California Employment Law

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Can an employee request FMLA to take off for holidays. Part…

Customer Question
Can an employee request...

Can an employee request FMLA to take off for holidays

Lawyer's Assistant: Have you documented this or discussed it with HR?

Yes

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Part time

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I already gave hime time off for family bonding and he took his family on vacation to Greece. Now he wants c3 major holidays off I need to know if I'm required to grant it

Submitted: 8 months ago.Category: California Employment Law
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Answered in 4 minutes by:
11/19/2017
California Employment Lawyer: Dwayne B., Attorney replied 8 months ago
Dwayne B.
Dwayne B., Attorney
Category: California Employment Law
Satisfied Customers: 34,389
Experience: Began practicing law in 1992
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Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

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California Employment Lawyer: Dwayne B., Attorney replied 8 months ago

Please allow me several minutes to read your facts and type my response both initially and when you add a follow up question or add facts. Please don't ask "are you there", "where is my answer", etc., since when you post it can erase what I am working on. If we are having a conversation unless I tell you I am going offline, I will be here but I may be doing research.

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California Employment Lawyer: Dwayne B., Attorney replied 8 months ago

Is he asking for them for any reason other than it is the holidays?

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Customer reply replied 8 months ago
Only tells me he is allowed by law to take the time off as long it's before his daughters first birthday
California Employment Lawyer: Dwayne B., Attorney replied 8 months ago

No, that's not quite right. The Department of Labor has a fact sheet which I will give you a link to but the DOL states as to the first year of a child's life:

"An employee's entitlement to FMLA leave for birth and bonding expires 12 months after the date of
birth. Both mothers and fathers have the same right to take FMLA leave for the birth of a child.
Birth and bonding leave must be taken as a continuous block of leave unless the employer agrees to
allow intermittent leave."

However, California has its own version of the FMLA known as the California Family Rights Act (CFRA) and its requirements are a little different. There is no requirement that employer agrees to intermittent leave. Basic minimum leave duration is two weeks for CFRA-only baby bonding leave. But employer must grant a request for leave of less than two weeks’ duration on any two occasions (or in other words, twice).

So if the employee has made a request "pursuant to the FMLA" then he probably hasn't met the requirement.

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California Employment Lawyer: Dwayne B., Attorney replied 8 months ago

Let me see if I can find something similar to the DOL fact sheet which specifically applies to the CA law for you to use as a reference.

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California Employment Lawyer: Dwayne B., Attorney replied 8 months ago

It's not as broad as he is saying.

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California Employment Lawyer: Dwayne B., Attorney replied 8 months ago

Just to make sure you're covered by the law, you do have

1) 50 part- or full-time employees on payroll within 75 miles of the worksite where the employee requesting the leave is employed and

2) the employee has worked 1,250 hours in the 12-month period immediately before the date the CFRA leave is to begin and

3) The employer has worked at least 12 months in total for the employer?

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California Employment Lawyer: Dwayne B., Attorney replied 8 months ago

One way to phrase the intermittent leave requirement following a birth is "Basic minimum leave duration is two weeks for CFRA-only baby bonding leave, but employers must grant a request for leave of less than two weeks' duration on any two occasions."

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Customer reply replied 8 months ago
He only works 3 days a week. I don't think that he meets that one requirement but the others yes
California Employment Lawyer: Dwayne B., Attorney replied 8 months ago

He must meet all the requirements to be eligible for any leave under FMLA or CFRA. If you are talking about #2 that averages about 25 hours a week. If in doubt, take the last year's pay stubs prior to him asking for any time off to a local lawyer and let them do the calculations for you and send you a "letter opinion".

The DOL fact sheet is at https://www.dol.gov/whd/regs/compliance/whdfs28f.pdf

There is another one put out by someone else at https://www.whittier.edu/sites/default/files/media/offices/human_resources/employee_information/PDF_HR_EmployeeInfoForms_FamilyandMedicalLeaveActPolicy.pdf

The second one explains the CFRA and the differences between the two.

The main issue is that he can't just take time off a day at a time, etc. He is limited, if he is claiming bonding time, to two times off of less than two weeks but the remainder of the time must be in time amounts of two weeks or greater.

If he isn't giving you a specific reason for wanting off or citing a specific law have the same lawyer write him a letter explaining his request is deficient. The lawyer will know how to phrase it to protect you.

My guess is the employee is reading the internet but doesn't understand what it is saying.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a 5 Star Positive Rating so I receive credit for my work. Also please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Of course, please feel free to ask any follow-up questions in this thread. I want to be sure all of your questions are answered.

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