FMLA and CFRA: A Comparison

How does the California Family Rights Act (CFRA) leave differ from FMLA leave? Do they run concurrently, or is an employee entitled to both?

The California Family Rights Act (CFRA) amended the 1991 California family and medical leave law to mirror the federal Family Medical Leave Act (FMLA) generally. However, with the enactment of various California laws, differences between CFRA and FMLA have become more numerous.

Similar to FMLA, CFRA allows eligible employees up to 12 weeks of leave in a 12-month period for the birth of a child, the adoption of a child, or the placement of a child in foster care. It also allows leave to care for a seriously ill family member or for the employee's own health condition, other than pregnancy-related disability.

Although the provisions of CFRA are similar to FMLA with respect to the birth of a child or the placement of a child for adoption, an employee in California has no protection under this law for pregnancy-related disability. In other words, pregnancy is not covered or considered a serious health condition under CFRA. This leave can be used by an employee only following the birth of a child.

Under FMLA, a disabling condition related to pregnancy is considered a serious medical condition. If a woman is having a difficult pregnancy and needs time off prior to the birth of the child, that time will count toward her 12-week leave entitlement under FMLA.

FMLA leave runs concurrently with, and is not in addition to, the leave entitlements provided by CFRA leave.

Pregnancy disability is not protected under CFRA, but it is protected under FMLA as a serious health condition. If an employee taking pregnancy disability leave under California law (see the next paragraph) is eligible for FMLA leave, the pregnancy disability leave period and FMLA run concurrently. At the conclusion of the pregnancy disability leave period, or at the end of four months of pregnancy disability leave, whichever occurs first, the employee may take a new-child bonding leave under CFRA for up to 12 workweeks (provided she did not use CFRA leave in the preceding 12-month period).

The California Fair Employment and Housing Act (CA-FEHA), the same state law that prohibits discrimination, provides protection for pregnancy-related disabilities. It allows employees who are disabled by pregnancy, childbirth or a related medical condition to take up to four months of protected paid Pregnancy Disability Leave (PDL). However, PDL does not provide any time off for the birth or placement of a child in foster care or adoption.