§1.3 B.

Basic 12-Week Leave Entitlement

The FMLA and the CFRA require covered employers to permit eligible employees to take up to 12
weeks of job-protected, unpaid leave in a 12-month period for the following reasons (29 USC
§2612(a); Govt C §12945.2(a)):
 For an employee's own serious health condition;
 To care for a covered family member with a serious health condition; or
 To bond with a newborn, adopted, or foster child.
The NPLA allows an employee to take up to 12 weeks of leave per year to bond with a newborn,
adopted, or foster child. Govt C §12945.6(a)(1). Unlike the FMLA or CFRA, it does not allow an employee
to take leave for his or her own serious health condition or to care for a family member with a serious
health condition.
The FMLA also allows an employee to take up to 12 weeks of leave per year for a "qualifying exigency"
arising out of the fact that the employee's covered family member is a military member (29 USC
§2612(a)(1)(E))
 On covered active duty;
 On call to covered active duty status; or
 Who has been notified of an impending call or order to covered active duty.
In most circumstances, an employee may take FMLA and CFRA leave on an intermittent or reduced-
schedule basis. 29 USC §2612(b); 2 Cal Code Regs §11090(a). See §§1.69–1.79.
An employer must continue an employee's health benefits during FMLA/CFRA/NPLA leave (29 CFR
§825.209(a); Govt C §12945.6(a)(2); 2 Cal Code Regs §11092(c); see §§1.171–1.174). An employee is
entitled to return to the same or an equivalent position following the leave (29 CFR §825.214; Govt C
§12945.6(a)(1); 2 Cal Code Regs §11089; see §§1.127–1.158).
An employee may not waive, nor may an employer induce an employee to waive, his or her
prospective rights under the FMLA or the CFRA (e.g., an employee may not "trade off" the right to take
leave against some other benefit offered by the employer). 29 CFR §825.220(d); 2 Cal Code Regs
§11094(c).

C. Longer Leave May Be Available

§1.4 1. Pregnancy Leave

An employee who is disabled by pregnancy, childbirth, or a related medical condition may qualify for up
to 4 months of leave under the Pregnancy Disability Leave Law (PDLL) (Govt C §12945). Govt C
§12945(a); 2 Cal Code Regs §11042(a). An employer may designate PDLL leave as FMLA leave, but
the CFRA specifically excludes pregnancy-related leave from coverage. Govt C §12945.2(c)(3)(C); 2 Cal
Code Regs §11093(b). However, when an employee's PDLL/FMLA leave ends, she may then qualify for
up to 12 weeks of CFRA bonding time leave, resulting in a potential total leave period of 7 months.
For discussion of the PDLL, see §§2.2–2.51. For discussion of the interaction between the FMLA,
the CFRA, and the PDLL, see §§4.8–4.9, 4.24–4.30.

§1.5 2. Military Caregiver Leave

 The FMLA provides up to 26 weeks of leave per year to care for a seriously ill or injured service
member or veteran. 29 USC §2612(a)(3). For discussion of military caregiver leave, see §§1.80–1.81.

§1.6 3. Accommodation of Disability

An employee who is disabled and unable to perform his or her job after exhausting FMLA/CFRA leave
may be entitled to additional leave as a reasonable accommodation of a disability under the Fair
Employment and Housing Act (FEHA) (Govt C §§12900–12996) and the Americans with Disabilities Act
of 1990 (ADA) (42 USC §§12101–12213). 29 CFR §825.702(a); 2 Cal Code Regs §11093(d)–(e).
See Maharaj v California Bank & Trust (ED Cal 2012) 909 F Supp 2d 1198, 1204 (summary judgment
denied when bank terminated teller on expiration of 12-week medical leave but teller could have
performed job with ADA leave extension).
For discussion of disability leave, see §§2.63–2.74.

D. How FMLA, CFRA, and NPLA Interact

§1.7 1. FMLA and CFRA Leaves Run Concurrently

The clock starts running on an employee's FMLA or CFRA leave when the employer designates it
as FMLA or CFRA leave and gives notice of the designation to the employee. 29 CFR §825.300(d)(1); 2
Cal Code Regs §11091(a)(1)(A). See §§1.101A–1.106. In general, FMLA and CFRA leaves run
concurrently if an employee is taking leave for a purpose covered by both laws. See Govt C §12945.2(s)
("Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to
the FMLA"). For example, an employee who exhausts 12 weeks of CFRA leave to bond with a newborn
has no remaining FMLA leave within the applicable 12-month period as long as the employer designated
the leave as both FMLA and CFRA leave.
Although FMLA and CFRA leaves generally run concurrently, there are two significant exceptions. The
first is when the leave is for a pregnancy-related disability (see §1.42). The second is when leave is taken
under the CFRA to care for a registered domestic partner with a serious health condition (see §1.43).
For further discussion of the interaction between the FMLA and the CFRA, see §§4.5–4.22.

§1.8 2. Greater Benefit Applies

The FMLA regulations recognize and specifically allow for greater state law protection. See 29 CFR
§825.701(a) ("Nothing in FMLA supersedes any provision of State or local law that provides greater family
or medical leave rights than those provided by FMLA"). In addition, the CFRA regulations incorporate by
reference the FMLA regulations to the extent that they are within the scope of the CFRA and not
inconsistent with the CFRA regulations, other state law, or the California Constitution. 2 Cal Code Regs
§11096. The appropriate way to view these overlapping laws and regulations is that the one that provides
an employee with the greatest protection applies.

§1.8A 3. NPLA Leave Is Distinct From FMLA/CFRA Leave

The NPLA does not apply to an employee who is eligible to take leave under
the FMLA and CFRA. Govt C §12945.6(c).
 II. COVERED EMPLOYERS

A. Private Employers

§1.9 1. General Rule of Coverage

Both the FMLA and the CFRA set out the same general rule of employer coverage, although each
uses a slightly different formulation:
 Under the FMLA, an employer is "any person engaged in commerce or in any industry or activity
affecting commerce who employs 50 or more employees for each working day during each of 20
or more calendar workweeks in the current or preceding calendar year." 29 USC §2611(4)(A)(i);
29 CFR §§825.102, 825.104(a).
 Under the CFRA, a covered employer is "any person or individual … engaged in any business or
enterprise in California who directly employs 50 or more persons within any state of the United
States, the District of Columbia or any territory or possession of the United States to perform
services for a wage or salary." 2 Cal Code Regs §11087(d); see Govt C §12945.2(c)(2). "'Directly
employs' means that the employer maintains an aggregate of at least 50 part- or full-time
employees on its payroll(s) for each working day during each of 20 or more calendar workweeks
in the current or preceding calendar year." 2 Cal Code Regs §11087(d)(1).
Under the NPLA, an employer is "[a] person who directly employs 20 or more persons to perform
services for a wage or salary." Govt C §12945.6(i)(1).

WARNING: Remember that the 20- or 50-employee rule for employer coverage is distinct from the 20- or
50-employees-within-75-miles rule for employee eligibility, which is discussed in §§1.35–1.37.

§1.10 a. "Engaged in Commerce" or "Industry or Activity Affecting Commerce"

To be covered under the FMLA, an employer must be "engaged in commerce or in any industry or
activity affecting commerce." 29 USC §2611(4)(A)(i); see 29 CFR §§825.102, 825.104(a). Although these
terms are formally defined in accordance with §501(1) and (3) of the Labor Management Relations
Act (29 USC §142(1), (3)), the FMLA regulations provide that if an employer meets the 50-employee
threshold, it is deemed to be engaged in commerce or in an industry or activity affecting commerce. 29
CFR §825.104(b). Thus, as a practical matter, all private employers who meet the 50-employee threshold
are subject to the FMLA.

§1.11 b. Fifty-Employee Threshold

To be covered under the FMLA and the CFRA, an employer must have 50 or more employees. 29
USC §2611(4)(A)(i); 29 CFR §§825.102, 825.104(a); Govt C §12945.2(c)(2); 2 Cal Code Regs
§11087(d). Whether an employer meets this 50-employee threshold is determined according to the
following rules:
 Employees who are counted:
 Any full- or part-time employee who appears on the employer's payroll for a particular week is
deemed employed each working day of that week, whether or not the employee receives
compensation for the week. 29 CFR §825.105(b)–(c); 2 Cal Code Regs §11087(d)(1).
 See Walters v Metropolitan Educ. Enters., Inc. (1997) 519 US 202, 206, 117 S Ct 660 (Title
VII case; "This test is generally called the 'payroll method,' since the employment relationship
is most readily demonstrated by the individual's appearance on the employer's payroll").
 Employees on paid or unpaid leaves (e.g., FMLA/CFRA leave or disability leave), on leaves
of absence (e.g., bereavement leave or sabbatical), or on disciplinary suspensions as long as
there is a reasonable expectation that the employee will return to active employment. 29 CFR
§825.105(b). Note that the corresponding CFRA regulation does not require that there be an
expectation that the employee will return to active employment in order for an employee on a
leave or suspension to be counted. See 2 Cal Code Regs §11087(d)(1).
 Employees who are paid in whole or in part by commission (CFRA only). 2 Cal Code Regs
§11087(d)(2).
 Employees who are not counted:
 Employees working outside the United States or any U.S. territory or possession. 29 CFR
§825.105(b).
 Employees with whom there is no employer-employee relationship (e.g., employees who
have been temporarily or permanently laid off). 29 CFR §825.105(c).
 Employees who begin work after the first working day of a calendar week are not considered
employed on each working day of that calendar week. 29 CFR §825.105(d).
 Employees who are terminated before the last working day of a calendar week are not
considered employed on each working day of that calendar week. 29 CFR §825.105(d).
 Independent contractors. 29 CFR §825.105(a); Govt C §12945.2(c)(2)(A); 2 Cal Code Regs
§11087(d)(2).
Whether an employer meets the 50-employee threshold is not a jurisdictional limitation; rather, it is a
substantive element of the plaintiff's claim for relief. Heinsohn v Carabin & Shaw, P.C. (5th Cir 2016) 832
F3d 224, 231; Cobb v Contract Transp., Inc. (6th Cir 2006) 452 F3d 543, 550, citing Arbaugh v Y & H
Corp. (2006) 546 US 500, 126 S Ct 1235.

NOTE: It is likely that courts will use these same rules in determining whether the NPLA's 20-employee
threshold is met. See Govt C §12945.6(j) (directing Fair Employment and Housing Council (FEHC)
to incorporate NPLA into CFRA regulations to extent those regulations are within scope of, and not
inconsistent with, NPLA). The FEHC's proposed amendments are available
at [Link]

§1.12 c. Twenty Calendar Work Weeks in Current or Preceding Calendar Year

To be covered under the FMLA or the CFRA, the 50 or more employees must have been employed for
20 or more (not necessarily consecutive) calendar work weeks in the current or preceding calendar year.
29 USC §2611(4)(A)(i); 29 CFR §§825.102, 825.105(e); Govt C §12945.2(c)(2); 2 Cal Code Regs
§11087(d)(1). Thus, an employer that meets the 50-employee threshold at any time during a calendar
year remains covered by the FMLA for the remainder of that year and the following year. 29 CFR
§825.105(f); 2 Cal Code Regs §11087(d)(1). The FMLA regulations provide as an example an employer
that meets the 50-employee/20-work week test as of September 1, 2008. After that date, the employer
drops below 50 employees for the remainder of 2008 and for all of 2009. In that case, the employer would
nevertheless be covered by the FMLA throughout 2009 because it met the coverage criteria in the
preceding calendar year (i.e., 2008). 29 CFR §825.105(f).
NOTE: It is likely that the NPLA will use this same formulation in determining whether its 20-employee
threshold is met. See Govt C §12945.6(j) (directing Fair Employment and Housing Council (FEHC)
to incorporate NPLA into CFRA regulations to extent those regulations are within scope of, and not
inconsistent with, NPLA). The FEHC's proposed amendments are available
at [Link]

§1.13 2. Corporations

Because the legal entity that employs the employee is generally the employer under the FMLA, a
corporation, rather than its separate establishments or divisions, is a single employer. 29 CFR
§825.104(c). When one corporation has an ownership interest in another corporation (e.g., a subsidiary),
it remains a separate employer unless it meets the joint employment test (see §§1.18–1.21) or the
integrated employer test (see §1.22). 29 CFR §825.104(c)(1); see Engelhardt v S.P. Richards Co. (1st Cir
2006) 472 F3d 1, 4 ("there is a strong presumption that a parent corporation is not the employer of its
subsidiary's employees").

§1.14 3. Successors-in-Interest

Successors-in-interest of covered employers are also generally covered employers. 29 USC

§2611(4)(A)(ii)(II); 29 CFR §825.104(a); 2 Cal Code Regs §§11087(d), 11096. The determination of
whether an employer is a successor-in-interest of a covered employer is a question of law for the
court. Osei v Coastal Int'l Sec., Inc. (ED Va 2014) 69 F Supp 3d 566, 57

§1.15 a. Balancing of Equities Test

The Ninth Circuit has adopted a balancing of the equities as the "true test" of whether an entity is a
successor-in-interest of a covered employer. Sullivan v Dollar Tree Stores, Inc. (9th Cir 2010) 623 F3d
770, 783. Under this three-part test, courts consider the following factors in making a successor-in-
interest determination (623 F3d at 783):
 The interests of the plaintiff employee;
 The interests of the defendant employer; and
 The federal policy goals of the statute

§1.16 b. FMLA Regulations

To assist in the balancing of the equities test, the FMLA regulations direct courts to consider the same
factors used under Title VII of the Civil Rights Act of 1964 (42 USC §§2000e—2000e–17) and
the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) (38 USC §§2021–2023), with
the exception of Title VII's factor of whether the successor-in-interest had notice of the employee's claim
(although notice may be relevant in determining the successor's liability for violations of its predecessor).
29 CFR §825.107(a). (Note that the FMLA regulations misidentify the VEVRAA as the Vietnam Era
Veterans' Adjustment Act.) Those factors include the following (29 CFR §825.107(a)(1)–(8)):
 Substantial continuity of the same business operations;
 Use of the same plant;
 Continuity of the workforce;
  Similarity of jobs and working conditions;
 Similarity of supervisory personnel;
 Similarity of machinery, equipment, and production methods;
 Similarity of products or services; and
 The ability of the predecessor to provide relief.
These factors are not themselves the test for successor liability, but rather are simply factors a court
should consider when applying the balancing of the equities test. Cobb v Contract Transp., Inc. (6th Cir
2006) 452 F3d 543, 554.

NOTE: In cases in which the claim arises after the employee has transitioned from a predecessor to a
successor, courts have deemed the final factor (the ability of the predecessor to provide relief) to be
inapplicable because "[a] former employer cannot grant leave to a person no longer employed by
it." Sullivan v Dollar Tree Stores, Inc. (9th Cir 2010) 623 F3d 770, 786.

The determination is based on the totality of the circumstances rather than application of a single
factor. 29 CFR §825.107(b). In addition, these factors are not entirely independent because certain facts
may be relevant to more than one factor. Sullivan, 623 F3d at 783 n7 ("The analysis is holistic and does
not depend on a rigid tally of factors in support and factors in opposition")

§1.16A c. Merger or Transfer of Assets Not Required

A merger or transfer of assets is not a precondition to a finding of successor liability, although it can be
a factor for consideration. Cobb v Contract Transp., Inc. (6th Cir 2006) 452 F3d 543, 556.

