Counter-Arguments for Family & Medical Leave Claims
The California Family Rights Act (CFRA) and federal Family and Medical Leave Act (FMLA) provide job-protected leave for family and medical reasons. When employers violate these laws, employees may recover back pay, front pay, lost benefits, emotional distress damages, and attorney's fees. This page helps you respond to common defenses employers use.
CFRA (California): Employers with 5+ employees. Covers care for grandparents, grandchildren, siblings, and domestic partners.
FMLA (Federal): Employers with 50+ employees within 75 miles. Must have worked 12 months and 1,250 hours.
Both provide 12 weeks of job-protected leave per year for qualifying reasons.
CFRA eligibility requirements are more favorable than FMLA. Under CFRA, employees are eligible if they've worked for the employer for 12 months (need not be consecutive) AND the employer has 5 or more employees. There's no minimum hours requirement for CFRA. Even if FMLA doesn't apply, CFRA likely does.
Gov. Code § 12945.2(b) - CFRA applies to employers with 5+ employees.
2 CCR § 11087 - CFRA has no minimum hours requirement.
Gov. Code § 12945.2(b)(2) - 12 months need not be consecutive.
"Your claim that I was ineligible is incorrect. Under California's CFRA (Government Code § 12945.2), eligibility requires only that I worked for you for 12 months - which I had by [date] - and that you employ 5 or more employees. Unlike FMLA, CFRA has no minimum hours requirement. Your company clearly exceeds 5 employees. I was fully eligible for CFRA-protected leave."
The 30-day notice requirement only applies to foreseeable leave. For unforeseeable leave (sudden illness, emergency), employees must provide notice "as soon as practicable" - typically within 1-2 business days. Additionally, employees don't need to use magic words like "CFRA" or "FMLA" - any notice sufficient to put the employer on inquiry is adequate.
Gov. Code § 12945.2(f) - Notice requirements depend on foreseeability.
2 CCR § 11091 - "As soon as practicable" for unforeseeable leave.
Bachelder v. America West Airlines (9th Cir. 2001) - Employee need not invoke CFRA/FMLA by name.
"My need for leave was unforeseeable due to [sudden health condition / family emergency]. Under such circumstances, I was only required to provide notice 'as soon as practicable,' which I did on [date]. Furthermore, I provided sufficient information about the reason for leave - I was not required to specifically invoke 'CFRA' or 'FMLA.' Per Bachelder v. America West Airlines, my notice was legally sufficient to trigger your obligations."
Employers must specifically request certification in writing and give employees at least 15 calendar days to provide it. If the employer didn't properly request certification, or took adverse action before the deadline, the employer cannot now claim lack of certification as a defense. Additionally, certification can be provided during leave - it doesn't need to be submitted before leave begins.
Gov. Code § 12945.2(k) - Employer may require certification.
2 CCR § 11091(b) - Must give 15 days to provide certification.
2 CCR § 11091(a) - Employer must notify employee of certification requirement.
"Your claim lacks merit because [you never formally requested certification in writing / you terminated me on [date], only [X] days after requesting certification - well before the 15-day deadline / I provided certification on [date]]. Under CFRA regulations, employers must give employees 15 calendar days to provide medical certification. Your failure to follow proper procedures does not excuse the violation of my leave rights."
Timing is critical evidence of pretext. If performance issues suddenly emerged shortly before or after a leave request, this suggests the stated reason is pretextual. Courts examine whether the employee had satisfactory reviews before the leave request, whether similarly-situated employees were treated differently, and whether the employer's explanation changed over time.
Gov. Code § 12945.2(l) - Retaliation for exercising CFRA rights is prohibited.
Dudley v. Dep't of Transportation (2001) - Temporal proximity supports inference of retaliation.
McDonnell Douglas burden-shifting - Employer must prove legitimate, non-retaliatory reason.
"The timing of my termination strongly suggests your stated reason is pretextual. I had [satisfactory performance reviews / no disciplinary history] before requesting leave. Within [X days/weeks] of my leave request, I was suddenly terminated for alleged performance issues. Under Dudley v. Dep't of Transportation, this temporal proximity supports an inference of unlawful retaliation. Your after-the-fact justification does not overcome this evidence."
A "serious health condition" includes any illness, injury, or condition that involves: (1) inpatient care, (2) continuing treatment by a healthcare provider, (3) any period of incapacity of more than 3 consecutive days with ongoing treatment, (4) pregnancy or prenatal care, (5) chronic conditions, or (6) permanent or long-term conditions. The definition is broader than employers often assume.
Gov. Code § 12945.2(c)(9) - Definition of serious health condition.
2 CCR § 11087(p) - Detailed regulatory definition.
29 CFR § 825.113 - FMLA regulatory definition.
"My condition qualifies as a 'serious health condition' under CFRA because [it required inpatient care / it involved continuing treatment by a healthcare provider / it caused incapacity of more than 3 consecutive days with ongoing treatment / it is a chronic condition requiring periodic treatment]. The medical certification from my doctor confirms this. Your unilateral determination that my condition doesn't qualify is not supported by the law or the medical evidence."
While FMLA has limited family member coverage, California's CFRA is much broader. As of 2021, CFRA covers care for: spouse, domestic partner, child (including adult child), parent, grandparent, grandchild, and sibling. The employer may be applying federal FMLA standards when California's more expansive CFRA applies.
Gov. Code § 12945.2(a) - CFRA's expanded family definitions (2021 amendments).
