Employers with fewer than 50 employees generally are not covered by the Federal Family and Medical Leave Act (FMLA) nor the California Family Rights Act (CFRA).
This means they are not legally obligated to provide the 12 weeks of leave to which employees of larger employers are entitled for baby bonding, or for the employee’s own serious illness or to care for a seriously ill family member.
Some employers in this category “volunteer” to cover their employees in various ways, as if they were covered by the law. But there’s a trap waiting for them (“be a good guy, get punished for it!”): Even an employer that is not covered by FMLA or CFRA may end up having to comply with those laws based on its employee handbook and other communications with employees. Here’s why…
Under a legal doctrine called “equitable estoppel,” if an employee reasonably relies on information provided by an employer that he/she is entitled to take leave under FMLA and/or CFRA, the laws may be enforced even against an employer that is not covered by them or
where the employee was not actually eligible for FMLA or CFRA leave. If employees reasonably rely on their employer’s representation that FMLA/CFRA protections will be provided, several courts have held that an employer may be held to that representation even where it otherwise could have argued it was not legally required to grant the leave.
This may happen where a small employer (fewer than 50 employees) creates an employee handbook that includes an FMLA/CFRA policy. Alternatively, a large employer (more than 50 employees) that is covered by the FMLA and CFRA might indicate in an employee handbook that
even employees who work at small branch locations (who would not otherwise be eligible) may take family leave.
Another circumstance where equitable estoppel may force FMLA/CFRA liability is where an employee who is not eligible requests family leave and is told erroneously the leave is granted.
Although an employer may want to be “fair” to all employees by providing family leave even to those who are not eligible, promising all the legal protections of the FMLA and CFRA may not be wise. For example, an employer that promises FMLA/CFRA protections to employees even at a small branch location may find itself scrambling to keep the doors open if a large number of those employees all take family leave at the same time with no one to cover their jobs.
Instead, the employer may want to consider offering some alternative version of family leave to ineligible employees, perhaps creating a company policy for a shorter leave with less stringent job return rights than those provided under the laws.
The employer in essence can create its own family leave policy, defining benefits rights and rules for paid time off use during the leave.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
