Q&A

How does California Family Rights Act (CFRA) leave differ from Family and Medical Leave Act (FMLA) leave?

October 14, 2022

Editor's Note: This content has been updated to reflect changes to the CFRA effective Jan. 1, 2023.

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

The major differences between the two laws are reflected in the chart below:

	FMLA	CFRA
Employer coverage	50 or more employees	5 or more employees
Employee eligibility - location	Employee must work at a location that has 50 employees within a 75-mile radius	No requirement
Covered family member	Employee's spouse (including those in same-sex marriages), child (minor or dependent adult) or parent	Employee's spouse (including those in same-sex marriages), registered domestic partner, child (of any age), child of domestic partner, parent, parent-in-law, sibling, grandparent, grandchild or designated person.
Reasons for leave	Birth of a child for purposes of bonding Placement of a child for adoption or foster care To care for the employee's covered family member (above) with a serious health condition The serious health condition of the employee (including pregnancy) A qualifying military exigency related to the covered active duty or call to covered active duty of an employee's spouse, child (of any age) or parent who is a member of the United States Armed Forces To care for a family member who is a current servicemember or veteran with a serious illness or injury (26 weeks)	Birth of a child for purposes of bonding (including the child of a domestic partner) Placement of a child in for adoption or foster care To care for the employee's covered family member (above) with a serious health condition The serious health condition of the employee (excluding pregnancy) A qualifying military exigency related to the covered active duty or call to covered active duty of an employee's spouse, domestic partner, child (of any age), or parent in the United States Armed Forces, as specified in Section 3302.2 of the Unemployment Insurance Code
Medical diagnosis	Employers are permitted to ask for a diagnosis of an employee's serious health condition when necessary to support the need for leave.	Employer cannot ask for a diagnosis, but the employee may choose to disclose the diagnosis. California employers should use the Certification of Health Care Provider form rather than the FMLA medical certification forms to avoid the unauthorized disclosure of a medical diagnosis.
Certification/recertification	Employers may require (and must pay for) second and third medical certifications for employees or family members if the employer has a "reason to doubt" the validity of a certification. Recertifications may be required every six months, even if original certification has not expired.	Employers may require (and must pay for) second and third medical certifications for an employee's medical condition only (not for family members), if they have a "good faith, objective reason" to doubt the validity of the medical certification before requiring a second or third certification. Recertifications may only be requested when the original certification expires. Permanent conditions would not be recertified.
Combined leave for spouses at same employer	Eligible spouses who work for the same employer are limited to a combined total of 12 workweeks of leave in a 12-month period for the following FMLA-qualifying reasons: • the birth of a son or daughter and bonding with the newborn child, • the placement of a son or daughter with the employee for adoption or foster care and bonding with the newly-placed child, and • the care of a parent with a serious health condition.	Combining leave is not permitted for any reason.
Intermittent leave for baby bonding	Requires the employer's agreement for an employee to take bonding leave intermittently	Although employees do not need the employer's agreement to take intermittent bonding leave, an employee may be required to use such leave in two-week minimum increments, with an exception for shorter increments on at least two occasions.
Key employee reinstatement	Certain key employees may be denied reinstatement after leave.	No exception for key employees.
Use of paid leave	The employer may require, or the employee may elect to use paid leave – vacation, sick, PTO – unless the employee is receiving disability payments, which would then require agreement between the employer and employee to supplement with paid leave.	The employer may require, or the employee may elect to use paid leave – vacation, PTO - if the employee is not receiving Paid Family Leave (PFL) or disability payments. The use of paid sick leave may only be required/elected for the employee's serious health condition, or where the employer and employee agree to its use. The employer and employee may agree to supplement PFL or disability payments with other paid leave. (San Francisco employers with 20 or more employees are required to supplement PFL to 100% of pay for eligible employees).

In circumstances where a leave qualifies for both FMLA and CFRA leave, the leaves will run concurrently for a total of 12 weeks.

It is possible that an employee could qualify for 12 weeks of CFRA leave to care for a domestic partner or grandparent (who are not considered eligible family members under the FMLA) and then qualify for 12 weeks of FMLA to care for a child, spouse, or parent, for a total of 24 weeks.