Questions & Answers:
Below are the questions submitted during the live webinar, along with the answers provided by Marie Davis, Esq. If you have questions of your own or require further information
regarding The FMLA and CFRA , feel free to contact Landegger Baron Law Group (see contact information to the left).
In cases where an employee is taking 4 months of CFRA pregnancy disability plus 12 weeks of bonding leave (total 7 months), does the doctor determine if they qualify for the full 7 months?
No, although some employees are really good at getting doctors to designate leave beyond 4 months. For example, somebody taking 4 months of pregnancy disability leave might have been prescribed 6 weeks of bed rest before the birth of their child and 8 weeks of rest after giving birth if they have a C-section. They might also decide that they want to continue to stay on with the baby because the doctor says they’ve got post-partum depression, which qualifies as a disability. In these cases, the doctor keeps writing notes and extending their disability leave to 4 months or beyond. So, if they’ve exhausted their 4 months of leave, CFRA could be triggered if a doctor continues to certify their disability. But if their leave ends, doctors won’t certify baby bonding.
It sounds like California employers are required to allow maternity leave for 7 months, but not paternity leave. Am I understanding that correctly?
With regard to paternity leave, technically you get 6 weeks of paid family leave under the state disability program. For employees that aren’t even covered by CFRA
or FMLA, because the disability law program provides 6 weeks of paid family leave, even though it’s not job protected, it’s still a benefit. All fathers, no matter
what, get 6 weeks of leave. Under the FMLA and CFRA, they would get 12 weeks, but after that, the only way that they could get more would be if their spouse, the
mother of the child, has a serious health condition or if the child has a serious health condition that they need to take additional time for. In those
circumstances, I could see somebody getting up to 7 months of leave, but you wouldn’t call it paternity leave—it wouldn’t even be FMLA leave—it would be a
“reasonable accommodation” on the part of the employer to allow for more leave.
Are we required to observe FMLA at 50 employees regardless of hours worked or is it 50 FTE?
Any employee listed on the payroll register is considered an “employee” for purposes of the 50. Part-time employees and employees on a leave of absence all count.
Regarding the key employees calculation, does that include temporary or contract employees?
Professional consultants are not actual employees. They’re generally 1099 employees, and they’re not included in the actual calculation.