CFRA vs FMLA: A Guide for California Employers

There is a specific and very common way for a California small business to walk into a lawsuit, and it goes like this. An employee asks for leave to care for a sick parent. The owner, who has read a little, knows that the federal Family and Medical Leave Act (FMLA) applies at 50 employees, counts their eleven people, concludes correctly that FMLA does not apply, and says no. They were right about FMLA and completely wrong about the law, because in California a different statute reached them at five employees, and they had never heard of it.

That statute is CFRA, the California Family Rights Act, and since January 2021 it has covered California employers with five or more employees. It is not a smaller version of FMLA. It is a separate law with a lower threshold, a broader definition of family, and different rules about pregnancy, and if you employ people in California it almost certainly applies to you whether or not FMLA does.

This guide is the employer-side comparison: which law reaches your business, what each one covers, how they interact when both apply, and the stacking scenario that can produce 24 weeks of protected leave from two 12-week entitlements. Keeping the designation paperwork and signed acknowledgments on file is part of what I built FirstHR for.

A heavier caveat than usual on this one: California leave law is complex, changes frequently, and the penalties are real. This is general information, not legal advice, and anything involving denying or terminating during leave belongs with a California employment attorney.

The Short Answer

If you have five or more employees in California, CFRA applies to you, even if FMLA does not. That is the sentence that matters, and it is the one most small business owners have never heard.

Most of what follows comes from that threshold difference. It is why a California business can be fully outside FMLA and fully inside a nearly identical leave obligation, and why the intuition that under 50 means exempt is dangerously wrong in one particular state. Headcount is what switches obligations on and off across the board, not just for leave.

Which One Applies to You?

Find your headcount, counting everyone you employ in the United States rather than only the people based in California. One of these three bands is you. The middle one is where most small businesses sit, and where most of the confusion starts.

The middle band is the one worth sitting with. Between 5 and 49 employees, you are covered by CFRA and not by FMLA. Only one law is running, so there is no concurrency to think about.

Every CFRA obligation is still yours, though: the 12 weeks, the job protection, the health benefit continuation, the notices, the designation, and a CFRA description in any handbook that covers your other leaves.

Side by Side

This table compares the two laws on every dimension that changes what you owe. The FMLA column follows the Department of Labor coverage and eligibility tests, and the CFRA column follows Government Code section 12945.2 and the Civil Rights Council regulations that implement it.

Read down the CFRA column and you can see the shape of the difference. CFRA is broader on family, narrower on pregnancy, and dramatically lower on the threshold. Everything else, the 12 weeks, the eligibility test, the unpaid job protection, is essentially the same law.

The Family Definition Gap

FMLA covers a spouse, a child, and a parent. That is the whole list. CFRA covers all of those plus a considerably longer set, and the gap between the two lists is where most of the administrative complexity comes from.

CFRA adds grandparents, grandchildren, siblings, registered domestic partners, and parents-in-law. It also covers adult children of any age without requiring that they be incapable of self-care, which FMLA does require.

The designated person is a category FMLA has nothing like: any individual related by blood or whose association with the employee is the equivalent of a family relationship. An employer may generally limit an employee to one designated person per 12-month period.

At an employer covered by both laws, every family-care leave request needs a check against both lists, because the answer determines which bank it draws down. Leave to care for a mother qualifies under both, so it runs concurrently. Leave to care for a grandmother qualifies under CFRA only, and it does not touch FMLA at all.

Pregnancy Is Handled Differently

The two laws take opposite approaches to pregnancy, and the California version is more generous in a way that is easy to under-administer. That makes this the difference most likely to produce a wrong answer.

FMLA treats pregnancy-related disability as a serious health condition, so it counts against the 12-week FMLA bank. CFRA generally excludes pregnancy disability from its definition of a serious health condition. California instead provides Pregnancy Disability Leave (PDL), a separate entitlement of up to four months, available at employers with five or more employees with no tenure requirement at all.

The consequence is stacking, and it is by design. Under the CFRA regulations, the right to CFRA leave is separate and distinct from the right to pregnancy disability leave, so the two do not run concurrently. An employee can take PDL for the disability period and then a separate period of CFRA leave to bond with the new child.

The combined ceiling is four months of pregnancy disability leave plus 12 workweeks of CFRA bonding leave. At an employer covered by both laws, PDL generally runs concurrently with FMLA, so the FMLA bank is consumed during the disability period while the CFRA bank is not. Confirm this against your own facts with counsel.

Do They Run Concurrently?

Yes, when the reason qualifies under both. No, when it qualifies under only one. That single distinction is the entire concurrency rule, and getting it right is what separates a 12-week exposure from a 24-week one.

Look at rows four through six. Every one of them consumes CFRA and leaves FMLA completely intact. That is not an oversight in the law; it is the direct consequence of California choosing to protect a broader definition of family than the federal government does. The employee is using a right that only exists under state law, so only the state bank moves.

The 24-Week Stacking Trap

Here is the scenario that catches employers with 50 or more employees, worked all the way through. It is entirely lawful, and it surprises people every time.

