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Medical Leave


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Medical Leave

California Family Leave Lawyer and California Medical Leave Lawyer

California law provides that certain employers must provide Family Medical Leave to employees who have worked with the company for over a year for the birth or adoption of a child or when the employee, their spouse, or close family relative, suffers from a serious health condition. It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of an individual's exercise of the right to family care and medical leave.

The Dolan Law Firm has helped dozens of employees obtain their rights to medical leave and has a record of success obtaining damages for its clients whose rights have been violated. Contact us for a free case evaluation. We work on a contingency fee and only get paid if we receive a recovery for you.

California Government Code Section 12945.2 establishes the rights and obligations of employers and employees relating to medical leave.

WHICH EMPLOYERS HAVE TO PROVIDE FAMILY MEDICAL LEAVE

  • Employers who have more than 50 employees working within a seventy five mile radius.

WHICH EMPLOYEES ARE ENTITLED TO FAMILY MEDICAL LEAVE

To be entitled to medical leave an employee must meet the following criteria:

  • Have worked for the previous 12 months; and
  • have worked a minimum of 1,250 hours in that last year.

WHAT IS MEDICAL LEAVE GRANTED FOR?

  • The birth or adoption of a child (both men and women have this right); or
  • the serious health condition of the employee, their spouse, parent, or child.

WHAT IS A SERIOUS HEALTH CONDITION UNDER THE LAW?

"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either of the following:

  • Inpatient care in a hospital, hospice, or residential health care facility.
  • Continuing treatment or continuing supervision by a health care provider
  • A simple cold or flu, absent special circumstances, does not constitute a serious medical condition.

WHAT IS THE EMPLOYER'S OBLIGATION?

  • To provide up to a total of 12 weeks of unpaid leave;
  • to continue an employee's health benefits during the leave;
  • to maintain the seniority of the employee and count the leave time just as if the employee continued to be at work for purposes of a seniority system; and
  • to return the employee to the same or similar position (with similar responsibilities, pay, and opportunities for advancement) that they held prior to their leave.

WHAT INFORMATION MUST THE EMPLOYEE PROVIDE

  • Reasonable advance notice if the leave is foreseeable;
  • documentation from the employee's physician as to the medical condition and expected duration of the leave. This should be provided before the leave, if possible (emergencies happen);
  • an estimate of the time off and return date; and
  • if the need for treatment or leave is foreseeable the employee should try and schedule treatment to avoid disruption to the employers business.

WHAT CAN THE EMPLOYER DEMAND AS PROOF OF MEDICAL LEAVE?

An employer may require that an employee's request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by a certification issued by the health care provider of the individual requiring care. That certification shall be sufficient if it includes all of the following:

  • The date on which the serious health condition commenced.
  • The probable duration of the condition.
  • An estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care.
  • A statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.

WHAT IF THE EMPLOYER DOES NOT BELIEVE THE EMPLOYEE?

In any case in which the employer has reason to doubt the validity of the certification provided pursuant to this section, the employer may require, at the employer's expense, that the employee obtain the opinion of a second health care provider, designated or approved by the employer. That health care provider can not be regularly employed by the employer.

In any case in which the second opinion differs from the opinion in the original certification, the employer may require, at the employer's expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by the employer and the employee, concerning the information in the employee's medical certification.

The opinion of the third health care provider concerning the certified information be considered to be final and shall be binding on the employer and the employee.

ARE YOU ENTITLED TO YOUR JOB BACK AT THE END OF THE MEDICAL LEAVE?

You are entitled to the same or similar position (with same pay, responsibility, opportunity for promotion, and benefits).

DO YOU HAVE TO TAKE ALL THE LEAVE AT ONE TIME?

No. Leave may be taken all at one time or at different times as needed for appointments, treatments, or because of episodic difficulties. Total leave within the period may not exceed twelve weeks.

HOW DO YOU DO TO MAKE A REQUEST?

Make your request in writing as soon as you know you will need leave (in advance if possible) or as soon as possible following an emergency leave. Check your employee handbook for any forms or processes that re required. Consult with your healthcare provider to obtain certification of your need for leave and the expected duration of the leave and provide that to your employer with as much advance notice as possible.

WHAT DO YOU DO IF YOUR RIGHTS HAVE BEEN DENIED?

If you have been denied your right to leave, been retaliated against, or harassed because you took leave, or denied your job back after taking leave, you have legal rights. Contact the Dolan Law Firm for more information of your legal rights.

Many companies have reporting requirements which require that you follow a certain channel of communication in reporting unlawful treatment, denial of your rights and/or retaliation. You should follow these procedures and document your actions in writing. Keep copies of all communications with your employer. Failure to follow these procedures may lead to a denial of your legal right to recover certain damages like punitive damages.

You have a limited period of time to act to protect your rights. Failure to act promptly may eliminate your rights to take legal action. For more information on these statutes of limitations, click here.

If you believe that you are being discriminated against or harassed because of your serious health condition and/or disability, or for having taken time to care for your spouse, child or parent, contact The Dolan Law Firm for a free case evaluation.

An individual who has suffered unlawful conduct, inc California, in violation of their rights under the Fair Employment and Housing Act (such as discrimination and or harassment based on membership in a protected classification) must file a complaint with the Department of Fair Employment and Housing (DFEH), generally within one year of the conduct (there are limited exceptions in some cases) or they may lose their right to pursue legal action for this conduct. Information on, and forms provided by, the DFEH and its complaint process can be found at http://www.dfeh.ca.gov/complaint.asp.