§1.17 d. Employee of Successor Has Continuous Entitlements

An employee of a successor-in-interest has the same FMLA entitlements as if his or her employment
was "continuous employment by a single employer." 29 CFR §825.107(c); see Grace v USCAR (6th Cir
2008) 521 F3d 655, 671 (plaintiff was eligible to take FMLA leave despite having worked for successor-in-
interest for only 11 months). In this regard, the FMLA regulations note that a successor-in-interest, even
though it may not be a covered employer under the FMLA, must nonetheless grant leave to an eligible
employee who had provided appropriate notice to the predecessor or continue an employee's leave that
began while that employee was employed by the predecessor, including maintenance of group health
benefits during the leave and reinstatement when the leave ends. In addition, a successor that is itself a
covered employer under the FMLA must count periods of employment and hours of service with the
predecessor for purposes of determining employee eligibility for FMLA leave. 29 CFR §825.107(c)

§1.18 4. Joint Employers

Two or more businesses that exercise some control over the work or working conditions of an
employee may qualify as joint employers under the FMLA and the CFRA. Joint employers need not be
formally related; they may be separate and distinct entities with separate owners, managers, and
facilities. 29 CFR §825.106(a); 2 Cal Code Regs §11087(d)(3). A common example of a joint employment
relationship is the one between a temporary placement agency and the employer. 29 CFR
§825.106(b)(1); see Grace v USCAR (6th Cir 2008) 521 F3d 655, 667 (staffing agency and client
employer were joint employers when agency managed plaintiff's payroll and benefits and client
supervised plaintiff's everyday work responsibilities); Moreau v Air France (9th Cir 2003) 356 F3d 942,
950 (Air France and ground handling, catering, and cargo handling services companies were not joint
employers because Air France lacked ability to hire and fire services companies' employees; did not
determine their rate of pay; kept no employment records for them; and did not set or control their work
schedules, working conditions, or conditions on which they would receive payment).
If a joint employment relationship exists, employees jointly employed are counted by both employers in
determining both employer coverage and employee eligibility, without regard to the payroll on which the
employees are maintained. 29 CFR §825.106(d); 2 Cal Code Regs §11087(e)(4)(B).
The FMLA regulations provide as an example an employer who jointly employs 15 workers from a
temporary placement agency and 40 permanent workers. In that case, the employer would be covered by
the FMLA (and the CFRA) because the employer would exceed the 50-employee threshold. 29 CFR
§825.106(d). See FMLA Advisory Opinion 2004–1-A (providing examples).

a. Determining Existence of Joint Employment Relationship

§1.19 (1) FMLA/CFRA Regulations

The FMLA and CFRA regulations direct that the determination of whether a joint employment
relationship exists is not dependent on the application of any single factor; rather, it is based on the entire
relationship viewed in its totality and the "economic realities" of the situation. 29 CFR §825.106(b)(1); 2
Cal Code Regs §11087(d)(3). When an employee performs work that simultaneously benefits two or more
employers, or works for two or more employers at different times during the work week, a joint
employment relationship will "generally" be considered to exist if
 There is an arrangement between the employers to share an employee's services or to
interchange the employee;
 One employer acts directly or indirectly in the interest of the other employer in relation to the
employee; or
 The employers are not completely disassociated with respect to the employee's employment and
may be deemed to share control of the employee, directly or indirectly, because one employer
controls, is controlled by, or is under common control with the other employer.
29 CFR §825.106(a)(1)–(3); 2 Cal Code Regs §11087(d)(3)(A)–(C).

NOTE: It is likely that the NPLA will use these same rules in determining the existence of a joint
employment relationship. See Govt C §12945.6(j) (directing Fair Employment and Housing Council
(FEHC) to incorporate NPLA into CFRA regulations to extent those regulations are within scope of,
and not inconsistent with, NPLA). The FEHC's proposed amendments are available
at [Link]

§1.20 (2) Moreau v Air France Factors

In Moreau v Air France (9th Cir 2003) 356 F3d 942, the Ninth Circuit looked to the Fair Labor
Standards Act of 1938 (FLSA) (29 USC §§201–219) and the Migrant and Seasonal Agricultural Worker
Protection Act (AWPA) (29 USC §§1801–1872) for additional factors to consider in making a joint
employer determination.
First, the court noted that under the FLSA, the determination required consideration of whether the
employer
  Had the power to hire and fire employees;
 Supervised and controlled employee work schedules or conditions of payment;
 Determined the rate and method of payment; and
 Maintained employment records.
Moreau, 356 F3d at 947.
Second, the court looked to both regulatory and nonregulatory factors under the AWPA. The AWPA's
regulatory factors (which are similar to the FLSA factors) include the following:
 The nature and degree of control of the workers;
 The degree of supervision, direct or indirect, of the work;
 The power to determine the pay rates or the methods of payment of the workers;
 The right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers;
and
 Preparation of payroll and payment of wages.
Moreau, 356 F3d at 947, citing 29 CFR §500.20(h)(4). In addition, there are "a number of 'non-regulatory'
factors that may be relevant to deciding whether a joint employment relationship exists," such as
 Whether the work was a specialty job on the production line;
 Whether responsibility under the contracts between a labor contractor and an employer passes
from one labor contractor to another without material changes;
 Whether the premises and equipment of the employer are used for the work;
 Whether the employees had a business organization that could or did shift as a unit from one
worksite to another;
 Whether the work was piecework and not work that required initiative, judgment, or foresight;
 Whether the employee had an opportunity for profit or loss depending on the alleged employee's
managerial skill;
 Whether there was permanence in the working relationship; and
 Whether the service rendered is an integral part of the alleged employer's business.
Moreau, 356 F3d at 947, citing Torres-Lopez v May (9th Cir 1997) 111 F3d 633, 640.
Finally, the court in Moreau identified two additional factors to consider: the use of shared premises
and overtime reimbursement. Moreau, 356 F3d at 952.

§1.21 b. Primary Employer Provides Leave and Benefits

In joint employment situations, the primary employer is responsible for giving required notices to the
employee, providing leave and benefits, and reinstating the employee. 29 CFR §825.106(c), (e). For
example, a temporary placement agency is most commonly the primary employer and thus would be
responsible for providing leave benefits to joint employees. 29 CFR §825.106(c); see Grace v
USCAR (6th Cir 2008) 521 F3d 655, 669 (employee need only provide notice of need for leave to primary
employer to trigger potential liability for both employers).
Factors to be considered in determining which employer is the primary employer include (29 CFR
§825.106(c))
 The authority to hire and fire;
 The assignment or placement of the employee;
 Handling payroll; and
 Providing employee benefits.
 The secondary employer may carry a conditional job-reinstatement duty. For example, a secondary
employer "is responsible for accepting the employee returning from FMLA leave in place of the
replacement employee if the secondary employer continues to utilize an employee from the temporary
placement agency, and the agency chooses to place the employee with the secondary employer." 29
CFR §825.106(e). However, if the placement agency does not choose to place the employee with the
secondary employer at the end of an employee's leave, then the secondary employer has no obligation to
reinstate that employee. Cuellar v Keppel Amfels, LLC (5th Cir 2013) 731 F3d 342, 347 (staffing agency
employee had no right to reinstatement when secondary employer terminated her during FMLA leave and
agency did not request her reinstatement on return from leave).
In addition, regardless of whether it is itself a covered employer, the secondary employer must comply
with the FMLA's prohibited acts provisions (e.g., not interfering with an employee's use of FMLA rights)
with respect to its jointly employed employees. 29 CFR §825.106(e); see Grace, 521 F3d at 676
(secondary employer was potentially liable under FMLA for failing to reinstate plaintiff whether or not it
had 50 or more employees)

§1.22 5. Integrated Employers

Under the FMLA, two or more separate entities may be considered parts of a single employer if they
satisfy the "integrated employer test." When the test is met, the employees of all entities comprising the
integrated employer are counted to determine employer coverage and employee eligibility under
the FMLA. 29 CFR §825.104(c)(2). Factors to be considered include the following (29 CFR
§825.104(c)(2)(i)–(iv)):
 Common management;
 Interrelation between operations;
 Centralized control of labor relations; and
 Degree of common ownership or financial control.
The totality of the relationship between the entities is reviewed to determine whether they should be
deemed a single employer; no single criterion is dispositive. 29 CFR §825.104(c)(2); Demyanovich v
Cadon Plating & Coatings, LLC (6th Cir 2014) 747 F3d 419, 428 ("No single factor among the four is
determinative, and all four need not be present in every case to conclude that two entities are
integrated").
For examples of application of the integrated employer test, see Morrison v Magic Carpet
Aviation (11th Cir 2004) 383 F3d 1253, 1257 (employers not integrated when employee established only
common ownership); Skinner v Legal Advocacy Ctr. (MD Fla, Oct. 21, 2013, No. 6:11–cv–1760–Orl–
37KRS) 2013 US Dist Lexis 150845 (no integrated enterprise when two factors favored defendants, one
favored plaintiff, and one was neutral); Dooling v Bank of the W. (ED Tex, July 17, 2013, No. 4:11–cv–
00576) 2013 US Dist Lexis 99618 (finding genuine issue of material fact whether employers who were not
joint employers were nevertheless integrated employers).
NOTE: Neither the CFRA nor its implementing regulations address integrated employers. However,
the FMLA regulations on this subject should be incorporated by reference to the extent that they are
within the scope of the CFRA and not inconsistent with the CFRA regulations. See 2 Cal Code Regs
§11096. See also Laird v Capital Cities/ABC, Inc. (1998) 68 CA4th 727, 737 (applying federal
integrated employer test in FEHA case).
§1.23 6. Person Acting in Interest of Employer

A covered employer includes "any person acting, directly or indirectly, in the interest of a covered
employer to any of the employees of the employer." 29 USC §2611(4)(A)(ii)(II); 29 CFR §§825.102,
825.104(a). Thus, individuals such as corporate officers may be individually liable for violations of
the FMLA. 29 CFR §825.104(d). Although the Ninth Circuit has not yet determined whether this may also
include supervisors, some district courts have concluded that it does. See Morrow v Putnam (D Nev
2001) 142 F Supp 2d 1271, 1272; Mercer v Borden (CD Cal 1998) 11 F Supp 2d 1190, 1191; Sutton v
Derosia (ED Cal, Oct. 12, 2012, No. 1:11–cv–01426–LJO–JLT) 2012 US Dist Lexis 147434, *14.

§1.24 B. Public Employers

The FMLA covers the federal and state governments as well as federal, state, and local public
agencies, regardless of the number of employees. 29 USC §2611(4)(A)(iii); 29 CFR §825.108(a), (d).
Public agencies are deemed to be engaged in commerce or in an industry or activity affecting commerce.
29 USC §2611(4)(B).

NOTE: Under the doctrine of sovereign immunity, states and state agencies are immune from suits for
money damages under the FMLA's "self-care" provision (i.e., the provision entitling an employee to
leave because of his or her own serious health condition). Coleman v Court of Appeals (2012) 566
US 30, 33, 132 S Ct 1327. There is a split of authority regarding whether the doctrine also extends
to equitable, prospective relief such as reinstatement. Compare Diaz v Michigan Dep't of
Corrections (6th Cir 2013) 703 F3d 956, 964 (reinstatement claim not barred by sovereign
immunity), with Bryant v Texas Dep't of Aging & Disability Servs. (5th Cir 2015) 781 F3d 764, 769
(reinstatement claim barred by sovereign immunity). Sovereign immunity, however, does not bar
suits for money damages under the FMLA's "family care provisions" (i.e., the provisions entitling an
employee to leave to care for a family member with a serious health condition or because of the
birth or adoption of a child). Nevada Dep't of Human Resources v Hibbs (2003) 538 US 721, 725,
123 S Ct 1972.

The CFRA covers the state, counties, and all state and local agencies regardless of the number of
employees. Govt C §12945.2(c)(2)(B); 2 Cal Code Regs §11087(d)

§1.25 C. Elementary and Secondary Schools

Public and private elementary and secondary schools as well as public school boards are covered
employers under the FMLA without regard to the number of their employees. 29 CFR §§825.104(a),
825.600(a)–(b). Note that employees of these educational institutions must still meet all
the FMLA eligibility requirements, including employment at a worksite where at least 50 employees are
employed within 75 miles. 29 CFR §825.600(b). See §§1.26–1.37

III. ELIGIBLE EMPLOYEES

§1.26 A. General Requirements

To qualify for leave and other benefits under the FMLA or the CFRA, an employee must meet all of the
following requirements:
 Must have been employed by the employer for at least 12 months (see §§1.27–1.29);
  Must have worked for at least 1250 hours during the 12-month period immediately preceding the
first day of leave (see §§1.30–1.34); and
 Must work at a worksite where his or her employer has at least 50 employees within 75 miles of
that worksite (see §§1.35–1.37).
29 USC §2611(2)(A); 29 CFR §825.110(a); Govt C §12945.2(a)–(b); 2 Cal Code Regs §11087(e).
To qualify for leave under the NPLA, the above requirements are the same except that the employee
must work at a worksite where the employer employs at least 20, but not more than 49, employees. Govt
C §12945.6(a)(1).
Whether an employee meets the eligibility requirements is not a jurisdictional limitation. Rather, these
requirements are elements of the plaintiff's claim for relief. Minard v ITC Deltacom Communications,
Inc. (5th Cir 2006) 447 F3d 352, 356 (50-employee requirement is not jurisdictional); Ghawanmeh v
Islamic Saudi Academy (D DC 2009) 672 F Supp 2d 3, 12 (1250-hour work requirement is not
jurisdictional).

§1.27 1. Employed for 12 Months

To be eligible under the FMLA or the CFRA, an employee must have been employed by the employer
for at least 12 months. 29 CFR §825.110(a)(1); 2 Cal Code Regs §11087(e). Note that the requirement is
not that the employee be employed for 12 consecutive months; rather, the employee must only have
been employed for an aggregated total of 12 months (subject to the exception regarding counting time
before a 7-year break in service; see §1.29). 29 CFR §825.110(b)(3); 2 Cal Code Regs §11087(e). Thus,
an employee who has only sporadically worked for an employer may nonetheless be eligible
for FMLA/CFRA leave if his or her aggregated time being employed by the employer is at least 12
months.
If an employee is maintained on the payroll for any portion of a week, the entire week counts as a week
of employment. Also counted are any periods of paid or unpaid leave (e.g., sick leave, vacation,
pregnancy disability leave, military service) during which other benefits or compensation are provided by
the employer (e.g., workers' compensation, group health plan benefits). 29 CFR §825.110(b)(2)(i), (b)(3);
2 Cal Code Regs §11087(e)(5). An employee may be on non-FMLA/CFRA leave at the time he or she
meets the 12-month eligibility requirement. 29 CFR §825.110(d); 2 Cal Code Regs §11087(e)(5).

NOTE: It is likely that the NPLA will use these same rules in determining whether an employee has been
employed for at least 12 months. See Govt C §12945.6(j) (directing Fair Employment and Housing
Council (FEHC) to incorporate NPLA into CFRA regulations to extent those regulations are within
scope of, and not inconsistent with, NPLA). The FEHC's proposed amendments are available
at [Link]

§1.28 a. Determined at Start of Leave

The determination of whether an employee meets the 12-month length-of-service requirement is made
as of the date that the leave starts or is scheduled to start. 29 CFR §825.110(d); 2 Cal Code Regs
§11087(e). If an employee is on non-FMLA/CFRA leave at the time that he or she meets the 12-month
eligibility requirement, any portion of the leave taken for an FMLA- or CFRA-qualifying reason after
meeting the eligibility requirement may be designated as FMLA or CFRA leave. 29 CFR §825.110(d); 2
Cal Code Regs §11087(e)(5). But see Pereda v Brookdale Sr. Living Communities, Inc. (11th Cir 2012)
666 F3d 1269, 1275 (when not-yet-eligible employee became pregnant and told her employer that she
would be requesting FMLA leave after birth of her child, at which point she would be eligible,
the FMLA protected her pre-eligibility request for post-eligibility maternity leave). See also Govt C
§12945.6(j) (directing Fair Employment and Housing Council (FEHC) to
incorporate NPLA into CFRA regulations to extent those regulations are within scope of, and not
inconsistent with, NPLA).

