The California Family Rights Act (CFRA) is contained within the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), and is intended to give employees an opportunity to leave work for certain medical reasons without jeopardizing job security. Rogers v. Cty. of L.A. (2011) 198 Cal.App.4th 480, 487. California courts routinely rely on federal cases interpreting the FMLA when reviewing the CFRA. Id.

CFRA makes it an unlawful employment practice for an employer of 50 or more persons to refuse to grant an employee’s request to take up to 12 “workweeks” in any 12-month period for family care and medical leave. Gov. Code, §§ 12945.2(a), (c)(2)(A). Section 12945.2 defines “family care and medical leave” to include leave for the serious health condition of a child of the employee. Gov. Code, § 12945.2(c)(3)(A). In turn, it also defines “child” to include a ‘child’ of a person standing in loco parentis, who is an adult dependent child. Gov. Code, § 12945.2(c)(1)(B).

Violations of the CFRA generally fall into two types of claims:

1. ‘interference’ claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave, and
2. ‘retaliation’ claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave

Rogers v. Cty. of L.A. (2011) 198 Cal.App.4th 480, 487.

Interference

A CFRA interference claim consists of the following elements:

1. the employee's entitlement to CFRA leave rights; and
2. the employer's interference with or denial of those rights.

Moore v. Regents of Univ. of Cal. (2016) 248 Cal.App.4th 216, 251. A failure to notify an employee of his rights under the CFRA can constitute interference. Id. at 253.

The fact that the employer did not specifically deny CFRA leave is not dispositive of the claim for CFRA interference. The law is clear that an employee need not specifically invoke rights under the CFRA. An employee may simply state that the leave is needed for medical treatment. 2 Cal.C.Regs. § 11091(a)(1); see Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 879. The employer is then “obligated to inquire further to determine whether the absence [is] likely to qualify for CFRA protection.” Faust, supra, 150 Cal.App.4th at 884; see also Avila v. Cont'l Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1260 (“Under CFRA and its implementing regulations, the employer bears the burden to determine whether an employee's leave is protected”).

Retaliation

A plaintiff can establish a prima facie case of retaliation in violation of the CFRA by showing the following:

1. the defendant was a covered employer;
2. the plaintiff was eligible for CFRA leave;
3. the plaintiff exercised his or her right to take a qualifying leave; and
4. the plaintiff suffered an adverse employment action because he or she exercised the right to take CFRA leave

Rogers v. Cty. of L.A. (2011) 198 Cal.App.4th 480, 491; Avila v. Cont’l Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1254; Dudley v. Dept. of Trans. (2001) 90 Cal.App.4th 255, 261.

CFRA prohibits an employer “to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of” his or her “exercise of the right to family care and medical leave provided by subdivision (a).” Govt. Code § 12945.2(l)(1); see also Cal.Code Regs., tit. 2, § 7297.7(a).

The CFRA regulations provide:

The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example... medical treatment.”

2 Cal.C.Regs. § 11091(a)(1).

The McDonnel Douglas burden shifting framework applies in retaliation cases under the FEHA. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042. Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the employee to prove intentional retaliation.” Id. (citations omitted)

“The plaintiff must... have the opportunity to attack the employer's proffered reasons as pretexts for discrimination or to offer any other evidence of discriminatory motive.” Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 356.

The California Code of Regulations provides that an employee who takes CFRA leave is entitled to return to “the same position or to a comparable position that is equivalent to the employee’s former position in terms of pay, benefits, shift, schedule, geographic location, and working conditions... Equivalent benefits include benefits resumed in the same manner and at the same levels as provided when leave began.” 2 CCR §11089(b).

The Regulations also provide that “the employee shall retain employee status during the period of the CFRA leave. The leave shall not constitute a break in service for purposes of longevity and/or seniority under any collective bargaining agreement or under any employee benefit plan. Benefits must be resumed upon the employee’s reinstatement in the same manner and at the same levels provided when the leave began, without any new qualification period, physical exam, etc.” 2 CCR §11092(g).

Statute of Limitations

In order to bring an action under CFRA, which is part of FEHA, the aggrieved party must file a written complaint with the Department of Fair Employment and Housing (“DFEH”)within one year of the alleged wrongful employment practice. Gov. Code §12960(d). “The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.” Romano v. Rockwell Int'l, Inc. (1996) 14 Cal.4th 479, 492.