Legal Question in Medical Leave in California

As a part-time emploee for the school district in California am I entitled TO Family Medical leave paid? or not paid to care for my elder mom who has moved into our home and requires care.

She has Parkinson and is in need of 24 hr. care.

Thank-you,

Laura Gargas


Asked on 1/12/11, 3:34 pm

1 Answer from Attorneys

Terry A. Nelson Nelson & Lawless

If and when you are denied legally protected leave, or are illegally discriminated or retaliated against because of requesting or taking the leave, or you are refused accommodation, then you can consider legal claims.

If your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA / CFRA medical leave when you are unable to work [or must care for an immediate family member] because of a ‘SERIOUS health condition’ [that is properly confirmed and documented by the doctor], continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The employer can require you to use all accrued unused leave[s] as part of the 12 weeks, so as to make that portion 'paid'. The leave may be taken on reasonable intermittent basis if that need is properly documented by your medical provider. Being out sick with the minor illness or injury does not fall within the protections.

If you are out longer than those guarantees, they can fire you.

If your employer has a policy requiring they hold your job for you for a specific period of time while on disability, longer than the FMLA / CFRA rules provide, that is enforceable.

Overriding those stated protections, just because you are on leave does not mean you can’t be terminated. You have no special exemption against lay offs or termination due to business reasons. A company in downsizing can lay off a FMLA / CFRA leave person, as long as they can show they aren’t targeting ‘because of the leave’. They are simply risking claims if they do.

Upon termination from employment, you are entitled to COBRA conversion of your medical benefits [if any], allowing you to pay for and retain your insurance coverage.

Now, if they violated those rules, contact me for the legal help you'll need. I'll be happy to do so. I've been doing these cases for over 20 years.

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Answered on 1/17/11, 4:17 pm


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