FMLA - San Francisco Employment Lawyer | Bay Area Discrimination Attorney

Can Your Employer Penalize You for Taking Time Off for a Sick Child?

On Behalf of Le Clerc Le Clerc LLP
May 7, 2025
CFRA, FMLA, Parental Leave, Protected Leave

Nothing introduces surprises into your life quite like having a child. More often than not, those surprises are great, bringing copious amounts of joy to your family. Then there are the surprises that are less exciting, like sudden illnesses. Whether minor or serious, when part of your family is bedridden, you want to be home to manage as much of the unexpected chaos as you can. But what about your job? Can your employer penalize you for taking time off to care for your sick child?

California has several employee protections to aid with all the unexpected ups and downs of unpredictable family health conditions, such as the California Family Rights Act (CFRA), the Family and Medical Leave Act (FMLA), and California’s Kin Care Law. Understanding these laws is imperative for you to successfully tend to any family medical needs while maintaining your employee rights. If these rights are violated by your employer, whether via a wrongful termination or illegal retaliation, an experienced employee law attorney can help.

Why Parents Need Legal Protection When Caring for a Sick Child

Some health care is easy to plan for, like scheduled surgery or the birth of a child, but life can’t always be predictable. Sudden illness, chronic pain flare-ups, and all types of accidents happen, and you want to be available when your family needs you. Some employers may react poorly to unexpected leave, saying that you didn’t give enough notice or they can’t spare you right now with “the big deadline coming up.” By understanding your different options and your company’s policies before an emergency, you can quickly and correctly utilize all of your available leave and legally shield yourself from any negative feedback or retaliation.

California Family Rights Act (CFRA): What It Covers

CFRA requires employers with five or more employees to provide up to 12 weeks of protected job leave during a 12-month period for employees to either care for their own medical needs or those of their family. To qualify for CFRA, you must have worked for your employer for more than a year and have worked at least 1,250 hours during the previous 12 months. CFRA’s 12-week period covers caring for a “designated person” or “any person related by blood to the employee – such as the employee’s aunt, uncle, or cousin. A designated person can also be any person who is like family to the employee, such as the employee’s unmarried partner or best friend (when in a relationship equivalent to family).”

Though an employer is required to provide this time off and continue your benefits, they are not required to pay you when using CFRA. There are different types of paid disability you may qualify for through the state, such as California’s Paid Family Leave program or State Disability Insurance. Employers may also require you to support your leave with a medical certification issued by a healthcare provider. If using CFRA for planned medical needs, you should provide as much notice as possible, but in unforeseen circumstances, you must provide your employer with notice as soon as possible within 15 days after starting leave. What an employer may not do is retaliate against you for rightfully using CFRA. Forms of retaliation include negative employee reviews, demotions, denying promotion opportunities, or termination.

Family and Medical Leave Act (FMLA): Federal Protection for Parental Leave

FMLA, a federal employee protection used across the United States, is similar to CFRA but has some key differences. Employee qualifications are the same for both FMLA and CFRA and both provide 12 weeks of protected leave within a 12-month period. However, FMLA is only required of employers with 50 or more employees rather than five or more. While FMLA does cover time off to take care of your child, “designated persons” are restricted to a spouse, child, or parent.

You can use both FMLA and CFRA during a 12-month period. CFRA is more lenient in what it covers, so it is suggested to use that first, and then if the care for your family extends past the initial 12 weeks of CFRA and is still covered by FMLA, you can take protected job leave for up to 24 weeks. With FMLA, employers may require more documentation, such as a second or third medical opinion or periodic re-certification of the medical needs.

Kin Care Law in California: Using Sick Leave for a Child’s Illness

California’s Kin Care Law (Labor Code § 233) provides you with another way to take time off to care for your child. Employers who provide sick leave must allow employees to use the amount of sick time accrued during six months of working to attend to family health concerns. Under Kin Care, family includes your child, spouse, domestic partner, parent, grandparents, grandchild, or sibling.

While helpful if you have available sick leave and time needed for care is short, Kin Care is attached to leave that is already available to you, while CFRA and FMLA are additional leaves outside of what your employer provides. Kin Care is an excellent option when:

No advance notice can be given
The care period is predicted to be a short time frame
If your company, you, or your reason for needing leave does not qualify for CFRA or FMLA

For unexpected incidents like car accidents, injuries, or chronic pain flare-ups, Kin Care allows you to quickly attend to your family’s medical needs.

