How 4 major differences between FMLA and CFRA impact employers

Any California employer can tell you there are differences between the FMLA and CFRA. But what are the major differences and how do they affect employers? Here are the four biggest differences between the two laws and the impact each difference has from the employer standpoint.

Differences between FMLA and CFRA: How pregnancy is handled

FMLA (Family and Medical Leave Act): Pregnancy is considered a “serious health condition.”

CFRA (the California Family Rights Act): Pregnancy is excluded under the definition of serious health condition. Instead, in California it is covered by the Pregnancy Disability Leave (PDL) law.

Impact: “The result of course is that, potentially, a woman has a lot longer time off from work if she’s disabled due to pregnancy and then wants to bond with the baby.” Michelle Barrett explained in a recent CER webinar. This is because women disabled by pregnancy will be covered by FMLA and PDL and will still have CFRA time left to take for baby bonding.

Differences between FMLA and CFRA: Definition of spouse

FMLA: Registered domestic partners are not covered under the definition of “spouse.”

CFRA: Registered domestic partners are given equal treatment to other spouses.

Impact: “Someone with a registered domestic partner in California could theoretically take more than 12 weeks of leave in a year if the leave for the registered domestic partner is taken first.” Barrett told us. If the CFRA – but not FMLA – was exhausted first, that would still leave the 12 weeks of FMLA to take for a serious health condition later in the year. It could total up to 24 weeks off.

Differences between FMLA and CFRA: Covering military leave

FMLA: Qualifying exigencies because of the employee’s or spouse’s military duty qualifies for leave.

CFRA: Military-related leaves are not covered. CFRA does not cover military-related issues or needs for time off.

Impact: “Someone taking military exigency leave could also have a total of 24 weeks of leave in a year if the military exigency leave was taken first.” Barrett confirmed.

Differences between FMLA and CFRA: Caring for a family member who is a service member or veteran

FMLA: The employee may take time off to care for an ill or injured family member who is a service member or a veteran – for up to 26 weeks. This is beyond (but not in addition to) the regular 12 weeks of leave.

CFRA: Employee may take up 12 weeks off for the serious health condition of a family member, but there is no special consideration (or additional time) given for family members who are military service members or veterans.

Impact: “Someone who takes leave to care for an injured or ill military member (or a veteran) could potentially argue that CFRA is not exhausted for taking the time off for that family member, and they could be given up to 38 weeks off in a year.” Barrett warned. This could be a tough argument, however, and would not be nearly as likely as the other scenarios.

The above information is excerpted from the webinar “FMLA/CFRA Certifications: How to Make Sound Decisions When Designating Absences.” To register for a future webinar, visit CER webinars.

Michelle R. Barrett is the co-chair of the Leaves of Absence and Disability Accommodation Practice Group at Littler Mendelson PC. She advises, represents, and trains management clients in various areas of employment and labor law.