§1.29 b. Effect of 7-Year Break in Service

Under the FMLA and the CFRA, an employer need not count an employee's periods of employment
occurring before a continuous break in service of 7 years or more in determining whether the employee
has met the 12-month length-of-service requirement. 29 CFR §825.110(b)(1); 2 Cal Code Regs
§11087(e)(2). Exceptions to this rule occur when the break in service results from an employee's
fulfillment of covered service under the Uniformed Services Employment and Reemployment Rights Act
of 1994 (USERRA) (38 USC §§4301–4335) or when a written agreement, including a collective
bargaining agreement, exists concerning the employer's intention to rehire the employee after the break
in service. 29 CFR §825.110(b)(2); 2 Cal Code Regs §11087(e)(2). In addition, an employer may
consider employment before a break in service of more than 7 years, provided that it does so uniformly
with respect to all employees with similar breaks. 29 CFR §825.110(b)(4); 2 Cal Code Regs §11087(e)(2).
See Govt C §12945.6(j) (directing Fair Employment and Housing Council (FEHC) to
incorporate NPLA into CFRA regulations to extent those regulations are within scope of, and not
inconsistent with, NPLA).

§1.30 2. Worked at Least 1250 Hours

To be eligible under the FMLA, CFRA, or NPLA, an employee must have worked at least 1250 hours
during the 12-month period immediately preceding the first day of leave. 29 CFR §825.110(a)(2); Govt C
§§12945.2(a), 12945.6(a)(1); 2 Cal Code Regs §11087(e). The determination of whether an employee
meets this hours-of-service requirement is made as of the date the leave is to start. 29 CFR §825.110(d);
2 Cal Code Regs §11087(e).
NOTE: If an employee takes pregnancy disability leave under California's Pregnancy Disability Leave
Law and then wants to take bonding-time leave under the CFRA immediately after the end of her
pregnancy disability leave, the 12-month period during which she must have worked 1250 hours is
measured as of the first day of the employee's pregnancy disability leave, not the first day of the
subsequent CFRA or NPLA leave. 2 Cal Code Regs §11087(e)(3). See Govt C §12945.6(j)
(directing Fair Employment and Housing Council (FEHC) to
incorporate NPLA into CFRA regulations to extent those regulations are within scope of, and not
inconsistent with, NPLA).

§1.31 a. Standards for Determining Hours

FMLA. The FMLA adopts the FLSA's standard for determining compensable hours worked (i.e., 29
USC §207) to determine whether an employee satisfies the hours-of-service requirement. 29 USC
§2611(2)(C); see 29 CFR §825.110(c)(1) ("The determining factor is the number of hours an employee
has worked for the employer within the meaning of the FLSA.… Any accurate accounting of actual hours
worked under FLSA's principles may be used") (emphasis added). Under this FLSA standard, an
employer need not count the time that an employee has spent on paid vacation and sick leave or on
unpaid leave in determining whether an employee has met the 1250-hours-of-service
requirement. Robbins v Bureau of Nat'l Affairs, Inc. (D DC 1995) 896 F Supp 18, 21. But see 29 CFR
§825.110(d) (employee may be on non-FMLA leave at time he or she meets 12-month eligibility
requirement).
If an employer does not keep accurate records of hours worked by an employee (e.g., exempt
employees such as executive, administrative, or professional employees), the employer has the burden of
showing that the employee did not work the requisite hours. 29 CFR §825.110(c)(3).
CFRA/NPLA. The CFRA and NPLA provide that the determination of whether an employee has
"actually worked" the requisite 1250 hours during the 12 months immediately preceding the start of leave
is made according to the standard under the California Labor Code and Industrial Welfare Commission
(IWC) Wage Orders. 2 Cal Code Regs §11087(e). See Govt C §12945.6(j) (directing Fair Employment
and Housing Council (FEHC) to incorporate NPLA into CFRA regulations to extent those regulations are
within scope of, and not inconsistent with, NPLA).
NOTE: If an employee takes pregnancy disability leave under the PDLL, and then takes CFRA leave to
bond with her newborn immediately thereafter, the 12-month period in which she must have worked
1250 hours is that period immediately preceding the first day of her pregnancy disability leave, not
the first day of the subsequent CFRA leave. 2 Cal Code Regs §11087(e)(3).

§1.32 b. Effect of Employee's Military Service

An employer must credit an employee returning from service covered under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) (38 USC §§4301–4335) with the hours of
service that he or she would have performed but for the military service in determining whether the
employee meets the 1250-hours-of-service requirement. 29 CFR §825.110(c)(2).

§1.33 c. Teachers on Academic Year

Teachers who work an academic year less than 12 months must still meet the threshold of 1250 work
hours in 12 months to be eligible for CFRA or NPLA leave. 2 Cal Code Regs §11090(e)(2). See Govt C
§12945.6(j) (directing Fair Employment and Housing Council (FEHC) to
incorporate NPLA into CFRA regulations to extent those regulations are within scope of, and not
inconsistent with, NPLA). Under the FMLA, certain full-time teachers are presumed to have worked the
required number of hours, taking into account hours worked outside the classroom, unless the employer
can demonstrate otherwise. The employer must be able to clearly demonstrate that full-time teachers
(defined in 29 CFR §825.102) of an elementary or secondary school system, or an institution of higher
education, or other educational establishment or institution, who often work outside the classroom or at
their homes, did not work 1250 hours during the previous 12 months in order to claim that the teachers
are not eligible for FMLA leave. 29 CFR §825.110(c)(3).

§1.34 d. Airline Flight Crews

 Under the FMLA, special rules apply in determining whether an airline flight crew employee satisfies
the 1250-hours-of-service requirement. Such an employee satisfies the requirement if, during the
previous 12-month period, the employee (29 CFR §825.801(b))
 Worked or was paid for at least 60 percent of his or her "applicable monthly guarantee"; and
 Worked or was paid for at least 504 hours.
An "applicable monthly guarantee" is generally defined as "the minimum number of hours for which an
employer has agreed to schedule [the] employee for any given month"; for employees on reserve status,
it is defined as "the number of hours for which an employer has agreed to pay the employee for any given
month." 29 CFR §825.801(b)(1).
Hours worked are the employee's duty hours during the previous 12 months. Paid hours are those for
which the employee has received wages during the previous 12 months. Neither hours worked nor paid
hours includes time for commuting, vacation, or medical or sick leave. 29 CFR §825.801(b)(2). An airline
flight crew employee returning from service covered by USERRA must be credited with the amount of
time that he or she would have worked, but for the service; this amount can be tabulated using the
employee's pre-service work history. 29 CFR §825.801(c).
In the event that an employer does not maintain records of hours worked or hours paid, the burden is
on the employer to show that the employee has not worked or been paid sufficiently to meet the hours
requirement. 29 CFR §825.801(d)

§1.35 3. Worksite With 50 Employees Within 75 Miles

An employee must be employed at a worksite where at least 50 full- or part-time employees are
employed (i.e., maintained on the employer's payroll) within 75 miles of that worksite. 29 CFR
§825.111(c); 2 Cal Code Regs §11087(e)(4). The 75 miles is measured in surface miles, using surface
transportation (i.e., public streets, roads, highways, and waterways); if surface transportation is
unavailable between worksites, the distance is measured by using the most frequently used method of
transportation (e.g., airline miles). 29 CFR §825.111(b); 2 Cal Code Regs §11087(e)(4); see Hackworth v
Progressive Cas. Ins. Co. (10th Cir 2006) 468 F3d 722, 731 (employees at worksite 75.6 surface miles
from plaintiff's worksite could not be counted in determining whether plaintiff was eligible under FMLA).
If a joint employment relationship exists, employees jointly employed are counted in determining
whether an employee meets the 50-employees-within-75-miles threshold. 29 CFR §825.106(d); 2 Cal
Code Regs §11087(e)(4)(B).
Whether 50 employees work within a 75-mile radius is calculated on the date that an employee gives
notice of his or her need for leave. 29 CFR §825.110(e); 2 Cal Code Regs §11087(e)(4).
Under the NPLA, an employee must be employed at a worksite where at least 20 (but not more than
49) full- or part-time employees are employed within 75 miles of that worksite. Govt C §12945.6(a)(1), (j).

§1.36 a. Subsequent Change in Number of Employees Irrelevant

Once an employee has given notice of a need for FMLA/CFRA leave, and the employer determines
that the employee meets the worksite requirement, the employee remains eligible for leave for the reason
given in the original notice even if the number of employees subsequently drops below 50 and even if the
drop is anticipated by the employer. 29 CFR §825.110(e); 2 Cal Code Regs §11087(e)(4)(C). For
example, if an employee meets the worksite requirement when he or she gives notice of the need for
leave, the employer may not deny the request on the ground that the employee will no longer meet the
worksite requirement (e.g., because of a planned reduction in force) on the date that the leave is
scheduled to begin. In addition, if the employee is already on leave when the number of employees drops
below 50, the employer may not cut short the leave. Finally, if an employee has been taking intermittent
leave, the employer may not deny further leave for that same reason after a drop in the requisite number
of employees; however, in that case, the employee would not be eligible for subsequent leave requested
for a different qualifying reason. See 29 CFR §825.110(e); 2 Cal Code Regs §11087(e)(4)(C). See
also Govt C §12945.6(j) (directing Fair Employment and Housing Council (FEHC) to
incorporate NPLA into CFRA regulations to extent those regulations are within scope of, and not
inconsistent with, NPLA).

§1.37 b. Worksite Defined

An employee's "worksite" is ordinarily the site to which he or she reports. It may be a single location or
a group of contiguous locations such as a campus or a business park. 29 CFR §825.111(a); 2 Cal Code
Regs §11087(e)(4).
In cases in which an employee does not report to any site (e.g., he or she works exclusively from
home), the worksite is the site from which the employee's work is assigned. 29 CFR §825.111(a); see 2
Cal Code Regs §11087(e)(4)(A) (if salesperson who works from home in California receives assignments
from employer's headquarters in New York, New York headquarters would be employee's worksite from
which there must be 50 employees within 75 miles).
For employees with no fixed worksite (e.g., truck drivers, constructions workers), the worksite is the
site to which they are assigned as their "home base," from which their work is assigned, or to which they
report. 29 CFR §825.111(a)(2); 2 Cal Code Regs §11087(e)(4)(A).
When an employee has joint employers, the worksite is the primary employer's office from which the
employee is assigned or reports. However, if the employee has physically worked for at least 1 year at a
secondary employer's facility, that facility will be deemed the employee's worksite. 29 CFR
§825.111(a)(3); 2 Cal Code Regs §11087(e)(4)(B). On joint employers, see §§1.18

§1.38 4. Requalification

Under the CFRA or NPLA, once the employee meets the 12-month length-of-service and 1250-hours-
worked eligibility criteria and takes leave for a qualifying reason, he or she does not have to requalify, in
terms of the numbers of hours worked, to take additional leave for the same qualifying event during the
employee's 12-month leave period. 2 Cal Code Regs §11087(e)(1). See Govt C §12945.6(j) (directing
Fair Employment and Housing Council (FEHC) to incorporate NPLA into CFRA regulations to extent
those regulations are within scope of, and not inconsistent with, NPLA).

§1.39 B. Former Employees

A former employee may qualify as an "employee" under the FMLA if the employer refused to rehire him
or her in retaliation for taking FMLA leave when previously employed. Smith v BellSouth
Telecommunications, Inc. (11th Cir 2001) 273 F3d 1303, 1314. See 29 CFR §825.220(c) (FMLA prohibits
using taking of leave as negative factor in hiring); 2 Cal Code Regs §11094(b) (same under CFRA).
When a resignation is voluntary, a former employee cannot claim an adverse employment action under
the FMLA. When the resignation is involuntary, a claim may proceed on a theory of constructive
discharge. See Hammon v DHL Airways, Inc. (6th Cir 1999) 165 F3d 441, 447. To establish constructive
discharge under California law, "an employee must plead and prove that the employer either intentionally
created or knowingly permitted working conditions that were so intolerable or aggravated at the time of
the employee's resignation that a reasonable employer would realize that a reasonable person in the
employee's position would be compelled to resign." Vasquez v Franklin Mgmt. Real Estate Fund,
Inc. (2013) 222 CA4th 819, 826. For further discussion of constructive discharge, see Wrongful
Employment Termination Practice: Discrimination, Harassment, and Retaliation §§9.78–9.80 (2d ed Cal
CEB)

§1.40 C. Estoppel When Employer Misrepresents Employee's Eligibility

The Ninth Circuit has not yet recognized the availability of equitable estoppel to defeat a defense
of FMLA ineligibility. Shaaban v Covenant Aviation Sec. (ND Cal, Nov. 10, 2009, No. CV 08–03339 CRB)
2009 US Dist Lexis 104996, *10 ("This Court has not found, nor has either party identified, any Ninth
Circuit authority applying equitable estoppel in FMLA cases"); Farina v Compuware Corp. (D Ariz 2003)
256 F Supp 2d 1033, 1057 (same). But see Sims v Alameda-Contra Costa Transit Dist. (ND Cal 1998) 2
F Supp 2d 1253, 1255 ("where the employer did not seek a subsequent medical opinion within a
reasonable time period after the employee submitted his initial certification of a serious health condition,
the employer may not now challenge here the validity of the initial medical certification submitted by the
employee").
However, several circuit courts of appeals have applied the doctrine of equitable estoppel
to FMLA eligibility cases. See, e.g., Dobrowski v Jay Dee Contractors, Inc. (6th Cir 2009) 571 F3d 551,
556; Peters v Gilead Sciences, Inc. (7th Cir 2008) 533 F3d 594, 599 n6 (noting cases); Minard v ITC
Deltacom Communications, Inc. (5th Cir 2006) 447 F3d 352, 359. In Minard, the Fifth Circuit held that an
employer may be estopped from asserting a defense of FMLA ineligibility if (447 F3d at 358)
 The employer made a definite misrepresentation of fact regarding the employee's eligibility
for FMLA leave;
 The employer had reason to believe that the employee would rely on the misrepresentation; and
 The employee reasonably did rely on the misrepresentation to his or her detriment.
The employee need not show that the employer had an "intent to deceive." Minard v ITC Deltacom
Communications, Inc., supra. But see Hearst v Progressive Foam Techs., Inc. (8th Cir 2011) 641 F3d
276, 279 (affirming summary judgment for employer who mistakenly told employee he was eligible before
his anniversary date and then counted his pre-FMLA time off as FMLA leave because his medical
condition would have rendered him unable to work for more than 12 weeks).