Can an Employer Penalize You for Taking Time Off for a Sick Child?

Employers cannot retaliate or penalize employees who use CFRA, FMLA, or Kin Care. Retaliatory or penalizing actions could be:

Demotion
Termination
Disciplinary actions
Job reinstatement to a lower position

If an employer retaliates because of your leave, there are legal paths that can provide you with financial compensation and job reinstatement.

These legal paths are available if you take a protected absence, such as leave under CFRA or other California laws. If an absence is unprotected, though, like taking CFRA for reasons other than its intended use, an employer may have ways of penalizing you. Types of unprotected absences include:

Not providing enough notice when capable of doing so
Not providing medical certification
Not using CFRA, FMLA, or Kin Care for protected uses (newborn, adoption, or foster bonding, care for qualifying family members (or military members) with serious health conditions, or qualifying incidents of domestic abuse, sexual assault, and stalking)
Using more than half your sick leave to care for family under Kin Care

Before taking leave, read through company policies to fully understand what an employer expects of you when taking leave, and work through any confusing policies with HR or with legal aid.

When Your Time Off Is Not Protected: Know the Limits

Legal protection might not apply to companies too small to qualify for CFRA or FMLA. Other times you may not be protected are when you:

Extend your leave beyond the 12 weeks or outside of the 12-month period.
Use leave for unprotected scenarios.
Don’t provide adequate notice (in both foreseen and unforeseen circumstances) or medical documentation.
Have an employee status that does not qualify for leave, such as being an independent contractor or not working the 12 months and 1,250 hours.

You may have limited legal options if you use unprotected leave.

What to Do If You Face Retaliation for Caring for a Sick Child

Signs you may be facing illegal retaliation range from termination or a pay cut to negative social consequences, such as being passed over for promotions, negative feedback, or exclusion from projects or events. If you feel any actions taken against you are in retaliation to using your protected leave, gather information regarding your leave, document any evidence, including verbal and electronic conversations, report concerns to HR, and consult an attorney. If you want to take legal action, you can file a complaint with the California Civil Rights Department (CRD) or U.S. Department of Labor. With proper counsel, potential remedies could include reinstatement, back pay, and emotional distress damages.

How a California Employment Attorney Can Help

Seeking legal guidance at the first sign or relation or in the event of a wrongful termination is invaluable. An employment lawyer can assess the legitimacy of your case, help gather evidence, and represent you in a claim or lawsuit, providing knowledge and experience to secure you your best outcome. At Le Clerc & Le Clerc, LLP, we only represent employees and are dedicated to protecting employee rights. We have years of experience representing parents in cases about FMLA, CFRA, and other types of leave, as well as workplace compensation, disability, and discrimination cases.

When you need time off to care for your sick child, CFRA, FMLA, and Kin Care provide legal job protection. While employers may not penalize you for protected leave, understanding the scope and limits of these leave types is crucial to ensure a smooth leave and return to work. If you are unsure if you qualify for medical leave or feel your employer has illegally retaliated against your leave use, contact Le Clerc & Le Clerc, LLP for a confidential consultation.

What to Do If You’re Fired During FMLA Leave

On Behalf of Le Clerc Le Clerc LLP
January 30, 2024
FMLA, Workplace Discrimination

Most Americans have the right to take up to three months of unpaid leave to recover from injuries or care for a sick family member. This right is protected under the federal Family and Medical Leave Act (FMLA). If you live in California, you’re also protected under the California Family Act (CFRA) and have even broader rights to take time off.

Under these laws, a covered employer can’t take “adverse employment actions” against you, like termination, demotion, or cutting your hours when you return to work. However, many employers ignore this restriction and fire workers for taking protected leave anyway.

If you’ve taken FMLA or CFRA leave and been fired for it, you may have grounds to take legal action against your employer. Here’s what you need to know about these laws and what you can do if you’ve already been fired for taking protected time off.

