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Feature
I. Introduction
For many Americans, the need to take time off to care for their elderly parents is
becoming an increasingly important and relevant issue. As a result, employers
will need to be prepared to deal with more frequent requests for time off for
this type of care. In responding to these requests, it is vital that employers and
human resources professionals be aware of the legal protections available to
employees who desire to take leaves of absence to care for their aging parents
under the federal Family Medical Leave Act (“FMLA”) and the California Family
Rights Act (“CFRA”).
II. FMLA/CFRA Overview
A. Eligibility
The FMLA and the CFRA entitle an eligible employee to unpaid time off to,
among other things, care for a parent with a serious health condition. An
employee is eligible if: (1) they have at least 12 months of service with the
employer, at any time prior to the leave; (2) they have at least 1,250 hours of
service with that employer in the 12 months prior to the date the leave is to
begin; and, (3) they work at a location in which the employer has at least 50
employees within a 75-mile radius of the employee’s work site. Note that the
FMLA and CFRA only apply to employers that employ 50 or more employees
for each working day during each of 20 or more calendar workweeks in the
current or preceding calendar year.
B. Length of Leave and Reinstatement
An eligible employee is entitled to 12 weeks or, more precisely, 480 hours, of
unpaid FMLA/CFRA leave in a given 12-month period.
Leave may be taken on an intermittent or reduced schedule basis under both
the FMLA and the CFRA. Employees requesting intermittent leave or leave on
a reduced leave schedule for planned medical treatment are required to make
a “reasonable effort to schedule the treatment so as not to disrupt unduly the
employer’s operations.” Obviously, in many cases, employees will need to take
time off to care for a parent on an emergency basis as well. In those cases,
leave cannot be denied on the grounds that the employer did not receive
proper notice.
At the conclusion of the leave, the employee is entitled to be restored to either
the position held prior to the leave or an equivalent position with equivalent
pay and benefits. The employer is required to maintain an employee’s health
benefits during a leave on the same terms and conditions as existed prior to
the leave. The employer is required to provide a guarantee of reinstatement in
writing upon a request of the employee.
There is a reinstatement exception for “key employees.” Employers need not
necessarily reinstate employees that fall within this exception when they return
from a FMLA/CFRA leave. To be considered a “key employee,” the individual
By Jennifer Cotner
Caring for
Aging Parents:
FMLA/CFRA
Concerns
