§ 11087. Definitions.
2 CA ADC § 11087Barclays Official California Code of Regulations
2 CCR § 11087
§ 11087. Definitions.
The following definitions apply only to this article. The definitions in the federal regulations that became effective March 8, 2013 interpreting the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. § 2601 et seq.) shall also apply to this article, to the extent that they are not inconsistent with the following definitions:
(a) “Certification” means a written communication from the health care provider of the child, parent, grandparent, grandchild, sibling, spouse, or domestic partner, or employee with a serious health condition to the employer of the employee requesting a family care leave to care for an aforementioned family member of the employee, or a medical leave for the employee's own serious health condition.
(2) For medical leave for the employee's own serious health condition, this certification need not, but may, at the employee's option, identify the serious health condition involved. Any certification shall contain the information identified in Government Code section 12945.2, as is demonstrated in section 11097 of these regulations. For purposes of the certification “unable to perform the function of the employee's position” means that an employee is unable to perform any one or more of the essential functions of the employee's position. The certification shall contain:
(d) “Covered employer” means any person or individual, including successors in interest of a covered employer, engaged in any business or enterprise in California who directly employs five or more persons within any state of the United States, the District of Columbia or any territory or possession of the United States to perform services for a wage or salary. It also includes the state of California, counties, and any other political or civil subdivision of the state and cities, regardless of the number of employees. There is no requirement that the five employees work at the same location or work full-time. “Employer” as used in these regulations means “covered employer.”
(1) “Directly employs” means that the employer maintains an aggregate of at least five part or full-time employees to perform services for a wage or salary for any part of the day on which the unlawful conduct occurred or on a “regular basis” as that term is defined in subdivision 11008(d)(1)(A). Employees on paid or unpaid leave, including CFRA leave, leave of absence, disciplinary suspension, or other leave, are counted.
(3) Where two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers under CFRA. Joint employers may be separate and distinct entities with separate owners, managers, and facilities. A determination of whether or not a joint employment relationship exists is not determined by the application of any single criterion, but rather the entire relationship is to be viewed in its totality based on the economic realities of the situation. Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as:
(1) A full- or part-time employee in California who has been employed for a total of at least 12 months (52 weeks) with the employer at any time prior to the commencement of a CFRA leave, and who has actually worked (within the meaning of the California Labor Code and Industrial Welfare Commission Wage Orders) for the employer at least 1,250 hours during the 12-month period immediately prior to the date the CFRA leave is to commence.
(B) Employment periods prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the employer for at least 12 months, except for a break in service caused by a military service obligation or written agreement to the contrary. Nothing in this section prevents an employer from considering employment prior to a continuous break in service of more than seven years so long as the employer does so uniformly, with respect to all employees with similar breaks in service.
(C) For an employee who takes a pregnancy disability leave, and who then wants to take CFRA leave for reason of the birth of the employee's child immediately after the employee's pregnancy disability leave, the 12-month period during which the employee must have worked 1,250 hours is that period immediately preceding the employee's first day of pregnancy disability leave, not the first day of the subsequent CFRA leave for reason of the birth of the employee's child.
(2) An employee employed by an air carrier as a flight deck or cabin crew member who has been employed for 12 or more months with the employer, has worked or been paid for 60 percent of the applicable monthly guarantee or the equivalent annualized over the preceding 12-month period, and has worked or been paid for at least 504 hours during the preceding 12-month period. For purposes of this subdivision, “applicable monthly guarantee” means the minimum number of hours for which the employer has agreed to schedule such employees for any given month, unless the employee is on reserve status. For those employees on reserve status, the “applicable monthly guarantee” is the number of hours for which the employer has agreed to pay employees who are on reserve status for any given month pursuant to a collective bargaining agreement, or employer policy if no collective bargaining agreement exists.
(A) Once the employee meets their eligibility criteria and gives notice of the need for a leave, the employer may not deny the leave, cut short the leave, or deny any subsequent leave taken for the same qualifying event during the employee's 12-month leave period, even if the number of employees falls below five employees for purposes of CFRA. In such cases, however, the employee would not be eligible for any subsequent leave requested for a different qualifying event.
(B) If an employee is not eligible for CFRA leave at the start of a leave because the employee has not met the 12-month length of service requirement, the employee may nonetheless meet this requirement while on leave, because leave to which the employee is otherwise entitled counts toward length of service (although not for the 1,250 hour requirement). The employer should designate the portion of the leave in which the employee has met the 12-month requirement as CFRA leave. For example, if an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g. workers' compensation, group health plan benefits, etc.), the week counts as a week of employment.