How FMLA and CFRA Protect Your Job

Both the FMLA and CFRA require covered employers to grant covered employees up to 12 weeks of unpaid leave per 12-month period to recover from illness or injury or to care for a sick family member. They also permit people to take time off for the addition of a child to their household through birth, adoption, or foster placement and for qualifying military exigencies.

During this time, employees are not paid, but they remain employed, and their benefits must continue. Furthermore, when they return to work, they must be given their old job or one that is functionally indistinguishable. This allows workers to take time away from work for family reasons without risking their entire careers.

California’s laws cover significantly more state residents than the FMLA does. Under the CFRA, covered businesses include any company with five or more employees, whether they are full-time or part-time. Workers qualify for CFRA leave if they have worked for an employer for at least one year and have worked at least 1250 hours for that employer in the past year.

Furthermore, the state no longer requires specific legal relationships. Workers can take time off under CFRA to care for a “designated person,” including anyone to whom they are legally related or whose association with the employee is the equivalent of a family relationship.

What Counts as Illegal Retaliation Under FMLA and CFRA?

Employers cannot retaliate against workers for taking FMLA or CFRA leave before, during, or after their time away. That is why this leave is considered “protected.” Employees are supposed to be able to take this time off without risking the loss of their job.

However, too many employers either misunderstand CFRA or disregard it. These companies often view their workers as expendable resources and look for ways to discourage them from doing anything that may inconvenience the business.

One way they do this is by finding excuses to terminate employees who request CFRA leave. This allows them to replace the worker with someone who does not need time away and discourages other employees from requesting their due time off. However, this type of termination is illegal, and the fired employee can file a claim against the business to get their job back and receive compensation for their losses.

Termination because of CFRA leave isn’t the only type of retaliation the law bans. Other forms of illegal retaliation for CFRA leave include:

Cutting your hours before or after your time off
Demoting you
Cutting your pay
Refusing to give you the same job or a functionally identical one when you return

In short, any adverse employment action your employer takes against you because you request CFRA or FMLA leave is unlawful.

Benefits of Holding Your Employer Accountable for FMLA Discrimination

If you have suffered from an unlawful FMLA termination, you do not have to accept that your job is gone. You can take legal action against your employer to fight for your career and your lost pay. Pursuing your claim has benefits such as:

Job Reinstatement: If you’ve been fired, demoted, or had your hours cut, you can request that you be reinstated to your old job. Reinstatement will allow you to return to the work you did before suffering retaliation for your request, with the same pay and benefits as you had before you left.
Damages for Lost Wages: Most forms of retaliation for requesting CFRA leave involve lost wages. Whether you’ve had your hours or pay cut or were fired, you can request back pay equivalent to the pay and benefits you did not receive. This is typically calculated based on the amount you made and the benefits you received in the months before you requested leave.
Compensation for Emotional Distress: Losing your income is stressful, especially when you or a loved one is experiencing significant medical distress. You may be able to pursue financial compensation for the emotional damage your employer’s actions caused you.

In short, you may be able to reclaim your job, the pay and benefits you lost, and even additional funds to make up for the stress of the matter.

Proven Legal Representation for FMLA Discrimination Cases

You most likely have the right to take FMLA or CFRA leave in California to care for yourself or a loved one. If you’ve been fired for taking protected leave, you can stand up for your rights to keep your job, income, and benefits. The first step is to reach out to an experienced San Francisco employment law attorney. At Le Clerc & Le Clerc LLP, we specialize in protecting your right to fair employment under state and federal law. We have years of experience helping our clients address employment law violations like unlawful FMLA terminations. We are available to advocate on your behalf in court or at the negotiation table. Schedule your free consultation today to learn more.

When Is Postpartum Depression a Disability in California?

On Behalf of Le Clerc Le Clerc LLP
September 19, 2023
Disability Discrimination, FMLA, Pregnancy Discrimination

Postpartum depression is often dismissed as a condition that describes new parents who feel tired and overwhelmed. However, it’s a much more serious and widespread condition than many people realize. According to the CDC, about one in eight new mothers will experience postpartum symptoms during or after their pregnancy.

Mothers experiencing postpartum depression describe feeling guilty and worthless; many even experience suicidal ideation. These emotions and the physical symptoms that accompany depression can be debilitating, making it harder to accomplish daily care tasks, much less go back to work.

