labor lawAdivision of labor law center

The new 2009 FMLA regulations present a particular headache for California employers.

 

That is because most employers in the state are covered by the CFRA, the California Family Rights Act. That law, passed in, was actually the model for the federal FMLA passed in 1993.

 

The dilemma is that the CFRA specifically adopted the 1995 FMLA regulations – the “old” regulations, to many employers. Meanwhile, the new FMLA regulations apply to many of the same employers.

 

There are several conflicts between the two sets of regulations. For example, the 2009 FMLA regulations give employers the right to require that an employee produce a fitness-for-duty certificate every 30 days when there are reasonable concerns about the employee’s physical safety due to a serious health condition, and the employee is using FMLA intermittently.

 

The California regulations do not permit this.

 

When both federal and state law apply, the employee is entitled to coverage under whichever law provides the greater benefit – to the employee. In this case, the California employer will probably have to figure out which set of FMLA regulations – the old or the new – confer more benefits to a particular employee. Those are the regulations that will apply.

 

This means that in some cases, the same employer might have two employees on unpaid leave. One will be subject to the 2009 FMLA regulations, and one will be subject to the 1995 FMLA regulations under the CFRA.

 

When an employee turns in an FMLA certification that is incomplete, the new regulations give the employee 7 days to correct the oversight – and, they require the employer to inform the employee, in writing, of the missing information. The old regulations were much less specific.

 

The new FMLA regulations require the employee on intermittent FMLA to follow the employer’s usual procedures for reporting an absence. The older FMLA regulations, still in effect under CFRA, permit the employee to notify the employer of the absence after the fact.

 

Under the current FMLA regulations, an employee has a serious health condition if he or she is required to visit a doctor at least twice per year for a chronic condition. However, the CFRA still require only the less-specific “periodic visits” to a healthcare provider.

 

California employees are usually on CFRA and FMLA at the same time. However, the Human Resources professional has the unenviable task of determining which set of regulations will provide the greatest benefit to each employee.

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