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Intermittent FMLA/CFRA and PFL California

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  • Intermittent FMLA/CFRA and PFL California

    1. Employer has over 50 employees
    2. 3-4 employees want for go on PDL (SDI benefits)/FMLA & later CFRA while getting paid PFL benefits. One might not have worked 1250 hours in the past 12 months if the rolling 12 month count (going back wards from date of leave request) is used.
    3. The employees are not "key employees". One is a male (so will not qaulify for PDL)

    The employer clearly cannot influence the timing of PDL but what influence, if any, does the employer have in scheduling of the CFRA (&/FMLA) for bonding? The department cannot function with 3 or more employees being out at the same time.
    Also, how much advance notice do each of the employees need to give for the intermittent or lump-sum use of CFRA/FMLA. Since CFRA starts only after the medically certified disability ends, the employees cannot give the exact future dates

    If the employer has not been consistent in checking the 12 month period used as base period to calculate the hours worked, but just approving leaves previously anyways, how big of an issue is that in enforcing the qualifying requirements now?

  • #2
    If the person doesn't legally qualify, they do not legally qualify. They don't somehow magically become eligible because someone else was erroneously granted benefits in the past which they were not legally entitled to. Now if all the exceptions are of a certain race, gender, religion, etc., you are going to have some serious explaining to do as to why your policy suddenly changed or at the very least you need to be very consistent going forward.

    You can find the answers to your other questions here
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


    • #3
      Thanks for yor response. I do not disagree with you on the eligibility question. The eligibility was not looked at carefully in the past just because the employer wanted to and was able to allow the leave.
      With so many employees wanting to be out around the same time, it will hugely impact the organization. I read the document that you sent the link to and am still not clear on the scheduling question. Can we tell the employees what (intermittent) days they can take off (so not all of them are out the same day) or can we refuse intermittent leave & offer only the option of taking (up to) 12 weeks together?


      • #4
        Under CFRA and straight from the chart for bonding purposes:

        No requirement that employer agrees. Basic minimum leave duration is two weeks for CFRA-only baby bonding leave. But, employer must grant a request for leave of less than two weeks’ duration on any two occasions.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


        • #5
          Just to clarify, remember that for an employee that takes CFRA bonding immediately after PDL, the 12 months is counted from the first date of PDL, not the subsequent CFRA leave. You may have known this, but calculation errors can occur because employers are not aware.

          As for timing, the employer cannot dictate when an employee goes on leave. For foreseeable leave, 30 days notice can be required. Where it's not foreseeable, notice must be given as soon as practicable.

          There is no undue hardship defense for granting CFRA leave. If all of the requirements are met, the employer must grant the leave.


          • #6
            3 years ago in a department with 14 people, 4 of us had babies in a 6-week span, and all of us took 8 weeks off. The department head was thrilled for each of us, and had plenty of time to plan ahead and ensure duties were covered. Not all medical leaves give time to plan ahead like maternity leaves. But if the law allows eligible employees the leave and the job protection. Employer does not get to say no, we can't do that, that's too many at once. Employer gets to suck it up and plan ahead and ensure duties are covered.

            If there are ineligible employees in the mix, hoping to ride on the coattails of precedents set by other ineligible employees, it is perfectly legal for the employer to say no, you're not eligible. It is also legal for the company to offer more than the law allows. If I were the HR manager in this case, I would not allow ineligible employees to assume it will be FMLA or job-protected leave if in fact the company is not planning to designate it as such. If I were the ineligible employee in this case, I would want as much notice as possible of what my options are. There could be policies on non-FMLA leaves of absences for those affected ees.

            Hope that helps.


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