Who Is Eligible for FMLA Leave in California?
California employees generally qualify for federal FMLA leave when they work for a covered employer, have at least 12 months of service, have worked at least 1,250 hours during the previous 12 months, and work at a location where the employer has at least 50 employees within 75 miles. Workers who do not qualify for FMLA may still have job-protected leave rights under the California Family Rights Act (CFRA) or other state laws.
The Family and Medical Leave Act provides eligible employees with job-protected leave for qualifying family and medical reasons, but working in California does not automatically make someone eligible for FMLA leave.
Eligibility involves several separate requirements. Employer size, length of employment, hours worked, worksite location, and the reason for leave can all matter. California workers also have protections under the CFRA, which overlaps with federal FMLA in important ways but has broader coverage in some circumstances.
Understanding both laws is especially important before concluding whether an employee qualifies for protected leave.
Key Takeaways
- FMLA eligibility generally requires at least 12 months of employment, 1,250 hours of service during the preceding 12 months, and 50 employees within 75 miles of the applicable worksite.
- Remote employees generally use the office to which they report or from which assignments are made when applying the FMLA worksite test, not their homes.
- CFRA covers employers with five or more employees and does not use the FMLA's 50-employees-within-75-miles eligibility requirement.
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What Are the FMLA Eligibility Requirements in California?
For most employees, federal Family and Medical Leave Act (FMLA) eligibility involves several requirements rather than a single test. An employee generally must:
- Work for an employer covered by the FMLA
- Have worked for that employer for at least 12 months
- Have at least 1,250 hours of service during the 12 months immediately before leave begins
- Work at a location where the employer has at least 50 employees within 75 miles
The employee must also need leave for a reason protected by the FMLA. These requirements are separate. An employee who satisfies the 12-month service requirement, for example, can still be ineligible because of hours worked or the location requirement.
Does Your Employer Have Enough Employees for FMLA Coverage?
Private-sector employers are generally covered by the FMLA when they employ at least 50 employees for at least 20 workweeks in the current or preceding calendar year. Public agencies are covered regardless of employee count, as are public and private elementary and secondary schools. Employees of these employers still must satisfy applicable individual FMLA eligibility requirements.
Employer coverage and employee eligibility are related but different questions. A company can be large enough to fall under the FMLA, yet a particular employee remains ineligible because they have not worked enough hours or do not meet the worksite requirement.
Do You Need to Work for Your Employer for 12 Months?
Yes. Employees generally must have at least 12 months of employment with their employer before FMLA leave begins. Those months do not have to be consecutive.
This can matter for employees who leave a company and later return. Under federal rules, earlier employment generally counts unless the employee had a continuous break in service of seven years or more. Exceptions exist, including certain breaks involving military service or a written agreement concerning the employer's intention to rehire the employee.
A returning employee should not automatically assume that previous service no longer counts toward FMLA eligibility.
How Does the 1,250-Hour Requirement Work?
In addition to satisfying the 12-month employment requirement, most employees generally need at least 1,250 hours of service during the 12 months immediately before FMLA leave starts. Twelve months employed and 1,250 hours worked are separate tests.
A longtime employee who recently reduced their schedule or spent significant time away from work can satisfy the service-duration requirement without satisfying the hours requirement.
For most workers, only hours actually worked count toward the 1,250-hour threshold. Paid or unpaid time away from work generally does not count. That means vacation, sick leave, holidays, PTO, and prior FMLA leave are generally not included simply because the employee received pay during the absence.
Special rules apply to certain employees, including airline flight crews.
What Is the FMLA 50-Employees-Within-75-Miles Rule?
Federal FMLA eligibility generally requires an employee to work at a location where the employer employs at least 50 employees within 75 miles. This is different from asking whether the employer has at least 50 employees nationwide.
For example, a company might employ hundreds of workers spread across small locations. An employee could work for an FMLA-covered employer yet fail the individual worksite test if fewer than 50 employees are employed within 75 miles of the applicable worksite.
The location requirement is particularly important in California because the California Family Rights Act (CFRA) does not impose the same 50-employees-within-75-miles test.
How Does FMLA Eligibility Work for Remote Employees in California?
Remote work can make the FMLA worksite rule seem more complicated than it is. For FMLA eligibility purposes, an employee's home is generally not considered the worksite simply because the employee performs their job there. For an employee who works from home or otherwise teleworks, the relevant worksite generally is the office to which the employee reports or from which assignments are made.
For example, a California employee may work full-time from home and report to an employer's office 100 miles away. The employee does not simply count coworkers who happen to live within 75 miles of the employee's residence. The FMLA analysis generally looks to the employer's applicable worksite and employees whose worksites fall within the relevant radius.
This distinction can materially change an employee's eligibility.
Does Your Reason for Leave Qualify Under the FMLA?
Meeting the employer, service, hours, and worksite requirements establishes employee eligibility, but the leave itself must also be for a qualifying reason. FMLA leave can protect qualifying absences involving:
- Birth of a child and bonding
- Adoption or foster-care placement and bonding
- An employee's serious health condition
- Care for a qualifying spouse, child, or parent with a serious health condition
- Certain qualifying military exigencies
- Care for a covered servicemember with a serious injury or illness
Eligible employees generally can take up to 12 workweeks of FMLA leave during the applicable 12-month period for most qualifying reasons. Military caregiver leave can provide up to 26 workweeks during a single 12-month period.
