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September 09, 2011
Leave of Absence: Difference Between FMLA/CFRA and ADA/FEHA

In a BLR webinar entitled " Leaves of Absence: How to Correctly Coordinate -- and Calculate -- ADA/FEHA, FMLA/CFRA, Workers' Compensation and Pregnancy Disability Leaves," Jennifer K. Achtert, Esq., and Christina M. Kotowski, Esq., Of Counsel in the San Francisco office of Fisher & Phillips LLP, described some of the differences between Family and Medical Leave Act (FMLA) leave, California Family Rights Act (CFRA) leave and other forms of leave.

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Let's look at FMLA/CFRA compared to the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA).

  • Not all "disabilities" under ADA/FEHA are "serious health conditions" under FMLA/CFRA.
  • Not all "serious health conditions" under FMLA/CFRA are "disabilities" under ADA/FEHA.

For other examples of differences, FMLA/CFRA leaves:

  • Are available for employees and family members
  • Is limited to 12 weeks (or 26 weeks for service member leaves)
  • Has length of service requirements for eligibility
  • Offers no "undue hardship" defense to the leave request
  • Maybe denied based on the 50 employee/75 mile requirement

In contrast, ADA/FEHA leaves:

  • Are available for employees only
  • Are open-ended as a "reasonable accommodation"
  • Have no length of service requirements for eligibility
  • Have an "undue hardship" defense available to the employer

In the context of accommodation:

  • ADA/FEHA requires reasonable accommodation to perform essential job functions.
  • ADA/FEHA accommodations need not be the employee's preferred accommodation, merely a reasonable accommodation.
  • FMLA does not consider or require accommodations.

Jennifer K. Achtert, Esq. and Christina M. Kotowski, Esq., are both Of Counsel in the San Francisco office of Fisher & Phillips LLP (www.laborlawyers.com). Ms. Achtert's practice involves employment-related litigation, including defending employers against claims of discrimination, retaliation, wrongful termination, and numerous other torts. Ms. Kotowski's practice includes representing employers in discrimination, harassment, retaliation and wrongful termination lawsuits and appeals, and proceedings before administrative agencies.

Need help staying on top of critical HR and Compensation issues? See all the webinars BLR has to offer.


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