Legal Question in Employment Law in California

I am trying to take FMLA leave with my current employer. However, I understand the FMLA federal eligibility requires that you have had worked 12 months and in that 12 months prior to employment must have worked 1250 hours. However, I see that California has amended the FMLA federal law which states under the amended FMLA regulations that an employee who had a break in services in that 12 month period is still eligible for FMLA leave so long as the employee has worked for the company longer than 12 months and the break was no longer than 7 years. In my case I have worked for the company for 4 years and I took my full 12 weeks of FMLA leave 6 months ago. Soon after I found out I was pregnant and wanted to take additional leave; however, was told by my employer that I could not take FMLA due to the fact that I exhausted that leave. They also informed me a week prior to going on maternity leave that they are canceling my health insurance because I no longer qualify for FMLA.

However, based on the amended CA FMLA is there a way that I still can qualify for FMLA and continue my medical benefits. Please advise?


Asked on 6/17/10, 4:12 am

1 Answer from Attorneys
Terry A. Nelson Nelson & Lawless

You have leave rights under two sets of laws that interact:

If your CA employer has at least 5 employees, they can not fire you because you are pregnant, must allow you to continue working as long as you are able, must 'reasonably' accommodate your disability, must allow up to 4 months of unpaid pregnancy leave under FEHA, and return you to the same or an equivalent job upon return to work, with accrued benefits.

If you qualify for both that and FMLA, you get both. If you are out longer than those guarantees, they can fire you. You already took your FMLA, now you should be able to take your FEHA 'pregnancy' leave.

Now, if they violated those rules, contact me for the legal help you'll need. I'll be happy to do so. I've been doing these cases for over 20 years.

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Answered on 6/17/10, 2:53 pm


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