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Taking leave from work to care for sick family members is protected by law

Posted by Joe Sayas | Sep 15, 2018 | 0 Comments

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Q: I have been working for 5 years in a Los Angeles company with 52 employees. I requested a leave of absence from work to care for my sick 21 year-old daughter. My boss denied the request and said my position will be given to someone else if I take off. Is this legal?

A: No, it is not. Your rights are protected under the California Family Rights Act (CFRA). CFRA provides that employees have the right to take a leave of absence for the following reasons:

  • For the employee's own serious health condition 
  • For the serious health condition of the employee's child, parent or spouse 
  • Birth of a child for purposes of bonding 
  • Placement of a child in the employee's family for adoption or foster care 

California employers, including non-profit religious organizations, are subject to CFRA if they employ 50 or more part-time or full-time employees. Covered employers also include the State of California, its political and civil subdivisions, and cities and counties, regardless of the number of employees.

To be eligible for CFRA leave, an employee must be a full-time or part-time employee with more than 12 months of service with the employer, and have worked at least 1,250 hours in the 12-month period before the date the leave begins. Qualified employees may be entitled to a total of up to 12 workweeks in a 12 month period, which does not need to be taken continuously.

Employees must give advance notice to take a CFRA leave. While a verbal notice is sufficient, providing a written notice is advisable. The notice must state the reason for the leave and its anticipated duration. An employer may require 30 days advance notice if the need for the leave is foreseeable. If the leave is an emergency, notice must be given as soon as possible. The employer must immediately respond to a leave request and no later than ten calendar days after receiving the request.

After granting a CFRA leave, the employer must reinstate the employee to the same or comparable position and provide such a guarantee if requested by the employee. The employer may deny reinstatement of an employee if, for example, the position no longer exists. Finally, the employer must continue health care coverage during their CFRA leave up to a maximum of 12 work weeks in a 12-month period.

Violations of CFRA may mean significant damages for the fired employee. For example, the Daily Journal reports the recent outcome of a case where an employee was fired for taking CFRA leave. Daryl Kunga worked as a security guard for American Guard Services. While at work, he was informed that his teenage daughter had been taken to the hospital. Kunga requested leave to care for his daughter. When he attempted to go back to work, the company refused to put him back to work.

Kunga filed a wrongful termination claim against the employer based on violations of the CFRA and associational disability discrimination. 

During trial, it was shown that the employer's HR staff responsible for enforcing compliance of the law did not seem to know what the law was. After trial, the jury eventually returned a verdict in favor of the employee, awarding the employee a total of $3 million in damages, which included $1 million in punitive damages against the employer.

About the Author

Joe Sayas

C. JOE SAYAS, JR., Esq. Recognized as one of California's top employment and labor law attorneys by the Daily Journal, C. Joe Sayas, Jr. has devoted his more than 25-year litigation career to protecting workers' and consumer rights. He has fought for employees discriminated due to disability, ra...

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