California Unpaid Leave Due to the Birth of a Child Law
California Moore-Brown-Roberti Family Rights Act (CalFRA) grants employees the right to take up to 12 weeks of unpaid leave each year if needed due to the birth of a child, the employee's inability to work because of illness and, as relevant here, "to care for a parent or a spouse who has a serious health condition." (Gov. Code, 12945.2, subd. (c)(3)(B).)
An employee entitled to such leave has the right to return to the same or a comparable position without loss of seniority or benefits. ( 12945.2, subds. (f), (g).)
All further statutory references are to the Government Code unless otherwise indicated. CalFRA applies only to employers of more than 50 persons and only to employees who have been with their employer for at least 12 months and who worked at least 1,250 hours during the preceding year. ( 12945.2, subds. (a), (c)(2)(A).)
The term "serious health condition" means "an illness, injury, impairment, or physical or mental condition that involves either of the following:
(A) Inpatient care in a hospital, hospice, or residential care facility.
(B) Continuing treatment or continuing supervision by a health care provider." ( 12945.2, subd. (c)(8).) Before granting leave, the employer is entitled to obtain a supporting certification from "the health care provider of the individual requiring care." ( 12945.2, subd. (j)(1).)
CalFRA has a federal law counterpart--the Family and Medical Leave Act of 1993. (29 U.S.C. 2601-2654, hereafter FMLA; see Marchisheck v. San Mateo County (9th Cir. 1999) 199 F.3d 1068, 1073, hereafter Marchisheck.)
The Commission has incorporated by reference the federal regulations interpreting the FMLA to the extent they are not inconsistent with CalFRA or other state laws. ( Cal. Code Regs., tit. 2, 7297.10.)
One such federal regulation defines when an employee is needed to care for a family member. (29 C.F.R. 825.116 (1999).)
That section states: "(a) the medical certification provision that an employee is 'needed to care for' a family member encompasses both physical and psychological care.
It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc.
The term also includes psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.