Luckily, in California, parents may have the option to take protected disability leave or receive other accommodations for postpartum depression. Here’s what you need to know about when pregnancy-related depression becomes a disability, when it qualifies for leave, and how to seek accommodations for your condition.

Are Pregnancy-Related Health Issues Considered Disabilities?

For decades, health conditions related to pregnancy fell into a gray area in US law. Until the passage of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), there was significant debate about whether pregnancy-related conditions could qualify as “impairments” under the original ADA. Many courts held that they did not, as a pregnant person is not normally perceived to have a disability, and their abilities would no longer be limited after their child is born.

The ADAAA changed this by requiring the definition of a disability to be construed broadly. It also clarified that the cause or duration of a disability does not impact the disabled person’s rights. As such, employers were required to grant the same accommodations or medical leave to people with pregnancy-related conditions as non-pregnant workers with equivalent impairments.

However, even after the ADAAA was implemented, only conditions caused by pregnancy were considered impairments. This included mental and physical health issues ranging from preeclampsia to postpartum depression, but pregnancy itself was not considered a disability and was not subject to the ADAAA. It was not considered grounds for accommodations or protected leave nationwide until the Pregnant Workers Fairness Act (PWFA) was enacted in June 2023.

Pregnancy Protections vs. Disability Protections

But does it matter whether being pregnant is considered a disability? It’s because there are a variety of protections available in California for both pregnant and disabled workers that may not overlap. Understanding these protections and when they are available can help new parents make the most of their rights. The most important state protections for expecting parents include:

California Family Rights Act (CFRA) Leave: Under the CFRA, all employers with five or more employees must provide their workers up to 12 weeks of unpaid leave in a rolling 12-month period to recover from serious health conditions or bond with a new child. However, expecting parents may hesitate to take this leave for disabling conditions during their pregnancy if they expect to need time to recover from postpartum depression after labor.
Pregnancy Disability Leave (PDL): California also requires companies with five or more workers to provide employees with up to four months of protected pregnancy disability leave if a person is disabled by a pregnancy, childbirth, or related medical condition. This only applies when a condition is disabling and runs simultaneously with CFRA leave.
Reasonable Accommodations: California required employers to provide reasonable accommodations for pregnant people long before the federal PWFA was enacted. These accommodations can include additional time off from work for health concerns if necessary and reasonable.
State Disability Insurance (SDI) and Paid Family Leave (PFL): If someone needs to take leave for their own disabling health condition, they may be eligible for SDI wage replacement. They may also qualify for PFL if they take CFRA leave to bond with a new child.

Mothers experiencing depression related to their pregnancy may be able to maximize their protected time off by using PDL and CFRA leave concurrently while they are disabled. Once they are no longer impaired, if they have CFRA leave remaining, they can use it as bonding time with their child.

When Does Postpartum Depression Constitute a Disability?

There is no strict definition of when the baby blues become disabling postpartum depression. However, the California Civil Rights Department (CRD) explicitly names conditions such as severe morning sickness, gestational diabetes, and postpartum depression as conditions that may be grounds for PDL.

Additionally, the CRD states that a condition caused by a pregnancy is determined to be disabling by the person’s healthcare provider. As a general rule of thumb, healthcare providers typically determine that someone is disabled according to their employers’ purposes if a mental or physical health concern prevents them from accomplishing core job responsibilities. For example, depression may be incapacitating if you cannot focus or struggle to get out of bed.

Your provider will give you a note for your employer explaining what accommodations or leave you need to recover. Your employer must provide you with the accommodations or PDL your provider recommends unless it places an “undue hardship” on the business. Furthermore, your employer cannot ask about the details of your condition, nor can your provider share those details without your permission.

What to Do If You’re Denied Accommodations for Postpartum Depression

While significant postpartum depression is almost certainly disabling, some employers may still attempt to deny your request for accommodations or PDL. If your manager refuses to grant you leave or you experience retaliation because of your request, it’s time to get professional help.Le Clerc & Le Clerc LLP is there for you. We have decades of experience representing pregnant employees whose rights have been violated. We are prepared to advocate for your right to PDL and reasonable accommodations in the workplace. Get in touch to learn more about how we can help you.