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How Is California CFRA Eligibility Different From FMLA Eligibility?
California workers should not stop their analysis after determining whether they qualify for federal FMLA leave. The California Family Rights Act provides separate job-protected leave rights and differs from FMLA in several important respects.
| Eligibility Issue | Federal FMLA | California CFRA |
|---|---|---|
| Private employer size | Generally 50+ employees | Generally 5+ employees |
| Length of service | Generally 12 months | Generally 12 months |
| Hours of service | Generally, 1,250 hours in the preceding 12 months | Generally, 1,250 hours in the preceding 12 months |
| 50 employees within 75 miles | Generally required | Not required |
| Family members | Includes qualifying spouse, child, and parent | Includes broader qualifying relationships, including domestic partners, grandparents, grandchildren, siblings, and a designated person |
Under current CFRA rules, a designated person can be an individual related by blood or whose association with the employee is the equivalent of a family relationship. An employer can limit an employee to one designated person during a 12-month period.
Can You Qualify for CFRA Leave Even if You Do Not Qualify for FMLA?
Yes. This is one of the most important eligibility points for California workers. An employee might fail the FMLA's worksite requirement because fewer than 50 employees work within 75 miles, but still qualify for CFRA leave because California does not impose that requirement.
Similarly, someone working for a private employer with between five and 49 employees generally would not receive federal FMLA protection based on that employment but could satisfy CFRA's employer-size requirement. CFRA can also protect leave to care for certain family members who fall outside the federal FMLA family definitions.
When both FMLA and CFRA apply to the same leave, the laws generally operate concurrently. When their coverage differs, California law can provide protection beyond what the federal FMLA offers.
How Do FMLA, CFRA, and Pregnancy Disability Leave Interact?
Pregnancy illustrates why California workers should not treat FMLA and CFRA as interchangeable laws. California Pregnancy Disability Leave (PDL) applies to qualifying employees disabled by pregnancy, childbirth, or a related medical condition when the employer has five or more employees.
Unlike FMLA and CFRA, PDL eligibility does not require 12 months of service or 1,250 hours worked. For an employee who is also FMLA-eligible, qualifying FMLA leave generally runs concurrently with pregnancy disability leave.
CFRA treats pregnancy differently. Pregnancy disability itself is addressed through PDL rather than CFRA leave. After pregnancy disability leave, an eligible employee can take CFRA leave to bond with a new child. As a result, an eligible California employee can have different leave rights during pregnancy disability and after childbirth.
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What Should You Do if Your Employer Says You Are Not FMLA-Eligible?
An employer's statement that an employee does not qualify for FMLA does not answer every California leave question. If eligibility is disputed, important facts to check include the employee's service dates, hours worked during the relevant period, employer size, applicable worksite, and reason for leave.
For remote employees, determining which office counts as the FMLA worksite can be especially important. For returning employees, earlier periods of employment may affect the 12-month calculation.
Employees should also determine whether CFRA, Pregnancy Disability Leave, disability accommodation requirements, or another California protection applies independently. California's leave laws can overlap with other employment protections. Understanding California employment law as a whole can therefore be important when an employee does not fit neatly within the federal FMLA eligibility rules.
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Frequently Asked Questions About California FMLA Eligibility
Can part-time employees qualify for FMLA in California?
Yes. Part-time status does not automatically make an employee ineligible. The employee must still satisfy the applicable requirements, including generally having 1,250 hours of service during the 12 months before the leave begins.
Do previous periods of employment count toward the 12-month requirement?
They can. The 12 months generally do not need to be consecutive. Earlier employment generally does not have to be counted after a continuous break of seven years or more, subject to exceptions such as certain military-service absences and written agreements.
Can a remote California employee qualify if fewer than 50 employees live nearby?
Yes. The employee's home generally is not the relevant worksite for FMLA eligibility. For teleworkers, the worksite generally is the office to which the employee reports or from which assignments are made.
Can I qualify for CFRA but not FMLA?
Yes. CFRA generally covers employers with five or more employees and does not impose the FMLA's 50-employees-within-75-miles worksite requirement. CFRA also recognizes broader qualifying family relationships.
Does PTO count toward the FMLA 1,250-hour requirement?
Generally, no. The federal hours-of-service calculation generally counts hours actually worked rather than paid time away from work, so vacation, sick leave, holidays, and other PTO generally do not count toward the 1,250-hour requirement.
Talk to a California FMLA Lawyer at Greenberg Gross LLP to Learn More About Your Rights
Determining whether an employee qualifies for protected leave can require more than counting months of employment. Hours worked, employer size, worksite rules, the reason for leave, and California's separate CFRA protections can all change the analysis.
The California FMLA lawyers at Greenberg Gross LLP can evaluate your eligibility, determine which state and federal leave protections apply, and assess whether an employer interfered with your protected leave rights or retaliated against you for exercising them.
Call Greenberg Gross LLP at (949) 383-2800 or contact us online for a free, confidential consultation. Our team is available 24/7.