The instinct is to call this a loophole and look for a way to prevent it. There is not one, and the framing is wrong anyway. The employee has two separate legal entitlements from two separate legislatures, and they used one of them for something the other does not cover.

Twelve weeks of CFRA plus twelve weeks of FMLA is what the law provides when the reasons are different. The federal regulations confirm it: under 29 CFR 825.701, an employee who used state leave to care for a seriously ill grandparent keeps the full FMLA entitlement, because that leave was for a purpose FMLA does not cover.

What you can do is see the 24 weeks coming. That requires tracking the two banks separately rather than as one pool, and it requires knowing at the moment of designation which law a given leave qualifies under.

An employer running a single combined leave counter will not notice the FMLA bank sitting untouched until an employee points it out, at which point they are 12 weeks into a 24-week absence they did not plan for.

This exposure exists only at employers with 50 or more employees. If you are between 5 and 49, only CFRA applies and there is only one bank, so stacking in this form cannot happen.

If You Have 5 to 49 Employees

This is the band nobody writes for, and it is where most California small businesses actually sit. Here is what is true of you specifically.

You are covered by CFRA in full, even though FMLA does not apply to you. An eligible employee, meaning one with 12 months of service and 1,250 hours in the prior year, is entitled to 12 weeks of unpaid, job-protected leave, with continued group health benefits on the same terms and a right to reinstatement to the same or a comparable position.

What you do not have is a concurrency problem. Only one law is running, so there is one bank, one set of notices, and one designation decision. In that narrow sense your administration is simpler than a larger employer's. What you also do not have is an HR department, which is the actual difficulty.

Designation and Notice Duties

Both laws require the employer to respond to a leave request and to designate the leave, and the designation is not optional paperwork. It is what starts the clock.

Two clocks run at five business days each. The CFRA regulations require the employer to respond to a leave request as soon as practicable and no later than five business days after receiving it. The federal designation notice is due within five business days of the employer having enough information to decide whether the reason qualifies.

Either way the employer must tell the employee whether the leave falls under CFRA, FMLA, or both. Under FMLA, the designation notice and the rights and responsibilities notice must both be in writing. Under CFRA, the employer must state its guarantee to reinstate the employee when it grants the leave, and put that guarantee in writing if the employee asks.

The designation determines which bank or banks the leave draws from, which is the mechanism the stacking section above depends on. Write it down on a form like this one and keep it with the request:

The failure mode here is quiet and expensive. An employer who never designates the leave may find that the bank never started running, and that an employee who has been out for months still has their full entitlement available.

The federal FMLA notice and designation requirements are a core part of the law, and California layers its own on top. If you take one procedural instruction from this article, let it be that you answer every request in writing and say which law the leave falls under.

Neither One Pays

Both CFRA and FMLA are unpaid, which puts them in the same administrative bucket as any other unpaid time off you grant. They provide job protection and continued health benefits, not wages, and this surprises employees constantly. The money, where there is any, comes from an entirely separate system.

In California, wage replacement during a protected leave comes from State Disability Insurance when the employee is the one with the serious health condition, and from Paid Family Leave for caring for a family member or bonding with a new child. These are state programs funded by employee payroll deductions, not employer obligations to pay wages.

Paid time off substitution has a catch. An employer may generally require an employee to use accrued vacation or PTO during unpaid CFRA leave, but the CFRA regulations say an employee drawing State Disability Insurance or Paid Family Leave benefits is not on unpaid leave, so the employer may not require it then.

Keep the two systems separate, because they run on different clocks and have different rules. An employee can be protected and unpaid, or paid by the state but, at an employer with fewer than five employees, unprotected.

What Else Counts as a Medical Leave of Absence in California

A medical leave of absence in California is rarely one entitlement. Short absences come out of paid sick leave, which the state has required at a minimum of 40 hours or five days a year since January 1, 2024. The long ones run under CFRA, and pregnancy disability runs under PDL.

The handoff that catches employers comes at week thirteen. Exhausting the CFRA bank does not end your duty under the Fair Employment and Housing Act, which the California Civil Rights Department enforces, and a further period of finite leave can itself be a reasonable accommodation for a disability.

Terminating on the day the 12 weeks run out is the riskiest move a California employer can make on a medical leave, and that decision belongs with counsel rather than with a calendar. Day to day the fix is smaller: record which entitlement each absence draws on at the time, because two sick days are not CFRA leave.

The Compliance Checklist

Run your business against this. If you employ anyone in California, some of it applies to you today.

Common Mistakes

These recur, and the first one is by far the most damaging.

The first mistake is not a technical error. It is the difference between complying with the law and committing an unlawful employment practice, and the employer who makes it usually does so in complete good faith, having correctly researched the wrong statute.

Good faith does not help, because the CFRA regulations count refusing to authorize CFRA leave as interference with the employee's rights. If you have five or more employees in California, CFRA applies to you, and it has since January 2021. So start now: answer every leave request in writing and say which law covers it.

Frequently Asked Questions