An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

did not qualify as CFRA leave. Since the employee did not need to care for his parents, his leave was not protected by the Act. Similarly, in Pang v. Beverly Hosp., Inc ., 1193 the court ruled that under the CFRA, an employee was not entitled to CFRA leave to help her ill mother move from a larger home to a smaller home. Although the mother had chronic conditions, she was not experiencing any episode of incapacity and the employee was not there to directly, or even indirectly, provide or participate in medical care for her mother. Consequently, she was not caring for her mother as that term is defined by the CFRA. E. H OW I S A N E MPLOYEE ’ S R IGHT T O L EAVE A FFECTED B Y H IS O R H ER S POUSE ’ S O R R EGISTERED D OMESTIC P ARTNER ’ S S TATUS O R U SE O F T HE L EAVE ? 1. FMLA The FMLA imposes the 12 weeks maximum combined leave on “spouses” who work for the same school and who take leave for the birth, placement for adoption, or foster care of the employees’ child, or to care for a parent with a serious health condition. 1194 This means that if a school has two employees who are not married, but have a child together, each employee is entitled to 12 weeks of FMLA leave for the birth, placement for adoption, or foster care of the employee’s child. However, spouses are entitled to a total of 26 weeks of leave if leave is taken to care for a “covered service member,” or a combination of leave to care for a “covered service member” and other qualifying leave under the FMLA. 1195 2. CFRA The CFRA differs from the FMLA in two ways. First, the CFRA covers parents of a child, not just spouses. This is because the FEHA’s prohibition against marital status discrimination would not allow it to impose such a restriction solely on married parents. 1196 Second, the CFRA covers registered domestic partners. The FMLA covers legally married same sex spouses, but not registered domestic partners. 1197 3. O VERLAP O F T HE T WO A CTS The general rule is that if there is a conflict between the two Acts, the provision most favorable to the employee applies. 1198 Thus, if leave qualifies under both Acts, the CFRA restriction for unmarried parents would not apply because it is not provided by the FMLA. Similarly, the FMLA provision providing the 12-week restriction for a seriously ill parent would not apply because it does not apply under the CFRA. If both spouses took six weeks of family leave to care for their seriously ill parents, they would both still have six additional weeks of leave in the 12-month period to use for any qualifying purpose.

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