When one employee’s son was born, he took 10 days of vacation. Then he took five days of sick leave, and now he has requested FMLA (Family and Medical Leave Act) leave. We didn’t see all this leave coming. Do we have to give him 12 additional weeks of time off, or can we make the FMLA retroactive? How do we prevent this “stacking” of leave?
—Roberto, HR Manager in Thousand Oaks
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.
To deal with this common question, we turned to Mary Topliff.
Employers can avoid feeling taken advantage of by having clearly written, thorough time off and leave of absence guidelines—provided to all employees—that cover how leave time is to be requested, the proper use of paid time off, and employee responsibilities during leaves. Then, employees will know what to expect, and employers can better administer employee time off.
Eligibility and Coverage of New Child Bonding Leave
FMLA and the California Family Rights Act (CFRA) apply to employers with 50 or more employees and cover leave time for eligible employees to care for a newborn or newly placed adopted or foster child (referred to here as “new child bonding leave”). FMLA and CFRA have the same basic employee eligibility criteria. The employee must: be employed for 12 months, have worked for 1,250 hours in the year preceding the leave, and work in an office of 50 employees or within 75 miles of such a location. Eligible employees may take up to 12 workweeks of job-protected leave in a 12-month period. New child bonding leave must be completed before the first year of the child’s birth or placement.
Employers may choose to apply the federal and California leave laws concurrently. To do so, include a statement in your leave policy indicating that whenever more than one law applies to the same type of leave, then the laws apply at the same time. If this is not clearly stated in a leave policy, arguably an employee could claim that he or she had only used leave time under one law and should be able to take time off under the other law. However, there is no case law authority in California on this point.
FMLA/CFRA leave may be taken in a block of time or on an intermittent basis. FMLA provides that an employer has discretion to grant or deny employees’ use of intermittent leave for new child bonding to best meet business needs. Under CFRA, the employer may require that new child bonding leave be taken in minimum two-week blocks of time. The CFRA requires employers to grant an employee’s request to take intermittent leave in less than these minimum required periods two times. For example, if the employee is taking new child bonding leave in two-week increments, the employee might wish to take only one week off in a particular month. The employer would have to grant such a request on this and one other occasion.
Use of Paid Time for Otherwise Unpaid Time
Both the FMLA and CFRA regulations provide that employers may require that employees use paid time off credits (vacation, sick, or paid time off) during the otherwise unpaid portion of FMLA/CFRA time. Employees don’t have to use their accrued paid time off credits before FMLA/CFRA time may begin. Employers are well served by explaining to employees how they will be paid while on leave. This will save administrative time and be useful to employees who are taking planned periods of time off.
Designation of Time Off as FMLA/CFRA Time
Under all circumstances, it is the employer’s responsibility to designate leave as FMLA/CFRA and to give notice to the employee of the designation (or denial of leave). When an employee is otherwise eligible, employers may designate an employee’s time off as FMLA/CFRA time under the following circumstances:
- the employee explicitly requests FMLA/CFRA time;
- the employee doesn’t mention FMLA or CFRA but requests leave for a reason that is covered by these laws, for example, “I need to care for my seriously ill mother,” or “My partner just had a baby, and I’d like to take time off to be with my newborn”; or
- the employee calls in sick or requests to use vacation or other accrued paid time off and gives the employer a reason that qualifies under FMLA/CFRA. Upon the employee’s request for a leave, the employer must ascertain whether the reason for the leave qualifies as FMLA/CFRA. If more information is needed to make the determination, the employer must inquire further.
The CFRA regulations include an interesting, albeit confusing, provision. On the one hand, employees have sufficiently requested an FMLA/CFRA leave if they have provided information to the employer suggesting that their time off is for a qualifying reason. On the other hand, the CFRA regulations, in a section addressing the use of paid time off, state that when an employee requests to use vacation or other paid accrued time off but doesn’t explain the reason for the time off, the employer may not ask whether the employee is taking the time off for a CFRA-qualifying purpose. Thus, if an employee simply asked for vacation time, and the employer had no reason to believe that the vacation time would entail caring for a seriously ill family member or a new child, the employer should not inquire further. However, if the employer denies the employee’s request for time off, and the employee then provides information that it may be for a CFRA-qualifying reason, further inquiry is appropriate.
The regulations also address the issue of retroactively designating time off as FMLA/CFRA leave. Employers may not retroactively designate time off as FMLA/CFRA leave if they had sufficient information at the time of the employee’s request to determine that FMLA/CFRA applied and, for whatever reason, failed to designate. However, if the time off begins and then the employer discovers information that FMLA/ CFRA applies, some or all of the time may be retroactively designated. If the employer learns after the employee returns to work that the time off qualified as FMLA/CFRA time, all of the time may be retroactively designated.
Therefore, to respond to your specific question, when the employee in question requested the 10 days of vacation time and five days of sick time to care for his newborn child, you had sufficient information to designate the time off as FMLA/CFRA at the time of the request. Therefore, FMLA/CFRA cannot be designated for this period and this employee has not used any FMLA/CFRA and would be eligible to take up to 12 weeks of FMLA/CFRA time.
In a future issue, I will cover another question relating to this topic: how to avoid retaliation against those who request or take family leave.
Mary L. Topliff is principal of the Law Offices of Mary L. Topliff in San Francisco.