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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38879
Experience:  Retired (mostly)
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hello and thank you for taking this question.I have worked

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hello and thank you for taking this question. I have worked at my current place if employment for over 10 years. I need to take a break due to personal and health reasons. I have have chronic intermitant back pain and neck, migrane headaches. I need three months off to really work on my health so I can get back up to speed. 3/4 of my days are pure struggle. I am completely exhausted. My back is recognized by my doctor but last year I was fine when I last saw him, but now things have changed. my neck has been an issue since my car accident, but the settlement did not recognize soft tissue damage, so I could not get funds for additional care and have been diligently caring out self care.Am I able to use FMLA for a break? if yes for how long? and also HOW do I do this? what are the steps? and where do I go for information. Thank you

in addition there are paint and exaust and other fumes that enter the building that do make me have heaches as well. employer has done what they could to fix problem and are very nice about it, but the problem of fumes still prevails. this has been going on for at least the last four years. could I perhaps do an involuntary resignation? I do have a hostile work environment but don't want to pursue that because they let me work when I was ver very sick and I am grateful for that.


If your employer has at least 50 employees within a 75 mile radius of your job site (as the crow flies), and assuming you have worked at least 12 months and 1,250 hours for the employer, then you are entitled to use FMLA (or the analagous California Family Rights Act (CFRA)) benefits for up to 12 weeks of unpaid leave, without fear of being terminated from your employment.

In order to take the leave benefit, all you need to do is provide your employer with a letter requesting the leave, and stating the date when leave will begin.

Your employer is entitled to a certification from your physician that you have a "serious health condition." Many large employers have their own forms on which the certification can be provided. However, the U.S. Department of Labor has a standard form that the employer must accept, if you provide it (click here).

The easiest method of handling the entire issue is to provide the letter and the certification, filled in by your physician at the same time. Make sure you keep a copy, and consider sending the letter and certification by certified mail, return receipt requested -- so you have proof that you sent it and that the employer received it.

Note: You are also entitled to apply for State Disability Insurance (SDI) benefits from the Employment Development Department (EDD) -- so as to supplement your income during leave. To apply, see this link.

Hope this helps.
Customer: replied 4 years ago.

We only have 7 employees. does that change the advice?

and what if my doctor does NOT think its a serious health condition?

what about involuntary resignation as a way as well to get the time off needed???

If you only have seven employees, then you have no FMLA/CFRA benefit rights. Which means if you take time off, your employer can terminate you and that will end your employment. You can resign, based upon your physician's instructions, and if your physician is willing to certify that this is due to your work creating conditions which are detrimental to your health, then you can receive SDI, until you are healthy enough to seek new employment, and then you can apply for unemployment insurance benefits, to the extent that you have sufficient base period earnings to pay for unemployment.

Talk to your physician.

Hope this helps.
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