How to Notify Your Employer About FMLA Leave

On Behalf of Le Clerc Le Clerc LLP
June 20, 2023
FMLA

You likely have the right to take leave from work to care for your family or recover from a health condition under the Family and Medical Leave Act (FMLA). However, having the right and exercising it are very different things. Many people hesitate to take their legally protected time because they don’t know how to bring it up with their employers.

Don’t let a lack of knowledge force you to keep working when your family needs you. If you are eligible for this time off, your workplace must grant it and cannot retaliate against you for your request. All you need to do is ask for it. Here’s how to tell your boss you’re taking FMLA leave the right way.

When Can You Take FMLA Leave?

Before you request leave, you should ensure you’re eligible for it. In California, you’re covered by both the FMLA and the California Family Rights Act (CFRA), which provides more protections. Under CFRA, all employers with five or more workers must permit them to take up to 12 weeks of family or medical leave per 12-month period.

Employees must have worked for their current employer for at least 12 months before their start date, though this may be non-consecutive. Additionally, workers must have performed at least 1,250 hours of labor for the company in the past year.

If you meet those criteria, you’re eligible for protected leave in the following circumstances:

To recover from a health condition or illness that makes you unable to perform your job duties
To care for a designated person suffering from a serious medical condition
To bond with a new child

During your time away, your employer must continue your benefits, though they do not need to pay you. Additionally, they must allow you to return to your previous role or a functionally identical position after you come back to work.

Informing Your Employer About Your Impending Leave

You can request protected leave if you’re confident you meet the terms above. Your employer cannot deny your request and cannot penalize you for it. However, you are required to tell your company when you need leave and provide an explanation.

However, this explanation does not need to be an in-depth exploration of your family’s medical history. In fact, your employer cannot request access to your medical records or otherwise invade your privacy. So, what do you have to share?

What You Need to Tell Your Employer

There is no standard report or form provided by the state or federal government related to protected leave requests. Your employer may have such a form, but it is not legally required. You’ll most likely request it through your employer’s normal call-in system. In your request, you must:

Give your employer reasonable notice. The CFRA and FMLA require employees to request leave as soon as possible to give their employers time to prepare for their absence. What constitutes reasonable notice depends on your circumstances.
Explain why your request is protected under the law. This means explaining how your request relates to a serious medical condition or a new child.
Document that you requested the time off. It’s best to inform your employer about your need for time off by email since this records exactly what you said and when. If you tell them in person or over the phone, follow up by email to confirm.

After you make your request, your employer can require you to provide a medical certification from a qualified healthcare professional. However, they must give you at least 15 days to get this certification.

What You Do Not Have to Share

Your employer does not have the right to detailed information about your health. They cannot request your medical history or demand you sign a medical release or waiver. You don’t even have to share an exact diagnosis. You need to prove it fits the criteria established by the CFRA or FMLA.

For example, if you feel uncomfortable disclosing the reason for an injury, you can simply state you were seriously hurt and require physical therapy. If you are undergoing surgery, you do not need to explain why; you just need to note you need time to get surgery and recover. If you welcome a child, you don’t need to say whether you are adopting, fostering, using a surrogate, or any other information, just that you need child bonding time.

What Constitutes Reasonable Notice for Family Leave?

Reasonable notice varies. If you know well in advance that you’ll need to take time off work, you must give your employer at least 30 days advance notice. This gives them time to find a temporary replacement for you or otherwise tweak the schedule to cover for your absence.

If you find out you need leave less than 30 days in advance, you need to notify your employer as soon as possible. This is usually defined as within one business day of learning you’ll need leave.

If you need to leave for an emergency, let your employer know as soon as possible. If you can, follow standard call-out policies or sick time request policies.

How to Respond if Your Employer Denies FMLA Leave

If you’re eligible for protected leave and your employer denies your request, they are in the wrong. Le Clerc & Le Clerc LLP is here to help. Our expert California employment law attorneys are on your side. Reach out today to discuss your denied leave request and learn more about your options. We can help you stand up for your rights and represent you if you need to take legal action. Don’t let your employer violate your rights or put your health or family at risk. Let us help.

FMLA Turns 30: How Your Rights Have Changed

On Behalf of Le Clerc Le Clerc LLP
March 27, 2023
CFRA, Employment Law, FMLA

The federal Family and Medical Leave Act (FMLA) turned 30 in February 2023. This bill was a groundbreaking step for workers’ rights, but many argue it is no longer enough. Many legislators are advocating to expand the scope of the FMLA and providing workers with more options and security if they need to care for their families.

