§ 11087. Definitions.

The following definitions apply only to this article. The definitions in the federal regulations issued January 6, 1995 (29 C.F.R. Part 825), 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, spouse, or employee with a serious health condition to the employer of the employee requesting a family care leave to care for the employee's child, parent or spouse or a medical leave for the employee's own serious health condition.

(1) For family care leave for the employee's child, parent, or spouse, this certification need not identify the serious health condition involved, but shall contain:

(A) the date, if known, on which the serious health condition commenced,

(B) the probable duration of the condition,

(C) an estimate of the amount of time which the health care provider believes the employee needs to care for the child, parent or spouse, and

(D) a statement that the serious health condition warrants the participation of the employee to provide care during a period of treatment or supervision of the child, parent or spouse.

1. “Warrants the participation of the employee” includes, but is not limited to, providing psychological comfort, and arranging third party care for the child, parent or spouse, as well as directly providing, or participating in, the medical care.

(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. It shall contain:

(A) The date, if known, on which the serious health condition commenced,

(B) The probable duration of the condition, and

(C) A statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform any one or more of the essential functions of his or her position.

(b) “CFRA” means the Moore-Brown-Roberti California Family Rights Act of 1993. (California Family Rights Act, Gov. Code §§12945.1 and 12945.2.) “CFRA leave” means family care or medical leave taken pursuant to CFRA.

(c) “Child” means a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, or a child of an employee who stands in loco parentis to that child, who is either under 18 years of age or an adult dependent child. An adult dependent child is an individual who is 18 years of age or older and who is incapable of self-care because of a mental or physical disability within the meaning of Government Code section 12926(j) and (l).

(1) “In loco parentis” means in the place of a parent; instead of a parent; charged with a parent's rights, duties, and responsibilities. It does not require a biological or legal relationship.

(d) “Covered employer” means any person or individual engaged in any business or enterprise in California who directly employs 50 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 50 employees work at the same location or work full time.

(1) “Directly employs” means that the employer maintains an aggregate of at least 50 part or full time employees on its payroll(s) for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The workweeks do not have to be consecutive. The phrase “current or preceding calendar year” refers to the calendar year in which the employee requests the leave or the calendar year preceding this request.

(2) “Perform services for a wage or salary” excludes independent contractors as defined in Labor Code section 3353 but includes persons who are compensated in whole or in part by commission.

(e) “Eligible employee” means a full or part time employee working in California with more than 12 months (52 weeks) of service with the employer at any time, and who has actually worked (within the meaning of the Fair Labor Standards Act, 29 C.F.R. Part 785) for the employer at least 1,250 hours during the 12-month period immediately prior to the date the CFRA leave or FMLA leave is to commence.

(1) Once the employee meets these two eligibility criteria and takes a leave for a qualifying event, the employee does not have to requalify, in terms of the numbers of hours worked, in order to take additional leave for the same qualifying event during the employee's 12-month leave period.

(2) For an employee who takes a pregnancy disability leave that is also a FMLA leave, and who then wants to take CFRA leave for reason of the birth of her child immediately after her pregnancy disability leave, the 12-month period during which she must have worked 1,250 hours is that period immediately preceding her first day of FMLA leave based on her pregnancy, not the first day of the subsequent CFRA leave for reason of the birth of her child.

(3) In order to be eligible, the employee must also work for an employer who maintains on the payroll, as of the date the employee gives notice of the need for leave, at least 50 part or full time employees within 75 miles, measured in surface miles, using surface transportation, of the worksite where the employee requesting the leave is employed.

(A) Once the employee meets this eligibility criterion and takes a leave for a qualifying event, the employer may not 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 within the relevant 75-mile radius falls below 50. In such cases, however, the employee would not be eligible for any subsequent leave requested for a different qualifying event.

(f) “Employment in the same position” means employment in, or reinstatement to, the original position the employee held prior to taking a CFRA leave.

(g) “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.

(h) “Family care leave” means either:

(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, 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 a child, parent or spouse of the employee 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.

(i) “FMLA” means the federal Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., and its implementing regulations, 29 C.F.R. Part 825, issued January 6, 1995. “FMLA leave” means family care or medical leave taken pursuant to FMLA.

(j) “Health care provider” means either:

(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

(2) any other person who meets the definition of others “capable of providing health care services,” as set forth in FMLA and its implementing regulations.

(k) “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(f). “Medical leave” does not include leave taken for an employee's pregnancy disability, as defined in (m) below, except as specified below in section 11093(c)(1).

(l) “Parent” means a biological, foster, or adoptive parent, 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. Parent does not include a parent-in-law.

(m) “Pregnancy disability leave” means a leave taken for disability on account of pregnancy, childbirth, or related medical conditions, pursuant to Government Code section 12945 and defined in section 11035(r) of the regulations.

(n) “Reinstatement” means “restoration” within the meaning of FMLA and its implementing regulations.

(o) “Serious health condition” means an illness, injury (including on-the-job injuries), impairment, or physical or mental condition of the employee or a child, parent or spouse of the employee which involves either:

(1) inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential health care facility, or

(2) continuing treatment or continuing supervision by a health care provider, as detailed in FMLA and its implementing regulations.

(p) “Spouse” means a partner in marriage as defined in Family Code section 300.

(q) “Twelve workweeks” means the equivalent of 12 of the employee's normally scheduled workweeks. (See also section 11090(d).)

HISTORY

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).

Note

Note: Authority cited: Section 12935(a), Government Code. Reference: Section 12945.2, Government Code; and 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 et seq.; 29 C.F.R. § 825, issued January 6, 1995; Fair Labor Standards Act, 29 U.S.C. section 201 et seq.; and 29 C.F.R. § 785.