(h) “Employment in a comparable position” means employment in a position that is virtually identical to the employee's original position in terms of pay, benefits, and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. It must be performed at the same or geographically proximate worksite from where the employee was previously employed. It ordinarily means the same shift or the same or an equivalent work schedule. It has the same meaning as the term “equivalent position” in FMLA and its implementing regulations.
(1) Leave of up to a total of 12 workweeks in a 12-month period for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee, and a guarantee of employment, made at the time the leave is granted, in the same or a comparable position upon termination of the leave; or
(2) Leave of up to a total of 12 workweeks in a 12-month period to care for an employee's child, parent, grandparent, grandchild, sibling, spouse, or domestic partner (sometimes referred to as “family members” in these regulations) who has a serious health condition, and a guarantee of employment, made at the time the leave is granted, in the same or a comparable position upon termination of the leave; or
(3) Leave of up to a total of 12 workweeks in a 12-month period because of a “qualifying exigency,” as that term is defined in Unemployment Code section 3302.2, related to covered active duty or a call to covered active duty of an employee's spouse, domestic partner, child, or parent in the Armed Forces of the United States.
(1) an individual holding either a physician's and surgeon's certificate issued pursuant to Article 4 (commencing with section 2080) of Chapter 5 of Division 2 of the Business and Professions Code or an osteopathic physician's and surgeon's certificate issued pursuant to Article 4.5 (commencing with section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code, or any other individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, including another country, who directly treats or supervises the treatment of the serious health condition, or
(o) “Medical leave” means leave of up to a total of 12 workweeks in a 12-month period because of an employee's own serious health condition that makes the employee unable to work at all or unable to perform any one or more of the essential functions of the position of that employee. The term “essential functions” is defined in Government Code section 12926. “Medical leave” does not include leave taken for an employee's pregnancy disability, as defined in (r) below, except as specified below in section 11093(c)(1).
(p) “Parent” means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child. A biological or legal relationship is not necessary for a person to have stood in loco parentis to the employee as a child.
(u) “Serious health condition” means an illness, injury (including, but not limited to, on-the-job injuries), impairment, or physical or mental condition of the employee or a family member of the employee that involves either inpatient care or continuing treatment, including, but not limited to, treatment for substance abuse.
(1) “Inpatient care” means a stay in a hospital, hospice, or residential health care facility, any subsequent treatment in connection with such inpatient care, or any period of incapacity. A person is considered an “inpatient” when a heath care facility formally admits the person to the facility with the expectation that the person will remain at least overnight and occupy a bed, even if it later develops that such person can be discharged or transferred to another facility and does not actually remain overnight.
Note: Authority cited: Section 12935(a), Government Code. Reference: Section 12945.2, Government Code; J.E. Robinson v. FEHC (1992) 2 Cal.4th 226 [5 Cal.Rptr.2d 782]; Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 and 2611; and 29 C.F.R. § 825.
1. Change without regulatory effect renumbering former subchapter 12 (sections 7297.0-7297.11) to new article 11 (sections 11087-11098) and renumbering former section 7297.0 to new section 11087 and amending section and Note filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of article heading, section and Note filed 3-4-2015; operative 7-1-2015 (Register 2015, No. 10).
3. Editorial correction of first paragraph and subsection (i) (Register 2015, No. 38).
4. Editorial correction of first paragraph (Register 2015, No. 40).
5. Amendment of article heading and subsection (l), new subsection (m), subsection relettering and amendment of Note filed 2-27-2019; operative 4-1-2019 (Register 2019, No. 9).
6. Amendment of section and Note filed 7-6-2020; operative 10-1-2020 (Register 2020, No. 28).
7. Change without regulatory effect amending article heading, section and Note filed 12-30-2020 pursuant to section 100, title 1, California Code of Regulations; effective 1-1-2021 (Register 2021, No. 1). (OAL review extended 60 calendar days pursuant to Executive Order N-40-20.)
8. Editorial correction of History 7 (Register 2021, No. 3).
9. Change without regulatory effect amending subsections (p) and (q) filed 1-11-2022 pursuant to section 100, title 1, California Code of Regulations (Register 2022, No. 2).
This database is current through 3/10/23 Register 2023, No. 10.
Cal. Admin. Code tit. 2, § 11087, 2 CA ADC § 11087
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