While the FMLA remains the primary federal law providing workers the opportunity to take family leave, many states have implemented similar laws to address its flaws. In honor of the bill’s 30^th anniversary, let’s explore the history of the FMLA, how California has improved it, and how your rights as a worker have expanded in the past three decades.

History of the FMLA

Today, a law like the FMLA seems like it makes sense. Many people take it for granted that established employees can take time off from work to recover from an illness, care for a family member, or welcome a new child to their family. However, there was a long journey before the bill was signed into law in 1993.

Before its passage, workers had no protections if they needed to take a leave of absence. While employers could offer parental or family leave in their employment contracts or on a case-by-case basis, it was not required. As such, workers who needed to care for family often lost their jobs, and many struggled to return to the workforce afterward.

That’s why proponents of the bill introduced the FMLA before Congress every year from 1984 to 1993. The bill was passed by Congress twice, in 1991 and 1992, but vetoed by then-president George H.W. Bush. There was strong pushback against the bill by corporate interests, which argued that allowing workers to take time off of work – even unpaid time – could hamstring businesses and hurt the economy.

It wasn’t until President Clinton was elected that the bill was finally passed. In the three decades since, U.S. employees have used the bill more than 200 million times to take time away from work to care for their families without worrying about long-term unemployment.

This has had an outsized effect on women and low-income families in particular. Women can better maintain their jobs after having children because they can take time to recover without risking future employment. Meanwhile, low-income workers have more freedom to care for their families without quitting their jobs. If it has affected the economy, it has been positive by keeping more people in work.

Still, the FMLA is significantly less comprehensive than similar leave laws in countries like France, the U.K., and Spain. Many states have taken it upon themselves to improve on the FMLA to give workers more protection, safety, and security.

Improving on the FMLA: The California Family Rights Act

California’s main improvement on the FMLA is called the California Family Rights Act, or CFRA. This bill expands almost every element of the FMLA to cover more people and situations. Here’s how the two compare:

Factors	FMLA	CFRA
Length	Up to 12 weeks of unpaid leave with a guarantee of reinstatement and a continuation of health benefits	Same
Eligibility	Any worker who has worked for a company for at least 12 months and performed 1250 hours of work for the company in that time	Same
Reason for Leave	New child or foster child brought into the family, a serious health condition of the employee, their child, spouse, or parent, or qualifying exigencies for the active military duty of the same.	New child or foster child brought into the family, a serious health condition of the employee or a designated party, or qualifying exigencies for the active military duty of the employee or a parent, child, or spouse.
Covered Employers	Any employer with 50 or more employees within 75 miles of the employee’s location, all primary and secondary schools, and all public agencies	Any employer with five or more California employees, without regard to geographic proximity, all primary and secondary schools and public agencies
Exemptions	Employers may withhold FMLA leave to key employees: those who are among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite.	No “key employee” exemptions

Overall, the CFRA covers more people, offers fewer exceptions, and gives workers more freedom to care for their loved ones.

Furthermore, California also offers the Paid Family Leave (PFL) program to supplement income for workers who take time off from work under the CFRA. In general, if a worker is eligible for CFRA, they are likely to be eligible for PFL as well. This allows California workers to take time off for pregnancy, new children, or a loved one’s illness without sacrificing all of their income.

There is no equivalent federal program; people in states without the PFL program do not have a national alternative to cover their financial losses while taking unpaid leave. Federal advocates of expanding the FMLA are calling for this to change and for many elements of the CFRA to be adopted nationwide. However, this has not yet occurred.

Defending Your Rights Under the CFRA

While the FMLA still leaves much to be desired, California’s CFRA has closed many of the gaps. Your employer cannot deny it as long as you’re eligible for CFRA leave. If they do, you have the right to take legal action for your losses.At Le Clerc & Le Clerc, LLP, we specialize in helping workers like you defend your rights under the CFRA. If your employer has violated your right to leave under the bill, we can help. Learn more about how we can hold your employer accountable, fight for your job, and help you pursue unpaid wages by scheduling your consultation today.

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