Don’t Assume that CFRA and FMLA are Identical

While there is great overlap between the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA), there are key differences that are a source of confusion for employers covered by both laws. Many times, CFRA and FMLA run concurrently—but not always—and they have different rules regarding covered family members, medical certifications, and interaction with other leaves. Refer to our key differences below and remember: when CFRA and FMLA run concurrently, employers should apply the law that provides employees the most protection in any given situation.

Key Commonalities  

CFRA and FMLA both provide up to 12 weeks of unpaid, job-protected leave in a 12-month period. CFRA and FMLA may be used for the employee’s own serious health condition (including during a workers’ compensation leave), to care for a covered family member with a serious health condition, baby bonding, and military exigencies for covered family members on active duty.

While CFRA and FMLA are unpaid, employees may elect to use their available vacation, PTO, or paid sick leave and/or apply for wage replacement benefits, such as State Disability Insurance or Paid Family Leave through the EDD.

If the employee has health insurance with you, group health coverage must continue during these leaves. Under both leaves, the employer can still charge the employee their share of insurance premiums, so long as the employer provides advance written notice regarding how premium payments must be made.

Key Differences

Covered Employers: CFRA covers employers with 5 or more employees. FMLA covers employers with 50 or more employees for at least 20 workweeks in the current or previous calendar year. Both leaves cover public agencies regardless of size.

Employee Eligibility: Eligible employees must have worked for you for 12 months and worked 1250 hours in the 12 months prior to taking leave. FMLA additionally requires that the employee is at a site with 50 or more employees within a 75-mile radius.

Covered Family Members: In addition to spouses, children, and parents, CFRA also covers a registered domestic partner, child of a registered domestic partner, grandchild, grandparent, sibling, parent-in-law, and a designated person.

Note how covered family members impact leave entitlements. For example, if an employee takes CFRA leave to care for a grandparent (who is a covered family member under CFRA but not FMLA), only CFRA will apply. This means the employee may still have their full FMLA entitlement available even after CFRA is exhausted.

Military Caregiver Leave: FMLA also allows up to 26 weeks in a single 12-month period for “military caregiver leave.” An eligible employee may use up to 12 of the 26 weeks for an FMLA-qualifying reason other than military caregiver leave, or may use up to 26 weeks entirely for military caregiver leave.

CFRA doesn’t offer “military caregiver leave,” but there may be times when this type of FMLA leave also qualifies as CFRA leave to care for a covered family member.

Contact with Health Care Provider: While both CFRA and FMLA allow the employer to request medical certification for the employee or their family member, there are different rules regarding the employer’s ability to contact the employee’s health care provider.

Under FMLA, with authorization from the employee, an employer can reach out to a health care provider to authenticate or clarify a medical certification, after giving the employee an opportunity to cure any deficiencies. “Clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. To reach out, the employer must use a health care provider, human resources professional, leave administrator, or a management official, but never the employee’s direct supervisor.

If CFRA applies, an employer may not reach out to a health care provider to clarify the medical certification. Under CFRA, employers may only reach out directly to the health care provider to authenticate that the certification is legitimate.

Second Medical Opinions: Under FMLA, second medical opinions are allowed for the employee or their family member if the employer has “reason to doubt” the certification. The employer may select or approve the provider (so long as the provider is not employed by the employer on a regular basis). The employer must pay for all costs of the second medical opinion.

If CFRA applies, there is a higher standard to request a second medical opinion. Second medical opinions are only allowed if the employer has a good faith, objective reason to doubt the validity of the certification and only for the employee’s own serious health condition – not for their family members. Consistent with FMLA, the employer may select or approve the provider (so long as the provider is not employed by the employer on a regular basis), and the employer must pay for all costs.

Recertification: Under FMLA, recertification is generally allowed once every six months and sometimes more frequently if other circumstances apply. However, if CFRA applies, recertification is allowed only if the time estimated by the health care provider expires, and additional leave is requested.

Interaction with Pregnancy Disability Leave (PDL): Pregnancy Disability Leave (PDL) and FMLA may run concurrently when an employee is disabled by pregnancy, childbirth, or a related medical condition. Because of this overlap, employers should evaluate whether FMLA applies whenever an employee begins PDL and, if eligible, designate the leave accordingly.

In contrast, PDL and CFRA never run concurrently. Time taken as PDL does not count against an employee’s CFRA leave entitlement.

After the child is born, an employee who requests baby bonding leave may be entitled to CFRA. FMLA may also apply and run concurrently with CFRA during baby bonding leave if the employee’s FMLA entitlement was not already exhausted during the pregnancy disability period.

This means a California employee can theoretically take approximately seven months of job-protected leave, if the health care provider certifies the employee needs the full PDL entitlement (which is 17.33 weeks), and then the employee takes 12 weeks of baby bonding under family and medical leave.

Want more information?

CEA members can access our comprehensive PDL v. CFRA v. FMLA Comparison Chart and, for required leave forms, refer to our Leaves of Absence Toolkit.