IV. QUALIFYING REASONS FOR LEAVE

§1.41 A. Serious Health Conditions, Child Bonding, and Military Exigencies

Covered employers must grant FMLA and CFRA leave to eligible employees for
 The birth of a son or daughter or to care for the employee's newborn son or daughter;
 The placement of a son or daughter with the employee for adoption or foster care;
 Care of the employee's spouse, registered domestic partner (CFRA only), son or daughter, or
parent who has a serious health condition; or
  The employee's own serious health condition that renders the employee unable to perform one or
more of the essential functions of the employee's position.
29 USC §2612(a); 29 CFR §825.112(a)(1)–(4); Govt C §12945.2(a); 2 Cal Code Regs §11087(h), (l).
In addition, covered employers must grant FMLA leave to eligible employees for
 A "qualifying exigency" arising out of the fact that the employee's son or daughter, parent, or
spouse is on "covered active duty" in the U.S. Armed Forces, or has been notified of an
impending call to "covered active duty" status (29 USC §2612(a)(1)(E)); or
 Care of a seriously ill or injured service member or veteran (29 USC §2612(a)(3)).
29 USC §2612(a); 29 CFR §825.112(a)(5)–(6).
Covered employers must grant NPLA leave to eligible employees to bond with a new child within 1
year of the child's birth, adoption, or foster care placement. Govt C §12945.6(a)(1).

§1.42 1. California Variation: Pregnancy Exception

Under the CFRA, the phrase "employee's own serious health condition" does not include the
employee's disability caused by pregnancy, childbirth, or related medical conditions. Govt C
§12945.2(c)(3)(C). Thus, in California, eligible employees are entitled to up to 4 months of pregnancy
disability leave under the PDLL in addition to up to 12 weeks of CFRA leave to bond with a newborn child,
which does not start until after the employee is no longer disabled by the pregnancy. Govt C
§12945(a)(1); 2 Cal Code Regs §11093. If the employee has already used a portion of the 12 weeks
during the leave year for some other CFRA purpose, only the remainder is available for the employee's
use to bond with the newborn child.

§1.43 2. California Variation: Domestic Partners

Under the CFRA, registered domestic partners as defined in Fam C §§297–297.5 are treated the same
as spouses. 2 Cal Code Regs §11087(r). As a result, an eligible employee can use CFRA leave for (2 Cal
Code Regs §11087(h), (l))
 Care of a domestic partner with a serious health condition;
 The birth of a child of the employee's domestic partner (or arrival of a child placed by adoption or
foster care); or
 Care of the domestic partner's child with a serious health condition.
The FMLA does not treat domestic partners as spouses, and thus leave under the FMLA may not be
used to care for a registered domestic partner with a serious health condition. A domestic partner's son or
daughter, however, may qualify as a "child of a person standing in loco parentis." 29 USC §2611(12).
See §1.46. In that case, FMLA leave can be used for the birth of a child of the employee's domestic
partner or to care for that child's serious health condition.
To qualify in California as "registered domestic partners," both individuals must file a declaration of
domestic partnership with the Secretary of State attesting that they meet the following requirements (Fam
C §297(b)):
 Neither is married to someone else or is a member of another domestic partnership;
 They are not related by blood in such a way that would prevent them from being married to each
other;
 They are both capable of consenting to the partnership;
  They are of the same sex or, if they are of opposite sexes, at least one of the partners is over age
62 and eligible for specified Social Security benefits; and
 They are at least 18 years of age.
A person under 18 years of age who otherwise meets the requirements for establishing a domestic
partnership may do so on obtaining a court order. Fam C §297.1.

B. Definitions

§1.44 1. "Spouse"

The FMLA continues to define "spouse" as "a husband or wife, as the case may be." 29 USC
§2611(13). However, following the U.S. Supreme Court's decision in U.S. v Windsor (2013) 570 US 744,
133 S Ct 2675—which held unconstitutional the provisions in the Defense of Marriage Act
(DOMA) limiting the definitions of "marriage" and "spouse" to opposite-sex couples—the U.S. Department
of Labor amended the FMLA regulation's definition of "spouse" to include a same-sex marriage if the
marriage
 "Was entered into in a State that recognizes such marriages"; or,
 "If entered into outside of any State, is valid in the place where entered into and could have been
entered into in at least one State."
29 CFR §§825.102, 825.122(b) (amended effective Mar. 27, 2015). The Court's decision in Obergefell v
Hodges (2015) 576 US ___, 135 S Ct 2584, which broadly held that the Constitution prohibits states from
denying same-sex couples the right to marry, has effectively expanded the FMLA regulation's definition of
"spouse" to include both opposite-sex and same-sex partners, so that all same-sex married couples now
have the right under the FMLA to leave to care for a spouse.
The CFRA defines a "spouse" as a partner in marriage as defined in Fam C §300 or a registered
domestic partner within the meaning of Fam C §§297–297.5. It expressly includes same-sex partners in
marriage. 2 Cal Code Regs §11087(r).

§1.45 2. "Child" or "Son or Daughter"

Under the CFRA, the employee's "child" is a person under the age of 18 (or over the age of 18 but
incapable of self-care because of a mental or physical disability) who is a biological, adopted, or foster
child, a stepchild, a legal ward, or a child of a person standing in the place of a parent. 2 Cal Code Regs
§11087(c).
The FMLA uses the words "son or daughter" instead of "child." For purposes of FMLA leave for birth or
adoption or to care for a son or daughter with a serious health condition, "son or daughter" has the same
definition as "child" under the CFRA and has the same age restrictions. 29 CFR §825.122(d). For
purposes of FMLA leave for a qualifying exigency or to care for a covered service member, a "son or
daughter" may be of any age. 29 CFR §825.122(h)–(i).

§1.46 3. "In Loco Parentis"

Under both the FMLA and the CFRA, a biological or legal relationship between the parent and the child
is unnecessary as long as the parent has day-to-day financial and care obligations to the child or had
such responsibility for the employee when the employee was a child. 29 CFR §825.122(d)(3); 2 Cal Code
Regs §11087(m). See Martin v Brevard County Pub. Schs. (11th Cir 2008) 543 F3d 1261, 1266.
The U.S. Department of Labor has clarified that an in loco parentis relationship exists for FMLA leave
when the employee intends to take on the role of a parent. For example, "a person who will co-parent a
same-sex partner's biological child may take leave for the birth of the child and for bonding." An employee
who intends to assume the responsibilities of a parent need not show that he or she provides both day-to-
day care and financial support in order to establish that he or she stands in loco parentis to the child. A
person may stand in loco parentis to a child even if the child has a biological parent in the home or has
two parents. U.S. Department of Labor, Wage and Hour Division, Administrator's Interpretation No. 2010–
3.

NOTE: If requested by an employer, an employee seeking FMLA leave need only provide a simple
statement that he or she has the requisite in loco parentis relationship. U.S. Department of Labor,
Wage and Hour Division, Administrator's Interpretation No. 2010–3; 29 CFR §825.122(k).

§1.47 4. "Parent"

Under both the FMLA and the CFRA, a "parent" is the employee's biological, foster, or adoptive parent;
a stepparent; a legal guardian; or another person who stood in as a parent (in loco parentis) to the
employee when the employee was a child. "Parent" does not include a parent-in-law. 29 CFR §825.122; 2
Cal Code Regs §11087(m).

§1.48 C. Birth of Child

The FMLA, CFRA, and NPLA provide leave to be with a newborn child, which is commonly called
bonding-time leave. It can only be used during the 12-month period following the birth or placement of the
child beginning on the date of birth or placement. 29 CFR §825.120(a)(1); Govt C §12945.6(a)(1); 2 Cal
Code Regs §11087(h)(1). Under the CFRA, leave for reason of the birth of a child includes "but is not
limited to" bonding with a child after birth. 2 Cal Code Regs §11087(o).
Birth mothers and nonbirth parents, including fathers and same-sex spouses, are entitled
to FMLA/CFRA/NPLA leave to bond with a newborn child. See 29 CFR §825.122(d); 2 Cal Code Regs
§11087(c) (child defined); 29 CFR §825.122(d)(3); 2 Cal Code Regs §11087(m) (in loco parentis).
See Govt C §12945.6(j) (directing Fair Employment and Housing Council (FEHC) to
incorporate NPLA into CFRA regulations to extent those regulations are within scope of, and not
inconsistent with, NPLA). For birth mothers, bonding leave under the CFRA or NPLA typically begins after
recovery from childbirth. For nonbirth parents, bonding leave may begin any time after the child is born
but must conclude within the first year of the child's birth. 2 Cal Code Regs §11090(d). See Govt C
§12945.6(j).
A domestic partner's newborn child may qualify as the employee's child under the FMLA if the
employee is "a person standing in loco parentis." 29 USC §2611(12). See §1.46. If so, FMLA leave can
be used for the birth of a child of the employee's

§1.49 D. Adoptive or Foster Child

The FMLA, CFRA, and NPLA provide leave for the placement with the employee of a child for adoption
or foster care. It can only be used within the first year of the child's placement in the employee's home. 29
CFR §825.121(a); Govt C §12945.6(a)(1); 2 Cal Code Regs §11087(h)(1). FMLA leave may begin before
the child's placement in the home or actual adoption of the child if an employee needs to take time off to
attend counseling sessions, appear in court, consult with his or her attorney or with the doctor of the birth
parent, submit to a physical examination, or travel to another country to complete the adoption. The
source of adoption (e.g., whether from a licensed placement agency or otherwise) is irrelevant to the
employee's eligibility for leave. 29 CFR §825.121(a)(1).

§1.50 E. Employee's Own Serious Health Condition

An eligible employee may take FMLA and CFRA leave for his or her own serious health condition that
makes the employee unable to perform the essential functions of his or her job. 29 CFR §825.112(a)(4); 2
Cal Code Regs §11087(

§1.51 1. "Serious Health Condition"

Under both the FMLA and the CFRA, a "serious health condition" is an illness, injury (including an on-
the-job injury), impairment, or physical or mental condition that involves either (29 CFR §825.113(a); 2
Cal Code Regs §11087(q))
 Inpatient care; or
 Continuing treatment by a health care provider.
Ordinarily, unless complications arise, minor ailments such as the common cold, the flu, earaches,
upset stomach, minor ulcers, headaches, routine dental or orthodontia problems, or periodontal disease
do not qualify as serious health conditions. 29 CFR §825.113(d). However, the flu has been held to be a
serious medical condition when the requirements of the FMLA definition were met. See Miller v AT&T
Corp. (4th Cir 2001) 250 F3d 820, 832 (flu is "serious health condition" if there was incapacity of more
than 3 days and at least one visit to health care provider for treatment); 29 CFR §825.113(a) (more than 3
days' incapacity and subsequent treatment is serious medical condition). Mental illness or allergies may
also be serious health conditions if the FMLA definition is met. 29 CFR §825.113(d).
Conditions for which cosmetic treatments are administered are not serious health conditions unless
inpatient hospital care is required or complications develop. Restorative dental and plastic surgery after
an injury or removal of cancerous growths are serious health conditions provided all other conditions are
met. 29 CFR §825.113(d).
An employee's own lay testimony, in combination with medical evidence, can be sufficient to establish
a "serious medical condition." Schaar v Lehigh Valley Health Servs., Inc. (3d Cir 2010) 598 F3d 156, 161.

§1.52 a. Inpatient Care

Under both the FMLA and the CFRA, "inpatient care" for a serious health condition includes a stay in a
hospital, hospice, or residential medical care facility plus (29 CFR §825.114; 2 Cal Code Regs
§11087(q)(1))
 Any period of incapacity, defined as the inability to work, attend school, or perform other regular
daily activities due to a serious health condition or its treatment or recovery (29 CFR §825.113(b);
2 Cal Code Regs §11087(q)(2)); or
 Any subsequent treatment in connection with the inpatient care.
NOTE: The FMLA requires an overnight stay. 29 CFR §825.114; see Bonkowski v Oberg Indus., Inc. (3d
Cir 2015) 787 F3d 190, 206 (defining "overnight stay" as stay in hospital, hospice, or residential
medical care facility for substantial period of time from one calendar day to next calendar day as
measured by individual's time of admission and discharge). The CFRA only requires that a health
care facility formally admit the employee with the expectation that he or she will remain at least
overnight and occupy a bed, even if it later develops that the employee can be discharged or
transferred to another facility and does not actually remain overnight. 2 Cal Code Regs §11087(q)(1)

§1.53 b. Continuing Treatment

Under the FMLA and CFRA, "continuing treatment" by a health care provider includes any one of the
following circumstances. See 29 CFR §825.115(a)–(e); 2 Cal Code Regs §§11087(q), 11097; Soria v
Univision Radio Los Angeles, Inc. (2016) 5 CA5th 570, 602 (noting that plaintiff can show "continuing
treatment" in more than one way).
More than 3 days' incapacity plus treatment: A period of incapacity of more than 3 consecutive
calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that
also involves (29 CFR §825.115(a); 2 Cal Code Regs §§11087(q), 11097)
 Treatment two or more times, within 30 days of the first day of incapacity (FMLA only;
the CFRA does not require the treatment to occur within 30 days of the first day of incapacity),
unless extenuating circumstances exist, by a health care provider, by a nurse (or physician's
assistant under the CFRA) under direct supervision of a health care provider, or by a provider of
health care services (e.g., physical therapist) under orders of or on referral by a health care
provider; or
 Treatment by a health care provider on at least one occasion that results in a regimen of
continuing treatment under the supervision of the health care provider. A regimen of continuing
treatment includes but is not limited to a course of prescription medication, such as an antibiotic,
or therapy requiring special equipment to alleviate the condition. A regimen of activities that can
be initiated without a visit to a health care provider (such as taking over-the-counter medications,
bed rest, and drinking fluids) is not, on its own, sufficient to constitute "continuing treatment" for
purposes of FMLA leave. See 29 CFR §825.113(c).
NOTE: The FMLA, but not the CFRA, requires the employee's first or only treatment to be an in-person
visit to a health care provider within 7 days of the first day of incapacity. 29 CFR §825.115(a). The
2015 amendments to the CFRA regulations did not incorporate this requirement and so, when
the FMLA and the CFRA both apply to a leave, the employee does not need to be treated within 7
days. See §1.8 (greater benefit applies).
Pregnancy or prenatal care: Any period of incapacity due to pregnancy, for prenatal care, or for a
woman's serious health condition following the birth of a child. 29 CFR §825.115(b); 2 Cal Code Regs
§§11087(q), 11097.
NOTE: An employee's own incapacity due to pregnancy, childbirth, or a related medical condition is not a
qualifying serious health condition under the CFRA. 2 Cal Code Regs §11093(b). See §1.42.
However, an employee incapacitated by pregnancy may qualify for leave under the PDLL. In
addition, an employee may use CFRA leave to care for another person with these conditions.
 The FMLA provides a pregnant woman leave for incapacity due to pregnancy even if she does not
receive treatment from a health care provider during the absence, and even if the absence does not last
for more than 3 consecutive calendar days. For example, a pregnant woman is entitled to FMLA leave if
she is unable to report to work due to severe morning sickness. 29 CFR §§825.115(b), 825.120(a)(4).
Chronic conditions: Any period of incapacity or treatment for incapacity due to a chronic serious
health condition. A chronic serious health condition is one that
 Requires periodic visits (defined by the FMLA as at least twice per year) for treatment by a health
care provider, or by a nurse (or physician's assistant under the CFRA) under direct supervision of
a health care provider;
 Continues over an extended period of time (including recurring episodes of a single underlying
condition); and
 May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes,
epilepsy).
29 CFR §825.115(c); 2 Cal Code Regs §§11087(q), 11097.
An absence for a chronic condition qualifies for FMLA leave even if the employee or family member
does not receive treatment from a health care provider during the absence, and even if the absence does
not last for more than 3 consecutive, full calendar days. 29 CFR §825.115(f).
Permanent or long-term conditions: A period of incapacity that is permanent or long term due to a
condition for which treatment may not be effective (e.g. Alzheimer's, a severe stroke, or a terminal
disease). The employee or family member must be under a health care provider's continuing supervision,
but need not be receiving active treatment. 29 CFR §825.115(d); 2 Cal Code Regs §§11087(q), 11097.
Conditions requiring multiple treatments: Any period of absence to receive multiple treatments
(including recovery from treatments) by a health care provider or by a provider of health care services
under orders or on referral by a health care provider, for
 Restorative surgery after an accident or injury; or
 A condition that would likely result in a period of incapacity of more than 3 consecutive calendar
days in the absence of medical intervention or treatment, such as cancer (e.g., chemotherapy,
radiation), severe arthritis (physical therapy), or kidney disease (dialysis).
29 CFR §825.115(e); 2 Cal Code Regs §§11087(q), 11097.