Gov. Code § 12945.2(c)(3) - "Child" includes biological, adopted, foster, stepchild, or child of domestic partner.
SB 1383 (2020) - Expanded CFRA coverage effective January 1, 2021.
"Your reliance on FMLA's limited family coverage ignores California law. Since January 1, 2021, CFRA explicitly covers leave to care for [grandparents / grandchildren / siblings / domestic partners]. Government Code section 12945.2(a) clearly includes [relationship] in the definition of covered family members. My request for leave to care for my [relationship] was fully protected under California law."
Even during legitimate layoffs, employers cannot select employees for termination based on their leave status or use leave as a factor. The timing of the "reorganization," whether you were the only one affected, and whether others on leave were disproportionately impacted are all relevant factors. The employer bears the burden of proving the decision would have been made regardless of the leave.
Gov. Code § 12945.2(l) - Leave cannot be a factor in employment decisions.
2 CCR § 11089(d) - Employee would have been laid off regardless of leave.
Xin Liu v. Amway Corp. (2003) - Employer must prove same decision would occur without leave.
"The claimed 'reorganization' appears pretextual. [I was the only person affected / the reorganization was announced shortly after my leave request / my position was subsequently filled / other employees on leave were disproportionately impacted]. Under CFRA, you must prove I would have been laid off regardless of my leave status. The circumstances suggest my leave was a motivating factor in the decision."
Company policies cannot impose requirements stricter than CFRA/FMLA regulations. Under the law, employees need only provide sufficient information to put the employer on notice that leave may be needed for a qualifying reason. Internal procedures cannot be used to deny or delay protected leave rights.
2 CCR § 11091 - Notice requirements under CFRA.
Gov. Code § 12945.2 - Employer policies cannot diminish CFRA rights.
29 CFR § 825.302 - FMLA notice requirements supersede employer policies.
"Company leave policies cannot impose requirements stricter than CFRA regulations. I provided notice that I needed leave for a qualifying reason - this is all the law requires. Your internal procedures cannot be used to deny or delay my protected leave rights. The employer's obligation is to inquire further if more information is needed, not to deny leave based on procedural technicalities."
Verify the calculation of leave used. CFRA provides 12 weeks per 12-month period, and the method for calculating this period must be consistent. Also, pregnancy disability leave (PDL) is separate from CFRA - up to 4 months of PDL, plus 12 weeks of CFRA baby bonding leave. Additionally, some leave types may be available separately under different laws.
Gov. Code § 12945.2(a) - 12 weeks per 12-month period.
Gov. Code § 12945 - PDL is separate from CFRA.
2 CCR § 11090 - Calculation methods for 12-month period.
"Your calculation of my leave entitlement is incorrect. [My previous pregnancy-related leave was PDL, which is separate from CFRA / Your calculation of the 12-month period is inconsistent with prior practice / I had not yet used 12 weeks of CFRA leave]. Under California law, I was entitled to the leave I requested. Please provide documentation of how you calculated my remaining leave entitlement."
CFRA provides a right to reinstatement to the same or comparable position upon return from leave. If you were able to return to work (perhaps with reasonable accommodation under the ADA/FEHA), the employer cannot refuse reinstatement. Additionally, the employer may have separate obligations under disability discrimination laws to engage in the interactive process.
Gov. Code § 12945.2(a) - Right to reinstatement.
Gov. Code § 12940(m) - Duty to accommodate under FEHA.
2 CCR § 11089 - Reinstatement requirements.
"I was cleared to return to work by my healthcare provider on [date]. CFRA guarantees reinstatement to the same or comparable position. If you believed I needed accommodation, you were obligated to engage in the interactive process under FEHA - not simply refuse reinstatement. Your failure to reinstate me upon my return from leave violates Government Code section 12945.2(a)."
Intermittent leave is specifically protected under CFRA/FMLA when medically necessary. Employers may require medical certification supporting the need for intermittent leave, but they cannot deny it simply because it's inconvenient. The employer's remedy is to transfer the employee to an equivalent position that better accommodates intermittent absences - not to deny leave or retaliate.
Gov. Code § 12945.2(a) - Intermittent leave is protected.
2 CCR § 11090 - Intermittent leave requirements.
29 CFR § 825.203 - Employer's limited remedies for intermittent leave.
"CFRA explicitly protects intermittent leave when medically necessary. My healthcare provider certified my need for intermittent leave. While I understand this may have caused scheduling challenges, the law does not permit employers to deny medically necessary intermittent leave because it's inconvenient. Your only remedy was to offer a transfer to an equivalent position - not to deny leave or take adverse action against me."
Employees need not use the words "CFRA" or "FMLA" - they just need to provide enough information to put the employer on notice. Telling a supervisor you need time off for surgery, a sick family member, or a new baby is sufficient. The employer then has an affirmative duty to inquire further and provide required notices about CFRA/FMLA rights.
2 CCR § 11091 - Notice content requirements.
2 CCR § 11095 - Employer's duty to provide rights notice.
Bachelder v. America West Airlines (9th Cir. 2001) - No magic words required.
"I informed [supervisor/HR] on [date] that I needed time off for [reason]. Under Bachelder v. America West Airlines, I was not required to specifically say 'CFRA' or 'FMLA' - I only needed to provide sufficient information about the reason for leave. Once notified, you had an affirmative duty to inquire further and provide required notices about my CFRA rights. Your claim of no record does not excuse your failure to fulfill these obligations."
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