I have a former seasonal employee who became a regular employee about nine months ago and is asking for a leave of absence to have surgery. The company has 30 employees, and I know the California Family Rights Act (CFRA) applies to us. He has worked more than 1,250 hours in the nine months since he returned, but he hasn’t worked 12 months in a row for us yet. I want to make sure I’m doing everything correctly. Is my employee eligible for the CFRA leave?
Yes, it does appear that this employee is eligible for CFRA leave provided he worked at least three months for the company (at some point in the past) before becoming a regular employee.
Here is the reasoning. As it seems you are aware, there is a two-part test to determine if an employee is eligible for leave under the CFRA: 12 months of employment, and 1,250 hours of work in the 12 months preceding the requested time off from work.
Eligible Employee
The California Code Regulations, at Title 2, Section 11087(g), states that an “eligible employee” is an employee “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.”
The wording “at any time prior” to the leave is key to understanding the employee’s eligibility in this situation. In your question, you stated that the employee had previously been a seasonal employee.
Eligibility Criterion
If during those times that the employee worked in a seasonal capacity, he worked more than a total of three months, then he has met the 12 months of employment requirement to be eligible for CFRA leave. The length of employment criterion for eligibility does not require a consecutive period of employment.
In fact, California law allows an employee to count all periods of employment in the seven years preceding the requested time off in order to establish eligibility for the leave of absence.
In most cases, even with a prior period of employment, an employee must have been working for eight or nine months consecutively to reach the 1,250 hours of work in the 12 months prior to the requested leave, but the 12 months of employment counts all periods of employment with the employer, regardless of when that employment occurred.
David Leporiere, Employment Law Expert, CalChamber
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