§1.54 c. Treatment of Substance Abuse

Treatment for substance abuse may be a serious health condition under both the FMLA and the CFRA.
29 CFR §825.119; 2 Cal Code Regs §11087(q). However, such treatment is only covered by the FMLA if
the treatment is by a health care provider or by a provider of health care services on referral by a health
care provider. Absences due to the employee's use of the substance, rather than for treatment for
substance abuse, do not qualify for FMLA leave. 29 CFR §825.119
An employer may not take action against an employee because he or she has exercised his or her
right to take FMLA leave for treatment for substance abuse. However, an employer may terminate an
employee pursuant to an established policy providing that employees may be terminated for substance
abuse, provided that the policy is applied in a nondiscriminatory way and has been communicated to all
employees. An employer may not take action against an employee who is providing care for a family
member receiving treatment for substance abuse. See 29 CFR §825.119.

§1.55 2. Unable to Perform Essential Functions of Job

 To qualify for FMLA or CFRA leave, the employee's own serious health condition must make the
employee unable to perform the functions of his or her job. 29 CFR §825.112(a)(4); 2 Cal Code Regs
§11087(l). An employee is unable to perform the functions of a job when the health care provider finds
that he or she is unable to work at all or is unable to perform "any one" of the essential functions of his or
her job. 29 CFR §825.123(a); 2 Cal Code Regs §11087(l). "Essential functions" are defined by FEHA and
the ADA. See 29 CFR §1630.2(n) (essential functions defined); Govt C §12926(f) (same). For discussion
of the ADA, see Wrongful Employment Termination Practice: Discrimination, Harassment, and
Retaliation, chap 2 (2d ed Cal CEB).
An employee who needs time off from work to receive medical treatment for a serious health condition
is considered to be unable to perform the essential functions of the position during the absence for
treatment. See 29 CFR §825.123.
Under both the FMLA and the CFRA, it is enough to show that the employee is incapable of performing
the functions of the specific job assigned by the employer. General inability to perform essential job
functions is not required. Stekloff v St. John's Mercy Health Sys. (8th Cir 2000) 218 F3d 858, 862 (test
under FMLA should focus on employee's ability to perform those functions in his or her current
environment); Lonicki v Sutter Health Cent. (2008) 43 C4th 201, 216 (plaintiff's ability to perform tasks for
second employer that were virtually identical to those she claimed she was unable to perform for first
employer did not preclude finding that employee was unable to perform the functions of her specific
position with first employer).

F. Family Medical Care

§1.56 1. Spouse, Child, or Parent With Serious Health Condition

Both the FMLA and the CFRA provide leave to care for an employee's spouse, child, or parent with a
serious health condition. 29 CFR §825.112(a)(3). The FMLA uses the words "son" and "daughter" instead
of "child." The CFRA, but not the FMLA, treats registered domestic partners like spouses and therefore
covers the care of a domestic partner with a serious health condition. 2 Cal Code Regs §11087(r)
("spouse" defined). See §1.43.
For definition of "serious health condition," see §§1.51–1.54.

NOTE: Under California's Paid Family Leave (PFL) program, employees may receive partial wage
replacement benefits while taking time off to care for seriously ill spouses, registered domestic
partners, children (regardless of age), parents, parents-in-law, siblings, grandparents, and
grandchildren. Un Ins C §3301(a)(1). See §1.170.

§1.57 2. "Caring For" Defined

CFRA. "Caring for" a family member under the CFRA means that the serious health condition
"warrants the participation of the employee" to provide care during a period of treatment or supervision of
the child, parent, or spouse. "Warrants the participation of the employee" includes, but is not limited to,
providing psychological comfort and arranging third-party care for the child, parent, or spouse, as well as
directly providing, or participating in, the medical care. See 2 Cal Code Regs §11087(a)(1)(D) (medical
certification).
One court has held that helping a parent move to a new home did not qualify as care when the
employee did not directly or indirectly provide or participate in her mother's medical care, and any
psychological comfort was merely a collateral benefit. Pang v Beverly Hosp., Inc. (2000) 79 CA4th 986,
996.
FMLA. "Caring for" a family member under the FMLA includes both physical and psychological care. It
includes assisting with basic medical, hygienic, or nutritional needs or safety, or transporting a family
member to the doctor. It also includes providing psychological comfort and reassurance that would benefit
a seriously ill family member receiving inpatient or home care. 29 CFR §825.124(a). The term also
includes substituting for others who normally care for the family member or covered service member, or
making arrangements for changes in care, such as moving to a nursing home. The employee does not
need to be the only person available to provide care. 29 CFR §825.124(b).
There appears to be a split in the circuits about how to apply 29 CFR §825.124, which was amended in
2013 with minor modifications. See Ballard v Chicago Park Dist. (7th Cir 2014) 741 F3d 838, 841. The
Seventh Circuit has held that as long as the employee attends to a family member's basic medical,
hygienic, or nutritional needs, that employee is caring for the family member, even if that care is not part
of ongoing treatment of the condition. 741 F3d at 842 (employee provided physical and psychological
care for her mother in hospice when traveling with her to Las Vegas, even though trip was not connected
to her mother's ongoing medical treatment). However, the Ninth Circuit has held that caring for a family
member "involves some level of participation in ongoing treatment of that condition." Tellis v Alaska
Airlines (9th Cir 2005) 414 F3d 1045, 1048 (flying cross-country to pick up car and drive back to pregnant
wife did not constitute care); Marchisheck v San Mateo County (9th Cir 1999) 199 F3d 1068, 1076 (taking
child to another country for healthier social environment but where no medical treatment was available did
not constitute care).
The Ninth Circuit has also indicated that the employee must be physically present with the family
member who needs care. Tellis v Alaska Airlines (9th Cir 2005) 414 F3d 1045, 1048 (traveling away from
person needing care is not covered by FMLA); Scamihorn v General Truck Drivers (9th Cir 2002) 282 F3d
1078, 1088 (employee's daily conversations and constant presence in father's life may constitute
participation in father's treatment for depression); Shulman v [Link], Inc. (WD Wash, May 30,
2013, No. C13–247RSM) 2013 US Dist Lexis 76975, *6 (researching possible care options for ill family
member without traveling to be near her is not covered by FMLA).
In Gienapp v Harbor Crest (7th Cir 2014) 756 F3d 527, 531, the Seventh Circuit held that an employee
need not be the "primary caregiver" for an ill family member under the FMLA; the fact that plaintiff cared
for her grandchildren in addition to her seriously ill daughter did not disqualify her from FMLA protection.

G. Qualifying Exigencies

§1.58 1. Twelve Weeks of Family Military Leave

The FMLA allows eligible employees up to 12 work weeks of leave in a 12-month period for "any
qualifying exigency" arising out of the fact that the employee's spouse, son, daughter, or parent (the
"covered military member") is on "covered active duty" or has been notified of an impending call to a
"covered active duty." 29 USC §2612(a)(1)(E); 29 CFR §825.126. For a member of the regular U.S.
Armed Forces, covered active duty or a call to covered active duty means foreign deployment. 29 USC
§2611(14)(A); 29 CFR §825.126(a)(1). For members of the National Guard or the Reserves, it means a
contingency operation. 29 USC §2611(14)(B); 29 CFR §825.126(a)(2). See 10 USC §101(a)(13)
(contingency operation defined).
Military and Veterans Code §395.10 requires that employers with at least 25 employees provide
eligible employees with unpaid, job-protected leave of up to 10 days when the employee's spouse is a
service member temporarily home from deployment. Eligible employees are spouses of service members
who work at least 20 hours a week for an employer. Mil & V C §395.10. An employee must provide his or
her employer with a notice within 2 days of learning that the service member spouse will have a leave and
provide the employer with documentation of the deployment leave. Mil & V C §395.10. For definition of
"spouse" under California law and the FMLA, see §1.44. For discussion of Mil & V C §395.10,
see Advising California Employers and Employees §6.134Q (Cal CEB).

§1.59 2. What Constitutes Qualifying Exigency

Under the FMLA, qualifying exigencies include the following:

Short-notice deployment. The employee may take leave for any issues arising from the fact that the
military member receives notice of an impending call 7 or fewer calendar days before the deployment
date. 29 CFR §825.126(b)(1)(i). This leave may be used for 7 calendar days starting from the date the
military member receives notice of the impending call or order. 29 CFR §825.126(b)(1)(ii).
Military events or related activities. The employee may take leave to attend official military-
sponsored ceremonies or events related to the call or order to covered active duty. 29 CFR
§825.126(b)(2)(i). This category of leave also covers time off to attend family support programs and
informational briefings that the military sponsors or promotes that are related to the call or order to active
duty. 29 CFR §825.126(b)(2)(ii).
Child care and school activities. The employee may take leave for the military member's child
(biological, adopted, foster, stepchild, legal ward, or in loco parentis) who is under 18 (or older and
incapable of self-care because of a disability). 29 CFR §825.126(b)(3). The purpose of this leave is to
arrange for child care, to provide child care, to enroll or transfer a child to a new school or day care, or to
attend meetings with school or child-care staff or counselors when these activities are necessitated by the
call or order to active duty. 29 CFR §825.126(b)(3)(i)–(iv).
Parental care leave. The employee may take leave for a military member's parent (biological,
adopted, foster or stepparent, or in loco parentis) who is incapable of self-care (needing assistance with
activities of daily living). The purpose of the leave is to arrange for care, to provide urgent (not routine)
care, to admit or transfer a parent to a care facility, or to attend meetings with care facility staff when
these activities are necessitated by the call or order to active duty. 29 CFR §825.126(b)(8)(i)–(iv).
Financial and legal arrangements. The employee may take leave to address matters such as
preparing powers of attorney, preparing or updating wills or trusts, or transferring signature authority for a
bank account when these activities are necessitated by the military member's absence. 29 CFR
§825.126(b)(4)(i). This type of leave also may be used for an eligible employee who needs to act as the
military member's representative for the purpose of obtaining military service benefits while the member is
on active duty or within 90 days thereafter. 29 CFR §825.126(b)(4)(ii).
Counseling. The employee may take leave to attend counseling for the eligible employee, the military
member, or a child (biological, foster, adopted, stepchild, or in loco parentis) under 18 (or incapable of
self-care) which arises from the call or order to active duty. 29 CFR §825.126(b)(5).
Rest and recuperation. The employee may take leave to spend time with the military member on
short-term, temporary leave for rest and recuperation during the deployment. 29 CFR §825.126(b)(6).
Post-deployment activities. The employee may take leave to attend ceremonies, briefings, and
events sponsored by the military during the 90-day period following the termination of the military
member's covered active duty. 29 CFR §825.126(b)(7).
Additional activities. The employee may take leave to address other events that arise out of a military
member's active duty status when the employer and employee agree that the leave will qualify as an
exigency and further agree on the timing and duration of the leave. 29 CFR §825.126(b)(9).
§1.60 H. Military Caregiver Leave

Under the FMLA, eligible employees who are military caregivers may receive up to 26 weeks of unpaid
job-protected time off work in a single 12-month period. 29 USC §2612(a)(3). An eligible employee is the
spouse, son, daughter, parent, or "next of kin" of a covered veteran or a covered current service member
with a serious injury or illness incurred in the line of duty during active duty for which the service member
is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is on the temporary
disability retired list. 29 CFR §825.127.
NOTE: "Next of kin" is not a recognized category under the CFRA. Under the FMLA, it is defined as the
nearest blood relative, other than the covered service member's spouse, parent, son, or daughter.
See 29 CFR §825.127(d)(3). Leave taken by a next-of-kin employee to care for a service member
can only be designated as FMLA leave.

§1.61 1. Current Service Member

The service member must be a member of the U.S. Armed Forces, including a member of the National
Guard or Reserves. 29 CFR §825.127(b)(1). The injury or illness, whether physical or mental, must have
been incurred in the line of duty during active duty and "may render the service member medically unfit"
to perform the duties of his or her office, grade, rank, or rating. This includes injuries or illnesses that
existed before the beginning of the member's active duty and were aggravated by service in the line of
duty during active duty in the U.S. Armed Forces. 29 CFR §825.127(c)(1)

§1.62 2. Recent Veteran

To care for a recent veteran, he or she must have been discharged or released under conditions other
than dishonorable at any time during the 5-year period prior to the first date the eligible employee
takes FMLA leave to care for the covered veteran. 29 CFR §825.127(b)(2).
A serious injury or illness for a covered veteran means an injury or illness that was incurred or
aggravated by the member in the line of duty during active duty in the U.S. Armed Forces and manifested
itself before or after the member became a veteran, and is (29 CFR §825.127(c)(2))
 A continuation of a serious injury or illness that was incurred or aggravated when the covered
veteran was a member of the U.S. Armed Forces and rendered the service member unable to
perform the duties of the service member's office, grade, rank, or rating;
 A physical or mental condition for which the covered veteran has received a VASRD (Veterans
Affairs Schedule for Rating Disabilities) rating of 50 percent or greater and such VASRD rating is
based, in whole or in part, on the condition precipitating the need for caregiver leave;
 A physical or mental condition that substantially impairs the veteran's ability to secure or follow a
substantially gainful occupation by reason of a disability or disabilities related to military service or
would do so absent treatment; or
 An injury, including a psychological injury, on the basis of which the covered veteran has been
enrolled in the Department of Veterans Affairs Comprehensive Assistance for Family Caregivers
Program

V. AMOUNT OF LEAVE

§1.63 A. Twelve Weeks in 12-Month Period ("Leave Year")

 The FMLA, CFRA, and NPLA require covered employers to allow eligible employees to take leave of
up to 12 weeks in a 12-month period, commonly referred to as a "leave year." Leave may, but need not,
be taken in one continuous block of time. In certain circumstances, leave may be taken on an intermittent
basis or on a reduced leave schedule. See §§1.69–1.79. However, no matter how it is
taken, FMLA/CFRA/NPLA leave may not exceed a total of 12 work weeks in a 12-month "leave year,"
with two exceptions:
 An eligible employee may take up to 26 weeks of FMLA leave allowed in a 12-month period,
measured from the first day of leave, to care for a family member who is injured while on active
duty with the U.S. Armed Forces. See §§1.80–1.81.
 A birth parent may take FMLA leave for a pregnancy-related disability (which runs concurrently
with leave under California's PDLL) and then may take an additional 12 weeks of leave to bond
with her newborn child under the CFRA or NPLA. See §1.42.

