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The following is not meant to be legal advice.

On October 20, 2007, Alex Hernaez and Keith Chrestionson of Kauff McClain & McGuire LLP gave a talk in San Francisco, CA on the basics of FMLA and CFRA.  FMLA means Family Medical Leave Act, and CFRA means California Family Rights Act.

When an employee is out on FMLA or CFRA, the employer does not need to pay the employee any salaries.  When determining if a person is eligible for under the leave laws, the employer should first ask if the person is eligible for leave outside of the company’s sick leave policies.  If a person who has ran out of sick leave days calls in sick, the employer may have a claim for retaliation if it terminates the employment of the person. After the employer determines someone may be covered under the leave laws, the employer may ask for medical documentation to see if the person qualifies for unpaid leave.

The calculation for unpaid leave begins when the leave begins, not when the person asks for leave such as when a person has scheduled surgery in advance and notifies an employer that he/she will be taking leave in the future.  Under FMLA, eligibility is based on a person’s actual hours worked.  If it is a salary employee, the employer needs to go back and determine the approximate hours the employee worked in calculating the required 1250 hours.  Paid vacation does not count towards the 1250 hours even though some salary employees may work on vacation.

The employer sets the policy up front on how the 12 month period for FMLA is to be counted.  If the employer does not notify the employee on the policy up front, the court will likely give the employee the most favorable reading.  The 12 month period may be on a calendar or fiscal year.