unpaid leave when he or she or a family member suffers from a serious health condition, or for the birth of a son or daughter in order to care for the newborn child. A “serious health condition” has been defined as in-patient care (i.e., an overnight stay in the hospital), continuing treatment by a health care provider, or any period of incapacity or treatment due to a chronic serious health condition.

If an employee qualifies for leave under the FMLA or CFRA, he or she may take leave up to 12-weeks in any 12-month period. In some cases, employees may be eligible for intermittent leave. Many times, employers must allow employees to utilize sick leave or PTO when taking leave under the FMLA and CFRA. Discriminating against or interfering with an employee who asserts his or her rights under these statutes can result in obtaining a judgment for loss wages and benefits, punitive damages, emotional distress, and attorney’s fees and costs.

Companies with less than 50 employees, however, are exempt from these laws. Employees must also have worked for their employer for at least 12 months and been employed for at least 1,250 hours of service. Further, employees must furnish notice to their employer of their intent to take family leave. An employer may require an employee taking leave for a serious health condition to provide a health care provider’s certification of the disability.

California’s Fair Employment and Housing Act also provides, separate from the CFRA and FMLA, employees the ability to take unpaid leave on account of disability caused by pregnancy or childbirth (this leave is commonly referred to as “Pregnancy Disability Leave” (PDL)). Upon expiration of the leave, an employer must reinstate the employee to the same position or, if no such position exists, a comparable position. PDL also differs from the FMLA and CFRA because employers with even a minimum of five employees are required to comply with this law.