§1.64 1. Employer Determines "Leave Year"

Under the FMLA, CFRA, and NPLA, the employer generally may select any one of the following
methods for determining what constitutes a leave year (29 CFR §825.200(b); 2 Cal Code Regs
§11090(b)):
 The calendar year;
 Any fixed 12-month "leave year" (e.g., fiscal year, year required by state law, year measured by
the employee's anniversary date);
 The 12-month period measured forward from the date the employee's first FMLA or CFRA leave
begins; or
 A rolling 12-month period measured backward from the date the employee uses
any FMLA or CFRA leave.
NOTE: The "leave year" to care for a covered service member must begin on the first day the eligible
employee takes FMLA leave. 29 CFR §§825.127(e)(1), 825.200(f).

The FMLA requires the employer to inform an employee of the applicable 12-month period for leave
entitlement at the time it provides the rights-and-responsibilities notice to an employee. 29 CFR
§825.300(c)(1)(i). Similarly, the CFRA requires the employer to notify employees who
request CFRA leave of the employer's chosen method. 2 Cal Code Regs §11090(b).
If the employer does not select one of the methods for determining the leave period—or fails to notify
the employee of its chosen method—the option that provides the greatest benefit or most beneficial
outcome for the employee will be used. 29 CFR §825.200(e); 2 Cal Code Regs §11090(b). If the
employer selects a method, it must apply the selection consistently and uniformly to all its employees and
must notify employees requesting leave of its chosen method. 29 CFR §825.200(d)(1); 2 Cal Code Regs
§11090(b).
An employer wishing to change to an alternative leave year is required to give at least 60 days' notice
to all employees, and the transition must take place in such a way that the employees retain the full
benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. 29
CFR §825.200(d)(1); 2 Cal Code Regs §11090(b).

§1.65 2. Multi-State Employers

If an employer has employees in multiple states, one or more of these states may have statutory
requirements for determining the leave year period that conflict with the method selected by the employer
under the FMLA. If so, the employer may comply with the conflicting state requirements for determining
the leave year for the employees in those states, while uniformly using another method specified under
the FMLA for all other employees. See 29 CFR §825.200(d)(2).

§1.66 3. Holidays

If an employee takes a full week of FMLA or CFRA leave and that week includes one or more holidays,
the entire week counts against the employee's leave entitlement. 29 CFR §825.200(h); 2 Cal Code Regs
§11090(c)(3). If an employee takes leave in increments of less than a week, the holiday does not count
against the employee's leave entitlement unless the employee was otherwise scheduled to work during
the holiday. 29 CFR §825.200(h); 2 Cal Code Regs §11090(c)(3); Bertrand v City of Lake Charles (WD
La, May 3, 2012, No. 2:10 CV 867) 2012 US Dist Lexis 63330. If an employer's business activities have
temporarily ceased and employees generally are not expected to report to work for a week or more
(e.g., a school closes for 3 weeks for winter break), the days that the business activities have ceased do
not count against the employee's leave entitlement. 29 CFR §825.200(h); 2 Cal Code Regs §11090(c)(3).

§1.67 4. Overtime

If an employee normally would be required to work overtime, but is unable to do so because of

an FMLA- or CFRA-qualifying reason that limits the employee's ability to work overtime, the hours that the
employee would have been required to work may be counted against the employee's leave entitlement. In
such a case, the employee is using intermittent or reduced-schedule leave. For example, if an employee
normally would be required to work 48 hours in a particular week, but due to a serious health condition
the employee works 40 hours that week, the employee would use 8 hours of FMLA and CFRA leave out
of the 48-hour work week. Voluntary overtime hours that an employee does not work due to a serious
health condition are not counted against the employee's leave entitlement. 29 CFR §825.205(c); 2 Cal
Code Regs §11090(c)(4); see Hernandez v Bridgestone Americas Tire Operations LLC (8th Cir 2016)
831 F3d 940, 947 (although employer did not require employees to work any specified amount of
overtime, if employee chose to sign up and was selected for overtime, he or she was then required to
work and missed overtime shift could be counted against leave entitlement)

§1.68 5. When Spouses/Parents Work for Same Employer

Under the FMLA, if spouses are eligible for leave and work for the same covered employer, an
employer may limit their combined FMLA leave to 12 weeks if it is taken to care for the employee's parent
with a serious health condition, for the birth of the employee's child or to care for the child after the birth,
or for placement of a child with the employee for adoption or foster care or to care for the child after
placement. This limitation applies even if the spouses are employed at two different divisions of the same
company or at worksites of the same employer located more than 75 miles from each other. If one
spouse is not eligible for FMLA leave, however, then the other spouse remains entitled to the full 12
weeks of leave. Each spouse may use the difference between 12 weeks and the leave time he or she
individually took for one of the above purposes for another purpose. For example, if each spouse took 6
weeks to bond with a new child, each spouse could take an additional 6 weeks for their own serious
health condition or to care for a seriously ill child. 29 CFR §825.201(b).
A similar rule applies under the military caregiver leave provision of the FMLA. If spouses are eligible
for FMLA leave and work for the same employer, they may be limited to a combined total of 26 weeks of
leave in a 12-month period. 29 CFR §825.127(f).
 Unlike the FMLA, the CFRA limits parents (as opposed to spouses) working for the same employer to
a combined total of 12 weeks in a 12-month period when the leave is for the birth, adoption, or foster care
placement of their child. For any other qualifying purpose, each parent may take up to 12 weeks off. For
example, parents employed by the same employer each may take 12 weeks of CFRA leave if needed to
care for a child with a serious health condition. 2 Cal Code Regs §11088(c).
Under the NPLA, if both parents are employed by the same employer, the employer may limit their
combined leave to 12 weeks, and the employer may, but is not required to, grant simultaneous leave to
both parents. Govt C §12945.6(e).
For further discussion, see §4.14.

§1.69 B. Intermittent or Reduced-Schedule Leave

The FMLA, CFRA, and NPLA provide that leave may be taken intermittently or on a reduced-schedule
basis. 29 CFR §825.202(a); 2 Cal Code Regs §11090(c)(2), (d)–(e). See Govt C §12945.6(j) (directing
Fair Employment and Housing Council (FEHC) to incorporate NPLA into CFRA regulations to extent
those regulations are within scope of, and not inconsistent with, NPLA).
"Intermittent leave" is leave taken in separate blocks of time due to a single qualifying reason. 29 CFR
§825.202(a). It may include leave of periods from an hour to several weeks. 29 CFR §825.202(b)(1).
"Reduced leave schedule" is a change in the employee's schedule for a period of time, normally from full
time to part time. 29 CFR §825.202(a). It can be used, for example, by an employee who is recovering
from a serious health condition and is not strong enough to work a full-time schedule. 29 CFR
§825.202(b)(1).

§1.70 1. Qualifying Reasons

The FMLA and the CFRA authorize intermittent leave for the following:
 Care of the employee or a family member who has a serious health condition that requires
treatment by a health care provider periodically, rather than for one continuous period of time. 29
CFR §§825.202(b)(1), 825.203; 2 Cal Code Regs §11090(e). The FMLA clarifies that this
includes leave for treatment of the health condition, recovery from the health condition, and
recovery from the treatment. 29 CFR §825.202(b)(1).
NOTE: Intermittent leave for the employee's own pregnancy-related condition, such as morning sickness,
is covered by the FMLA but not the CFRA. See §1.42. However, time off for morning sickness and
other pregnancy-related conditions is covered under the PDLL. See §§2.2–2.51.

 Absences from work for a chronic condition that makes the employee incapacitated or unable to
perform the essential functions of the job. 29 CFR §825.202(b)(2); 2 Cal Code Regs §11090(e).
The person with the chronic condition does not need to be receiving medical treatment during the
absence. 29 CFR §825.202(b)(2); 2 Cal Code Regs §11090(e). For definition of a serious health
condition involving a chronic condition, see §1.53.
 A child's birth, adoption, or placement in foster care. 29 CFR §825.202(c); 2 Cal Code Regs
§11090(d). Bonding leave must be concluded within 1 year of the child's birth, adoption, or
placement. 29 CFR §§825.120(a)(2), 825.121(a)(2); 2 Cal Code Regs §11090(d).
The FMLA also authorizes intermittent or reduced-schedule leave for care of a service member and for
a military-related qualifying exigency. 29 CFR §§825.202(b)(1), 825.203.

§1.71 2. California Variation: Short Bonding Leave

 Under the FMLA, the employer must agree before an employee can take intermittent or reduced-
schedule leave because of the birth or placement of a child for adoption or foster care. 29 USC
§2612(b)(1); 29 CFR §825.202(c). However, the CFRA leave entitlement for the birth, adoption, or foster
care placement of a child does not require permission from the employer. The leave's minimum duration
for this purpose under the CFRA is 2 weeks. The employer must grant a request for CFRA leave of less
than 2 weeks' duration on any two occasions and may grant requests for additional occasions of leave
lasting less than 2 weeks. 2 Cal Code Regs §11090(d). Thus, in California, permission for intermittent
bonding leave is not required because when CFRA provisions are more protective of employee's
rights, CFRA provisions apply over those in the FMLA. 29 CFR §825.701(a) ("Nothing
in FMLA supersedes any provision of State or local law that provides greater family or medical leave
rights than those provided by FMLA"). See Govt C §12945.6(j) (incorporating CFRA regulations to extent
they are within scope of, and not inconsistent with, NPLA).

3. Prerequisites to Leave

§1.72 a. Reasonable Effort to Avoid Disruption

Intermittent or reduced-schedule leave for any planned medical treatment of the employee, or a family
member or service member, requires that the employee make a "reasonable effort to schedule the
treatment so as not to disrupt unduly the employer's operations." 29 CFR §825.203; 2 Cal Code Regs
§11090(c)(2). California's Fair Employment and Housing Council (FEHC) has stated that this provision
"only requires that if an employer will suffer a significant, excessive, and unjustifiable disruption to
operations, then, and only then, will there be an expectation that the employee seeking treatment make a
'reasonable effort' to avoid that disruption—which is not a bright line rule requiring that the
employee must avoid the disruption." Proposed Amendments to CFRA Regulations, Final Statement of
Reasons, Response to Comment to §11090(c)(2) at 24 (emphasis in original).
NOTE: Leave for planned medical treatment requires consultation with the employer, even if the leave
will be continuous and full time. The employee must make a reasonable effort to schedule any
planned medical treatment so as to minimize disruption to the employer's operations, subject to the
approval of the health care provider of the employee or the employee's child, parent, or spouse. 29
CFR §825.302(e); 2 Cal Code Regs §11091(a)(2). See §1.100

§1.73 b. Medical Necessity

Intermittent or reduced-schedule leave for care of the employee or a family member with a serious
health condition or a seriously injured or ill service member must be "medically necessary." 29 CFR
§825.202(b); 2 Cal Code Regs §11090(e). Jadwin v County of Kern (ED Cal 2009) 610 F Supp 2d 1129,
1169. Medical necessity means that there is a medical need for leave and that the medical need can be
best accommodated through intermittent or reduced-schedule leave. 29 CFR §825.202(b). If the
employer requires medical certification of a serious health condition, injury, or illness, the health care
provider should include this statement in the certification. See 2 Cal Code Regs §11097 (certification
form). On medical certifications, see §§1.107–1.126\

§1.74 c. Permission for Intermittent Bonding

 Under the FMLA, an employee may take intermittent or reduced-schedule leave for the birth or
placement of a child for adoption or foster care only with the employer's permission. 29 CFR §825.202(c).
Under the CFRA and NPLA, an employee may take intermittent or reduced-schedule leave for these
purposes in 2-week increments and for two periods of less than 14 days each without the employer's
permission. The employer may grant additional requests for intermittent or reduced-schedule leave
lasting less than 2 weeks. 2 Cal Code Regs §11090(d). See Govt C §12945.6(j) (directing Fair
Employment and Housing Council (FEHC) to incorporate NPLA into CFRA regulations to extent those
regulations are within scope of, and not inconsistent with, NPLA). In California, the more
protective CFRA/NPLA rules would app

§1.75 4. Calculating Leave Taken

Only the amount of leave actually taken is counted toward the weeks of leave to which the employee is
entitled. 29 CFR §825.205(a); 2 Cal Code Regs §11090(c)(2). For leave taken under the FMLA, or under
the CFRA other than for the birth, adoption, or foster placement of a child, the employer must account for
intermittent or reduced-schedule leaves using an increment no greater than the shortest period of time
the employer uses to account (in the payroll system) for use of other forms of leave, provided that it is not
greater than 1 hour. 29 CFR §825.205(a); 2 Cal Code Regs §11090(e). Thus, an employer that docks
employees' pay for 15 minutes for tardiness must permit CFRA leaves in 15-minute increments.

§1.76 5. Exempt Employee Status

If an employee who is eligible for FMLA leave is exempt from the FLSA's minimum wage and overtime
requirements, the employer may make deductions from the employee's salary for time off taken
intermittently or on a reduced-schedule leave under the FMLA within a work week, without affecting the
employee's exempt status. For example, if an employee who normally works 40 hours per week takes 4
hours of unpaid FMLA leave that week, the employer can deduct 10 percent of the employee's normal
salary that week. 29 CFR §541.602(b)(7). Under the CFRA, an employer may reduce an exempt
employee's pay for intermittent leave or a reduced work schedule provided the reduction is not
inconsistent with any applicable collective bargaining agreement or employer leave policy, FEHA, or any
other applicable state or federal law. 2 Cal Code Regs §11090(e)(4).

§1.77 6. Temporary Transfer to Alternative Position

If an employee needs intermittent or reduced-schedule leave that is foreseeable for planned medical
treatment for the employee or a covered family member, including during a period of recovery from a
serious health condition, or if the employer agrees to permit intermittent or reduced-schedule leave to
care for a newborn child or a child placed with the employee for adoption or foster care, then the
employer may require the employee to transfer temporarily, during the period the intermittent or reduced-
schedule leave is required, to an available position for which the employee is qualified and that better
accommodates recurring periods of leave. 29 CFR §825.204(a); 2 Cal Code Regs §11090(e)(1).
Transfer to another position may include altering an existing job to better accommodate the employee's
need for intermittent or reduced-schedule leave. 29 CFR §825.204(b); 2 Cal Code Regs §11090(e)(1).
The alternative position must have equivalent pay and benefits, but need not have equivalent duties. 29
CFR §825.204(c); 2 Cal Code Regs §11090(e)(1); Howard v Inova Health Care Servs. (4th Cir 2008) 302
Fed Appx 166, 173 (transfer from billing office to medical-tech position). The employer may transfer the
employee to a part-time job with the same hourly rate of pay and benefits as long as the employee is not
required to take more leave than is medically necessary. Under these circumstances, the employer may
proportionally reduce benefits, such as vacation leave, if its normal practice is to base such benefits on
the number of hours worked. However, the employer may not eliminate benefits that would not otherwise
be available to part-time employees. 29 CFR §825.204(c).
The employer may not transfer the employee to discourage him or her from taking leave or to
otherwise work a hardship on the employee. 29 CFR §825.204(d); 2 Cal Code Regs §11090(e)(1). The
transfer must also comply with any applicable collective bargaining agreement or employer leave
policy, FEHA, the ADA, and any other applicable state or federal law. 29 CFR §825.204(b); 2 Cal Code
Regs §11090(e)(1)

§1.78 7. When Leave Is Not Physically Possible

When it is physically impossible for an employee using intermittent leave or working a reduced
schedule to begin or end work midway through a shift, such as when a flight attendant is scheduled to
work aboard a plane, the entire time that the employee is absent will be designated as protected leave
and will count against the employee's FMLA and CFRA entitlement. 29 CFR §825.205(a)(2); 2 Cal Code
Regs §11090(e)(3). Such physical impossibility is limited to two instances: (1) the period when the
employer is unable to permit the employee to work, before the start of the employee's FMLA leave, and
(2) the period when the employer is unable to return the employee to the same or an equivalent position,
at the end of the employee's FMLA leave. 29 CFR §825.205(a)(2).
The CFRA, unlike the FMLA, entitles the employee to return to work before the period of physical
impossibility ends if he or she is able to perform other aspects of the work, such as administrative duties.
2 Cal Code Regs §11090(e)(3). See Govt C §12945.6(j) (directing Fair Employment and Housing Council
(FEHC) to incorporate NPLA into CFRA regulations to extent those regulations are within scope of, and
not inconsistent with, NPLA).

