Intermittent Leave Rights When You Have an Ongoing Condition
California state law and federal law both guarantee covered employees the right to take protected medical leave when necessary. However, not every instance of medical leave is as simple as a one-time injury or illness. If a worker has an ongoing condition that does not amount to a complete disability, whether and when they can take protected leave may involve the application of a complex web of federal law, state law, and the employer’s own medical leave policies. Below, we discuss an employee’s right to take intermittent leave under the principal federal and state medical leave laws. If you need to take medical leave and your employer refuses, or if you have other employee rights concerns in California, call an Orange County labor law attorney for trusted advice and representation.
Intermittent Medical Leave Under FMLA and CFRA
The Family and Medical Leave Act of 1993 (FMLA) is the principal federal law that guarantees job security for employees who need to take leave to care for their own illness or injuries or to care for a close family member. The California Family Rights Act (CFRA) is California’s version of the same law. There are a few differences between the laws, including the fact that eligibility is easier to demonstrate under CFRA than under FMLA. For the sake of intermittent leave, however, the rules are similar, and a California employee can seek protection under either law or both laws.
FMLA and CFRA each guarantee qualified employees up to 12 weeks of unpaid, protected leave in a given 12-month period. The leave is “protected,” which means that an employer must allow the employee to take covered leave and must not retaliate against the employee for taking that leave; the employee’s job must be protected while they’re out.
Critically, under either law, the employee need not take all 12 weeks in one go. The federal government has clarified that employees may take leave “on an intermittent or reduced schedule basis,” while California allows employees to take leave for periods that are medically necessary “as determined by the health care provider of the person with the serious health condition.” Workers can also take reduced-schedule leave rather than being entirely on leave, such as working only part-time for a period of time or missing a few hours a week for medical appointments or to care for a sick child. The total time taken off will be counted against their 12 weeks.
The worker’s rights are not absolute, however. Employers may set certain minimum periods of leave and require the employee to schedule their leave or reduced hours in such a manner as to minimize the disruption of the employer’s business. Employees must give the employer advanced notice of their need to take intermittent leave, and they must provide appropriate medical documentation demonstrating their health conditions and the need for intermittent leave. Employer consent is not necessary for intermittent leave taken for pregnancy, a serious health condition, or a serious illness or injury of a covered family member, but notice is still important. Additionally, employers may require employees to first use accrued paid vacation days or sick leave before relying on FMLA or CFRA leave.
Special rules apply under FMLA and CFRA for parents to take “parental bonding leave” after a child is born. For example, the FMLA requires the employee to take parental bonding leave as a single continuous block, rather than intermittent leave, unless the employer chooses to allow intermittent leave. A California worker may be guaranteed additional time off under the Pregnancy Disability Leave law. Talk to your employee rights attorney about your situation to find out what leave you may be guaranteed under state and federal law.
If you are an employee with overtime or other employee rights concerns in Orange, Riverside, San Bernardino, Los Angeles, or San Diego counties, or a California employer dealing with employee rights allegations, wage & hour issues, employee contract disputes, or other employment law issues, contact a proficient and professional California employment law attorney at Coast Employment Law at 714-551-9930 for a free consultation.