Family Rights Act
The California Family Rights Act (“FRA”) applies to employers employing more than fifty (50) people within a seventy five (75) mile radius and requires such employers to allow employees with more than one year on the job to take up to twelve (12) weeks of unpaid leave if they, or their parents or children, suffer from a “serious medical condition” or are adopting or bonding with a child. (Bonding leave may be taken at any time within twelve (12) months of birth and may be “tacked” onto an earlier four month of Pregnancy Disability Leave (“PDL”), resulting in up to seven months of leave.)
An employee need only tell the employer that he or she has a “serious health condition,” is “adopting” or “bonding,” or words to similar effect; no explicit reference to the FRA, or the similar Federal Family Medical Leave Act (“FMLA”) is required. The employee need only let the employer know that he/she has a condition that will require inpatient treatment, numerous doctor’s appointments or that might disable the employee for more than three (3) days, or is adopting or bonding.
An employer may request in writing a doctor’s certificate specifying the severity and probable duration of the medical condition, and may require a second opinion from a physician of its choosing to be paid for by the employer. If the opinions are not in agreement the employer must pay for a third opinion. The definition of a “serious health condition” is much broader than the definition of “disability,” but does not extend to minor medical conditions such the common cold or influenza, unless such medical conditions cause more than three days of disability or otherwise constitute a “serious health condition.” The FRA also protects employees who require intermittent leaves or absences for on-going medical conditions, including as migraines, asthma, etc. Medical certification under the FRA does not include medical facts, such as course of treatment, prognosis or diagnosis. After an FRA leave, the employee must be allowed to return to their position or a “comparable position” without any adverse effect, e.g., demotion, decrease in compensation or loss of seniority, if applicable.
Quick action is usually required when an employee suspects he or she is being denied FRA rights or suspects the rights are being subject to interference or retaliation because in most cases the employee must file a complaint within one year of the wrongful conduct with the Department of Fair Employment and Housing. Early action is also advisable in order to preserve evidence that would be critical in proving a claim, e.g., witness statements, depositions, documentary evidence and personnel records.
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