§1.79 8. Special Rules for School Employees

CFRA leave, including intermittent leave and reduced work schedules, is available to instructional
employees of educational establishments and institutions under the same conditions as apply to all other
eligible employees. 2 Cal Code Regs §11090(e)(2).
The FMLA, however, applies special rules to certain employees of specified educational institutions.
The institutions include public school boards, as well as the elementary and secondary schools within
their jurisdictions, and private elementary and secondary schools. They do not apply to other educational
institutions, such as colleges, trade schools, or preschools. 29 CFR §825.600(a). Individual schools fall
within the FMLA's coverage even if they do not have 50 employees, as long as 50 total employees within
75 miles are employed by the same employer (typically a school board). Individual school employees are
covered by the FMLA rules (including the special rules) as long as they meet the normal hours, length-of-
employment, and 50-employees-within-a-75-mile-radius tests. 29 CFR §825.600(b).
The special rules govern the taking of intermittent leave, leave on a reduced schedule, or leave toward
the end of an academic term for instructional employees. 29 CFR §825.600(c). Instructional employees
are employees whose main function is to teach students in a class, small group, or individual setting,
including driving and athletics instructors and special education assistants. The special rules do not apply
to noninstructional employees, including teacher assistants or aides for whom teaching or instructing is
not their principal job, or auxiliary personnel such as counselors, psychologists, or curriculum specialists.
Also excluded are custodians, cafeteria workers, and bus drivers. 29 CFR §825.600(c).
Covered instructional employees may have restrictions placed on otherwise eligible
intermittent FMLA leave—including time off for a family member's serious illness, to care for a covered
service member, or to attend to one's own serious health condition—if the leave is projected to account
for more than 20 percent of the total number of working days during the requested period. In this
circumstance, an employer may require the instructional employee to take leave for a period (or periods)
of a particular duration (not to exceed the total projected treatment time) or may temporarily transfer the
employee to an available alternative position (for which the employee is qualified) with equivalent pay and
benefits and that better accommodates intermittent leave than the employee's current position. 29 CFR
§825.601(a)(1).
If an employee takes leave from the end of one school year until the beginning of the next, the summer
vacation during which he or she is not required to work will not count against his or her FMLA allowance.
The employee must accrue and retain the benefits that the employee would otherwise have if he or she
had been working at the end of the school year. 29 CFR §825.601(a).
In addition to the general rules laid out above, other restrictions may apply to instructional employees,
depending on when their leave begins in comparison with the end of the school term (29 CFR §825.602):
 If a covered instructional employee begins leave more than 5 weeks before the end of a term for
any reason, the employer may require the employee to continue to take leave until the end of the
term if the employee plans to return to work during the final 3 weeks of the term and the
requested leave will last more than 3 weeks. 29 CFR §825.602(a)(1).
 If the employee begins taking leave for any reason except self-care during the final 5 weeks of
the term, the employer may require the employee to continue taking leave until the end of the
term if the employee plans to return to work during the final 2 weeks of the term and the
requested leave will last more than 2 weeks. 29 CFR §825.602(a)(2).
 If the employee begins taking leave for any reason except self-care during the final 3 weeks of
the term, the employer may require the employee to continue taking leave until the end of the
term if the leave will last more than 5 working days. 29 CFR §825.602(a)(3).
 In the event that the school requires an employee to stay on leave until the end of the term, only
the amount of time needed and originally requested by the employee will be counted against his
or her FMLA leave allowance, not the amount of time from the beginning of the leave until the end
of the term. During all leave time, whether counted against the employee's FMLA entitlement or
not, the employer must continue to provide benefits such as health insurance to the employee,
and must restore the employee to his or her same or equivalent position on return from leave. 29
CFR §825.603(b).
 When an employee must be restored to an equivalent position on return from FMLA leave, the
determination of how this restoration is to take place must be made on the basis of established
school (and school board) policies and practices. These policies and any applicable collective
bargaining agreements must be in writing and must be made known to the employee before the
taking of FMLA leave. They must also include an explanation of the employee's restoration rights
on return from leave. The policy or agreement must provide for restoration to an equivalent
position with equivalent employment benefits, pay, and other terms and conditions of
employment. 29 CFR §825.604.

C. Service Member Care Leave

§1.80 1. Twenty-Six Weeks in 12-Month Period

An eligible employee who is the spouse, son, daughter, parent, or next of kin of a "covered
servicemember" is entitled to take up to 26 work weeks of leave during "a single 12-month period" to care
for the servicemember. 29 CFR §§825.127(d)–(e), 825.200(g).

§1.81 2. Determining 12-Month Period

The single 12-month period in which 26 weeks of leave are allowed for service member care is the
period measured forward from the date the leave begins. The period ends 12 months after that date,
regardless of the method used by the employer to determine the employee's 12 work weeks of leave
entitlement for other FMLA-qualifying reasons. 29 CFR §§825.127(e)(1), 825.200(f).

VI. EMPLOYER'S POSTING AND NOTICE REQUIREMENTS

A. Posting Notice of Leave Rights

§1.82 1. "In Conspicuous Places"

Covered employers must post a notice explaining employees' FMLA and CFRA leave rights and
providing information about filing complaints of violations. 29 USC §2619(a); 29 CFR §825.300(a)(1); 2
Cal Code Regs §11095(a). The notice must be posted "in conspicuous places … where notices to
employees and applicants for employment are customarily posted" as well as "prominently where it can
be readily seen by employees." 29 USC §2619(a); see 2 Cal Code Regs §11095(a) (notice must be
posted "in conspicuous places where employees are employed"). Electronic posting is sufficient if it
otherwise meets the notice requirements. 29 CFR §825.300(a)(1); 2 Cal Code Regs §11095(a).
The FMLA regulations require covered employers to post the notice even if no employees are eligible
for FMLA leave. 29 CFR §825.300(a)(2); see 2 Cal Code Regs §11096 (incorporating FMLA regulations
to extent they are within scope of Govt C §12945.2 and not inconsistent with CFRA regulations).

§1.83 2. Form and Content of Poster

FMLA. The FMLA poster must explain the statute's provisions and provide information about how to
file a complaint alleging violations of the FMLA with the Wage and Hour Division of the U.S. Department
of Labor (DOL); it must be large enough to be easily read and "contain fully legible text." 29 CFR
§825.300(a)(1). The Wage and Hour Division has created an FMLA poster for employers' use.
See [Link] Alternatively, an employer may create its
own poster, but it must ensure that the poster contains at least all of the information in the Division's
poster. 29 CFR §825.300(a)(4); DOL, Wage and Hour Division, Fact Sheet #28D. In addition, when
providing notice to sensory-impaired individuals, employers must comply with all applicable requirements
under federal or state law. 29 CFR §825.300(a)(4).
CFRA. The CFRA poster must explain the statute's provisions and provide information about how to
file a complaint alleging violations of the CFRA with the Department of Fair Employment and Housing
(DFEH). 2 Cal Code Regs §11095(a). Covered employers may develop their own notice or choose to use
the text in 2 Cal Code Regs §11095(d), unless that text does not accurately reflect the employer's policy
(e.g., the employer provides more generous leave benefits than are minimally required under the CFRA).
Any poster "must be large enough to be easily read and contain fully legible text." 2 Cal Code Regs
§11095(a). The Department of Fair Employment and Housing (DFEH) provides a poster for employers'
use. See [Link]
content/uploads/sites/32/2017/06/CFRA_PregnancyLeave_English.pdf.
NPLA. Government Code §12945.6(j) directs the Fair Employment and Housing Council (FEHC) to
incorporate the NPLA into the CFRA regulations to the extent those regulations are within the scope of,
and not inconsistent with, the NPLA. Thus, it appears that employers covered by the NPLA are required
to post a notice explaining employees' rights under the NPLA in the same manner as under the CFRA.

§1.84 3. Non-English-Speaking Workforce

FMLA. Under the FMLA, if the primary language of a "significant portion" of an employer's workforce is
something other than English, the employer must also post a notice in that language or languages. 29
CFR §825.300(a)(4). The U.S. Department of Labor's (DOL) Wage and Hour website has a Spanish
version of the FMLA poster available for downloading and printing.
See [Link]
CFRA. Under the CFRA, if 10 percent or more of the employees at any facility or establishment speak
a language other than English, the employer must translate the posted notice into every language spoken
by at least 10 percent of the workforce. 2 Cal Code Regs §11095(c).
NPLA. Government Code §12945.6(j) directs the Fair Employment and Housing Council (FEHC) to
incorporate the NPLA into the CFRA regulations to the extent those regulations are within the scope of,
and not inconsistent with, the NPLA. Thus, it appears that employers covered by the NPLA are required
to post non-English notices in the same manner as under the CFRA

§1.85 4. Civil Penalty for Willful Failure to Post Notice

The statutory penalty for an employer's willful failure to post the FMLA notice is a civil penalty of up to
$100 for each separate violation. 29 USC §2619(b). (Note that the FMLA regulations refer to penalties of
up to $169 for each separate violation. See 29 CFR §825.300(a)(1).) This penalty is assessed by the U.S.
Department of Labor (DOL) and is not available to private litigants. Woida v Genesys Reg'l Med. Ctr. (ED
Mich 2014) 4 F Supp 3d 880, 898 n16 ("courts have repeatedly held that a plaintiff may not maintain a
private right of action based on the violation of the posting and notice requirements of the FMLA").
The CFRA does not have a similar civil penalty provision.

§1.86 B. Notice in Employee Handbook and to New Employees

FMLA. If an FMLA-covered employer has any eligible employees, it must individually distribute the
required notice in one of two ways:

1. By including the notice in employee handbooks or other written materials provided to employees
detailing employee benefits or leave rights, if such written materials exist; or
2. By distributing a copy of the general notice to each new employee on hiring.

In either case, the employer may distribute the notice electronically. 29 CFR §825.300(a)(3). To give this
notice, an employer may either duplicate the text of the U.S. Department of Labor, Wage and Hour
Division's prototype notice (see [Link] or draft its own
notice as long as it includes all of the information in the Division's prototype. 29 CFR §825.300(a)(4).
In addition, as with the FMLA poster, if the primary language of a "significant portion" of the workforce
speaks a language other than English, the notice must be translated into that language or languages. 29
CFR §825.300(a)(4).
CFRA. Covered employers must include "a description of CFRA leave" in any employee handbook that
describes other types of personal or disability leaves. 2 Cal Code Regs §11095(a). In addition,
"employers are encouraged to give a copy of the notice to each current and new employee, ensure that
copies are otherwise available to each current and new employee, and disseminate the notice in any
other way." 2 Cal Code Regs §11095(b). As with the posted notice, the CFRA requires that if 10 percent
or more of the employees at any facility or establishment speak a language other than English, the
employer must translate the notice into every language spoken by at least 10 percent of the workforce. 2
Cal Code Regs §11095(c).
NPLA. Government Code §12945.6(j) directs the Fair Employment and Housing Council (FEHC) to
incorporate the NPLA into the CFRA regulations to the extent those regulations are within the scope of,
and not inconsistent with, the NPLA. Thus, it appears that employers covered by the NPLA are required
to comply with the notice requirements regarding employee handbooks and new employees in the same
manner as under the CFRA.
An employer's failure to provide the required notice in violation of the FMLA or the CFRA may
constitute interference with, restraint of, or denial of exercise of the employee's leave rights. 29 CFR
§825.220(b); 2 Cal Code Regs §11094(a). However, an employee must show harm from the lack of
notice. See 29 CFR §825.220(b).

VII. PROCEDURES FOR REQUESTING AND GRANTING LEAVE

§1.87 A. Advance Notice of Procedures Required

FMLA. The employer must ensure that employees have actual notice of the FMLA's procedures for
requesting leave (e.g., that the employee must generally give 30 days' advance notice when the need for
leave is foreseeable or that the employee must provide sufficient information to allow the employer to
determine whether leave is FMLA-qualifying). This requirement will be satisfied if the employer follows the
general posting and notice distribution requirements. See §§1.82–1.86. If the employer has failed to
provide actual notice, it may not delay or deny an employee's leave because he or she failed to give the
required notice. 29 CFR §825.304(a). The employer must also ensure that employees have notice of any
employer-specific policies regarding requesting leave, such as whether a particular form needs to be filled
out or whether employees need to contact a specific person to request leave. 29 CFR §825.302(d).
CFRA. An employer must give employees "reasonable advance notice" of any special notice
procedures (e.g., calling a designated supervisor to request leave or submitting a particular form).
"Reasonable advance notice" will be deemed to have been given if the employer incorporates the special
notice procedures into the notice that it posts and distributes to employees. See §§1.82–1.86. The
employer's failure to provide notice precludes it from taking any adverse action against the employee,
including denying the requested leave. 2 Cal Code Regs §11091(a)(5).
NPLA. Government Code §12945.6(j) directs the Fair Employment and Housing Council (FEHC) to
incorporate the NPLA into the CFRA regulations to the extent those regulations are within the scope of,
and not inconsistent with, the NPLA. Thus, it appears that employers covered by the NPLA are required
to give employees the advance notice of any special notice procedures in the same manner as under
the CFRA.

B. Employee's Responsibility to Give Notice of Need for Leave

1. Timing of Notice

§1.88 a. When Need for Leave Is Foreseeable

FMLA. The FMLA requires an employee to provide at least 30 days' advance notice before leave is to
begin "if the need for the leave is foreseeable based on an expected birth, placement for adoption or
foster care, planned medical treatment for a serious health condition of the employee or a family member,
or planned medical treatment for a serious injury or illness of a covered servicemember." 29 CFR
§825.302(a); see 29 USC §2612(e)(1)–(2). Notice for foreseeable leave due to a military-related
qualifying exigency must be provided "as soon as practicable" regardless of how far in advance the leave
is foreseeable. 29 CFR §825.302(a); see 29 USC §2612(e)(3).
In cases in which 30 days' advance notice is not practicable (e.g., the leave needs to begin sooner
than anticipated because of a premature birth, there has been a change in the employee's circumstances,
or there is a medical emergency), the employee must give notice "as soon as practicable." 29 CFR
§825.302(a). The FMLA regulations define "as soon as practicable" to mean "as soon as both possible
and practical, taking into account all of the facts and circumstances in the individual case," but note that
this will usually mean the employee provides notice either the same day or the next business day. 29
CFR §825.302(b).
If an employee is required to provide at least 30 days' notice of foreseeable leave and does not do so,
the employer can request that the employee explain the reasons why such notice was not practicable. 29
CFR §825.302(a).
CFRA. In cases of foreseeable leave, the CFRA generally requires employees to give "reasonable
advance notice" of a need for leave. Govt C §12945.2(h). The regulations more specifically provide that
employers "may require" employees to provide at least 30 days' advance notice "if the need for the leave
is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical
treatment for a serious health condition of the employee or a family member." 2 Cal Code Regs
§11091(a)(2).
NPLA. Government Code §12945.6(j) directs the Fair Employment and Housing Council (FEHC) to
incorporate the NPLA into the CFRA regulations to the extent those regulations are within the scope of,
and not inconsistent with, the NPLA. Thus, it appears that an employee eligible for NPLA leave is
required to give notice of the need for leave in the same manner as under the CFRA.

§1.89 b. When Need for Leave Is Unforeseeable

Under both the FMLA and the CFRA, when the need for leave is unforeseeable (e.g., the employee is
unsure when exactly leave will need to begin, there has been a change in the employee's circumstances,
or there is a medical emergency), the employee must give notice "as soon as practicable under the facts
and circumstances of the particular case." 29 CFR §825.303(a); see 2 Cal Code Regs
§11091(a)(3); Ozolins v Northwood-Kensett Community Sch. Dist. (ND Iowa 1999) 40 F Supp 2d 1055,
1063 (employee's Monday morning notice was timely when she learned of mother's fall on Friday evening
and realized on Sunday night that week of care would be required). The FMLA regulations note that "it
generally should be practicable" for the employee to provide notice of unforeseeable leave according to
the employer's usual notice requirements for such leaves. 29 CFR §825.303(a).
Government Code §12945.6(j) directs the Fair Employment and Housing Council (FEHC) to
incorporate the NPLA into the CFRA regulations to the extent those regulations are within the scope of,
and not inconsistent with, the NPLA. Thus, it appears that employees eligible for NPLA leave must give
notice when the need for leave is unforeseeable in the same manner as under the CFRA.

§1.89A c. Determining Whether Need for Leave Is Foreseeable or Unforeseeable

The parties may dispute whether the employee's need for leave was foreseeable or unforeseeable, a
determination that will impact the amount of notice that the employee is required to give his or her
employer. For example, in White v Beltram Edge Tool Supply, Inc. (11th Cir 2015) 789 F3d 1188, the
district court found that the plaintiff's need for leave to undergo knee surgery was foreseeable and thus
she had not given her employer the required 30 days' notice. The appellate court reversed, holding that
although the plaintiff knew knee surgery was "an option," it was only when she reinjured her knee that
surgery became "relatively urgent," making her need for leave unforeseeable. 789 F3d at 1196.

§1.90 d. Employee Need Only Give Notice Once

An employee need only give notice one time, regardless of whether the leave is taken in one block of
time, intermittently, or on a reduced-schedule basis. However, if the dates of the scheduled leave change
or are extended, or were initially unknown, the employee must advise the employer as soon as possible.
29 CFR §825.302(a).

e. Employee's Failure to Give Timely Notice

§1.91 (1) May Delay Start of Protected Leave

Leave that is foreseeable for 30 days or more. If an employee fails to give timely advance notice for
a leave that is foreseeable at least 30 days in advance, the employer may delay FMLA coverage until 30
days after the date the employee provides notice. However, to delay leave in this situation, the need for
leave and the approximate date leave would be taken must have been "clearly foreseeable to the
employee 30 days in advance of the leave." 29 CFR §825.304(b) (leave is not "clearly foreseeable" 30
days in advance if employee only knows that he or she will receive phone call about availability of child
for adoption "at some unknown point in the future").
Leave that is foreseeable for fewer than 30 days. If an employee fails to give notice as soon as
practicable for a leave that is foreseeable fewer than 30 days in advance, the employer's ability to delay
the start of FMLA leave depends on the surrounding facts and circumstances. 29 CFR
§825.304(c). The FMLA regulations provide as an example an employee who only gives 1 week's notice
of her need for leave when the facts and circumstances indicate that she should have given 2 weeks'
notice. In that case, the employer may delay the start of the employee's FMLA leave by 1 week. In
addition, if the employee goes ahead and takes leave 1 week after giving notice, the leave would not
be FMLA-protected. 29 CFR §825.304(c).
Unforeseeable leave. If an employee fails to give notice as soon as practicable for unforeseeable
leave, the employer's ability to delay the start of FMLA leave depends on the surrounding facts and
circumstances. 29 CFR §825.304(d) (in case in which employee could have given notice "very soon" after
need arose but waited to give notice until 2 days after leave began, employer may delay start of FMLA-
protected leave by 2 days); see 2 Cal Code Regs §11091(a)(4) (in cases of unforeseeable leave,
employer may not deny leave based on employee's failure to give advance notice of need for leave as
long as employee provided notice as soon as practicable).

§1.92 (2) Employer Must Have Provided Notice of Deadlines

An employer's ability to delay the start of protected leave due to a lack of timely notice depends on its
having provided the employee with actual notice of the time deadlines. An employee is deemed to have
this notice if an employer properly posted and distributed the required general notice. 29 CFR
§825.304(a); 2 Cal Code Regs §11091(a)(5). See §§1.82–1.86.

§1.93 (3) Employer May Waive Deadlines

An employer may waive an employee's notice obligations under the FMLA or the CFRA or under an
employer's own internal notice rules. If the employer does not waive an employee's notice obligations, it
may enforce its policy absent unusual circumstances, provided it does so in a way that does not
discriminate against employees taking FMLA/CFRA leave and the rules are not inconsistent with the
statutes' notice rules. See 29 CFR §§825.302(g), 825.304(e); 2 Cal Code Regs §11091(a)(1).

§1.94 2. Manner of Giving Notice

An employee must provide at least verbal notice of his or her need for leave. 29 CFR §825.302(c); 2
Cal Code Regs §11091(a)(1). However, if an employer has a policy mandating that leave requests be
communicated in a particular manner (e.g., by telephoning or e-mailing a supervisor or by filling out a
certain form), the employee must follow that procedure absent unusual circumstances. 29 CFR
§§825.302(d), 825.303(c); 2 Cal Code Regs §11091(a)(1), (a)(5).
Notice may be given by an employee's spokesperson (e.g., spouse, adult family member) if the
employee is unable to do so personally. 29 CFR §825.303(a).

3. Content of Notice

§1.95 a. Information Sufficient to Make Employer Aware of Need for Leave

Regardless of whether the employee's need for leave is foreseeable or unforeseeable, the basic rule is
that an employee's notice must be sufficient to make the employer aware that the employee needs
potentially FMLA- or CFRA-qualifying leave. See Bareno v San Diego Community College Dist. (2017) 7
CA5th 546, 566 (physician's note placing employee "Off Work" and including onset date for condition and
probable duration is sufficient notice under CFRA); Moore v Regents of Univ. of Cal. (2016) 248 CA4th
216, 249 (informing employer of need to take leave for surgery to implant device for heart condition was
sufficient notice of need for CFRA-qualifying leave); Wallace v FedEx Corp. (6th Cir 2014) 764 F3d 571,
586 (reasonable for jury to conclude that plaintiff gave sufficient notice by providing note from her doctor
indicating that she had serious medical condition that required her to take leave from work). It is not the
employee's burden to offer all necessary details to permit the employer to determine the FMLA's
applicability; rather, "in the absence of a request for additional information, an employee has provided
sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply." Coutard v
Municipal Credit Union (2d Cir 2017) 848 F3d 102, 111. Note that the notice must make
the employer aware of the need for leave. Curtis v Costco Wholesale Corp. (7th Cir 2015) 807 F3d 215,
220 ("A comment made in passing to a subordinate employee does not equate to providing sufficient
notice to [employee's] superiors at Costco"). Whether notice is sufficient under the CFRA is a question of
fact. Bareno, 7 CA5th at 565.
The first time that an employee (or an employee's spokesperson, if the employee is unable to give
notice) seeks leave, the employee need not expressly assert rights under the FMLA or the CFRA,
mention the FMLA or the CFRA, or use any "magic words." However, the employee must state
the reason the leave is needed, e.g., for the expected birth of a child or for medical treatment. 29 CFR
§825.302(c) (providing examples in cases of foreseeable leave); 29 CFR §825.303(b) (providing
examples in cases of unforeseeable leave); 2 Cal Code Regs §11091(a)(1) (the "mere mention of
'vacation,' other paid time off, or resignation does not render the notice insufficient, provided the
underlying reason for the request is CFRA-qualifying"). Note that for FMLA leave requests only, when an
employee seeks leave due to a qualifying reason for which the employer has previously provided the
employee with FMLA-protected leave, the employee must specifically reference the qualifying reason or
the need for FMLA leave. 29 CFR §825.303(b).
If possible, the notice should also include the anticipated timing and duration of the leave. 29 CFR
§825.302(c); 2 Cal Code Regs §11091(a)(1); see Sarnowski v Air Brooke Limousine, Inc. (3d Cir 2007)
510 F3d 398, 402 ("regulations are clear that employees may provide FMLA qualifying notice before
knowing the exact dates or duration of the leave they will take"); Gienapp v Harbor Crest (7th Cir 2014)
756 F3d 527, 529 (employee gave sufficient notice of need for leave without providing return-to-work date
because she could not have known how long her daughter would require her care). A notice's failure to
include this information, however, does not by itself disqualify the notice, but rather triggers the
employer's duty to follow up with the employee to gather additional information. Soria v Univision Radio
Los Angeles, Inc. (2016) 5 CA5th 570, 604; see Bareno, 7 CA5th at 567 (notice from employee that she
would "notify all concern[ed] of [her] return" was sufficient to notify employer that she sought additional
leave beyond initially requested leave). When the employee needs leave for planned medical treatment,
additional requirements regarding anticipated timing and duration apply. See §1.100.

§1.96 b. Employer's Duty to Inquire Further When Notice Is Unclear

If the employer does not have sufficient information about the reason for the employee's use of leave,
the employer should inquire further of the employee or the employee's spokesperson (if the employee is
incapacitated, the employee's spouse, adult child, parent, or doctor may give information) to ascertain
whether the need for leave is potentially FMLA- or CFRA-qualifying and to determine the expected start
date and duration. 29 CFR §§825.301(a), 825.302(c), 825.303(b); 2 Cal Code Regs §11091(a)(1); Moore
v Regents of Univ. of Cal. (2016) 248 CA4th 216, 249 ("an employer bears a burden, under CFRA, to
inquire further if an employee presents the employer with a CFRA-qualifying reason for requesting
leave").
The employee has a duty to respond to an employer's questions if they are designed to determine
whether an absence is potentially FMLA- or CFRA-qualifying. Failure to do so may result in the denial of
the leave request. 29 CFR §§825.301(b), 825.302(c), 825.303(b); 2 Cal Code Regs §11091(a)(1). A
response from a spokesperson is permitted even if the employee is not incapacitated. Faust v California
Portland Cement Co. (2007) 150 CA4th 864, 883 (employee who was too "stressed out" to speak to
human resources manager did not fail to respond to employer's inquiries when spouse told human
resources manager that spouse, attorney, and chiropractor were all available to respond). The employer
may also require that the employee provide a medical certification to support the leave request.
See §§1.107–1.126.
NOTE: CFRA regulations prohibit employers from asking for certain specific medical information,
including the diagnosis, symptoms, or serious health condition involved. 2 Cal Code Regs
§§11087(a)(1)–(2), 11091(b)(2)(A). See §§1.116–1.117. If an employee's leave request is protected
by both the FMLA and the CFRA, the greater privacy protections of the CFRA apply. 29 CFR
§825.701(a). See §1.8.

When an employer has previously approved the employee for leave for multiple qualifying reasons, it
may inquire further if it is unclear for which qualifying reason the employee is requesting leave. 29 CFR
§825.302(c).

§1.97 c. Compliance With Employer Policy

FMLA regulations provide that, absent unusual circumstances, an employer may require employees to
comply with the employer's usual and customary notice and procedural requirements for requesting
leave, such as a requirement that employees state in writing the reason for, the duration of, and the start
date of the requested leave, or that they contact a specific individual to request leave. See Acker v
General Motors, LLC (5th Cir 2017) 853 F3d 784, 789 ("Discipline resulting from the employee's failure to
[follow employer's procedures for requesting FMLA leave] does not constitute interference with the
exercise of FMLA rights unless the employee can show unusual circumstances"). Unusual circumstances
may include when there is no one to answer the employer's required call-in number on the day the
employee needs to give notice of a need for leave and the voice-mail box is full. When an employee fails
to follow the employer's requirements, and no unusual circumstances justify the failure, the employer may
deny or delay FMLA leave unless the employer's policy requires notice to be given sooner than required
under the FMLA and the employee's notice is timely under the law. See 29 CFR §§825.302(d),
825.303(c).

NOTE: Compliance with the employer's policy is required even when the leave is unforeseeable.
However, an employee who needs emergency medical treatment is not required to follow an
employer's call-in procedure until he or she is able. Likewise, in an emergency, written advance
notice under an employer's policy may not be required. 29 CFR §825.303(c). See Ozolins v
Northwood-Kensett Community Sch. Dist. (ND Iowa 1999) 40 F Supp 2d 1055, 1063 (failure to
communicate all information required on employer's leave request form would not permit employer
to deny unforeseeable leave as long as employee gave timely verbal or other notice).

§1.98 d. Employer May Waive Notice Requirements

An employer may waive an employee's notice obligations under the FMLA or the CFRA or under the
employer's own internal notice rules. If the employer does not waive an employee's notice obligations, it
may enforce its policy absent unusual circumstances, provided it does so in a way that does not
discriminate against employees taking protected leave and the rules are not inconsistent with the statutes'
notice rules. See 29 CFR §§825.302(g), 825.304(e); 2 Cal Code Regs §11091(a)(1)

§1.99 e. Constructive Notice

 It is unsettled whether an employee's aberrant or unusual behavior may, in some circumstances,
constitute constructive notice to an employer of the need for leave because of a serious mental health
condition. The Seventh Circuit in Byrne v Avon Prods., Inc. (7th Cir 2003) 328 F3d 379, 381, applied a
constructive notice theory under former 29 CFR §825.303(a), which excused the employee's notice
requirement "in extraordinary circumstances where such notice is not feasible." However, the regulation
was subsequently amended to delete the "extraordinary circumstances" exception. The Eighth Circuit has
held that this change nullified the constructive notice theory in the FMLA context. See Bosley v Cargill
Meat Solutions Corp. (8th Cir 2013) 705 F3d 777, 783.

§1.100 4. When Leave Is for Planned Medical Treatment

When an employee needs to take leave (intermittent or consecutive) because of planned medical
treatment, an employee must, before scheduling the treatment, consult with the employer and make a
"reasonable effort" to schedule the treatment with a view to minimizing the disruption to the employer's
operations, subject to the approval of the employee's health care provider or the health care provider of
the covered family member or service member. 29 USC §2612(e)(2)(A); 29 CFR §825.302(e)–(f); 2 Cal
Code Regs §§11090(c)(2), 11091(a)(2).

§1.101 C. Employer's Response to Employee's Notice of Need for Leave

When an employee gives notice of a need for FMLA/CFRA leave, or the employer acquires knowledge
that an employee's leave may be for an FMLA/CFRA-qualifying reason, the employer becomes obligated
to determine whether the employee is eligible to take FMLA/CFRA leave and whether it will designate the
leave as FMLA/CFRA leave and count it against the employee's leave entitlement. The employer must
then communicate this to the employee via three notices:

1. An eligibility notice (see §§1.101A–1.101B);

2. A notice of rights and responsibilities (see §§1.101C–1.101G); and
3. A designation notice (see §§1.101H–1.105).