SECTION I FML/ CFRA
FML / CFRA
What Is Protected, What Can Be Enforced, and What Is Not Allowed
This page explains how Family and Medical Leave (FMLA / CFRA), sick leave, disability, and attendance rules actually work. It is intended to help employees understand their protections and avoid being misled by incorrect or incomplete information.
WHAT FMLA / CFRA PROTECTS
FMLA and CFRA protect qualifying absences related to a serious health condition, care for a family member, bonding leave, and certain related medical needs.
Protected absences include:
Absences related to approved FMLA or CFRA leave
Intermittent or reduced schedule leave
Absences tied to flare-ups of a documented condition
Time off related to treatment, recovery, or medical appointments
Protected means the absence itself cannot be used as discipline or counted as misconduct solely because it occurred.
ESTIMATED FREQUENCY IS NOT A HARD LIMIT
When intermittent leave is approved, an estimated frequency is provided. This estimate is not a cap.
Medical conditions can flare unpredictably. Exceeding an estimated frequency due to a legitimate flare-up does not automatically make an absence unprotected.
Unforeseeable medical events are recognized under FMLA, CFRA, ADA, and FEHA.
ATTENDANCE RULES: WHAT CAN BE ENFORCED
Employers may enforce reasonable attendance procedures that do not conflict with the law or the union contract.
This includes:
Following the call-in procedure
Providing notice as soon as practical
Staying within allowed leave categories
Notification requirements must be reasonable and realistic. There is no fixed time in California law or the AFSCME 3299 SX contract that requires notice hours before a shift for unforeseeable medical events.
WHAT CANNOT BE USED AGAINST YOU
The following cannot be used as discipline solely because they occurred:
Being on FMLA or CFRA
Using protected sick leave
Being placed on Leave Without Pay (LWOP) due to protected leave
Absences tied to a protected medical condition
Absences related to work-related injuries
School activities leave protected by law
LWOP is a payroll status. It is not misconduct.
An employer may track attendance, but they cannot penalize an employee for the protected nature of the absence.
“NO DOCTOR’S NOTES” — WHAT THAT ACTUALLY MEANS
Under California’s Healthy Families Act, employers generally cannot require a doctor’s note for protected sick leave.
Medical documentation requests must follow specific legal and contractual rules and cannot be used to discourage or punish lawful leave.
Medical information is also protected by privacy laws. Only limited, job-related information may be requested in specific circumstances.
ADA / FEHA AND MEDICAL CONDITIONS
Some medical conditions are automatically protected under ADA and FEHA.
Reasonable accommodations may include:
Modified schedules
Intermittent absences
Adjusted notification expectations
Attendance rules must be applied in a way that does not discriminate against disabled employees.
UNILATERAL CHANGES TO ATTENDANCE RULES
Departments cannot create stricter attendance or call-out rules than what exists in the AFSCME 3299 SX contract.
If a call-out rule was not bargained, it may be unenforceable.
Changes to attendance standards, notification timing, or discipline practices must be negotiated. Departments cannot impose unilateral changes.
IMPORTANT REMINDERS
Protected leave is protected even if it is inconvenient.
“As soon as practical” depends on the circumstances, not a rigid clock.
System issues, lack of supervision, or medical emergencies do not convert protected absences into misconduct.
If you are told something that conflicts with this, ask for clarification in writing and document who said what.
SECTION II GENERAL ATTENDANCE & CALL OUT RULES
This section applies when an absence is not protected by FMLA, CFRA, sick leave, disability, Workers’ Compensation, or another legal or contractual protection.
General attendance rules still exist, but they are not unlimited.
WHAT EMPLOYERS MAY ENFORCE
When leave is not protected, departments may enforce reasonable attendance expectations, including:
Following the established call-in procedure
Providing notice as soon as practical
Using appropriate leave balances
Not abusing attendance privileges
Attendance expectations must be clearly communicated and consistently applied.
WHAT “REASONABLE NOTICE” ACTUALLY MEANS
Neither California law nor the AFSCME 3299 SX contract sets a fixed call-out time for unforeseeable events.
“Reasonable notice” depends on the circumstances.
Reasonableness considers:
The nature of the absence
Whether the event was foreseeable
The employee’s ability to notify the department
Medical or emergency conditions
Access to a phone or system
A rigid rule that requires notice hours in advance for unforeseeable events may be unreasonable.
LIMITS ON DEPARTMENT-CREATED RULES
Departments cannot create attendance or call-out rules that:
Were not bargained
Conflict with the union contract
Are medically unrealistic
Disproportionately impact disabled employees
Punish protected absences indirectly
Department rules must align with the contract and applicable law.
ATTENDANCE VS. PAY STATUS
Pay status and attendance are not the same thing.
Leave Without Pay (LWOP) is a payroll status.
LWOP alone is not misconduct.
An absence may be tracked for attendance purposes, but the pay status itself cannot be used as discipline.
CONSISTENT ENFORCEMENT MATTERS
Attendance rules must be enforced consistently.
Unequal enforcement — such as stricter application to certain employees, shifts, or departments — may be improper and subject to challenge.
SYSTEM ISSUES AND MANAGEMENT FAILURES
Employees cannot be held responsible for attendance problems caused by:
System outages
Broken call-in tools
Conflicting instructions
Unreachable supervisors or dispatch
Attendance discipline requires a reasonable ability to comply.
WHEN GENERAL ATTENDANCE BECOMES A PROBLEM
General attendance issues may need review when:
Rules suddenly change
Discipline escalates without warning
Attendance is tied to protected activity
Medical or disability issues are ignored
Policies conflict with the contract
If something feels inconsistent or unreasonable, document the issue and seek clarification.
REMINDER
Attendance rules exist, but they are not absolute.
They must be reasonable, bargained, and applied in a way that does not override protected rights.
SECTION III: ENFORCEMENT, ESCALATION & PROTECTIONS
This section explains what to do when attendance or leave rules are being misapplied, weaponized, or used to pressure employees, even when the absence itself may appear “allowed on paper.”
PROTECTED VS. ENFORCEABLE — THE LINE THAT MATTERS
An employer may track attendance.
An employer may enforce reasonable procedures.
An employer may not:
Discipline an employee for using protected leave
Use attendance rules to discourage lawful leave
Apply stricter rules to protected absences
Punish employees for disability-related needs
When enforcement crosses from procedure into punishment, protections apply.
RETALIATION DOES NOT HAVE TO BE OBVIOUS
Retaliation is not limited to termination or suspension.
It can include:
Sudden write-ups after leave use
Escalated attendance scrutiny
Changing standards midstream
Threats framed as “policy reminders”
Discipline that follows protected activity
Timing and pattern matter. One action alone may not be retaliation — a pattern can be.
AUTOMATIC PROTECTIONS UNDER ADA & FEHA
Some medical conditions are automatically protected under ADA and FEHA.
This means:
Attendance expectations may need adjustment
Call-out timing may need flexibility
Discipline standards may need modification
Employers are required to engage in an interactive process when disability-related issues affect attendance.
Failure to do so may violate the law.
WHEN “POLICY” IS USED INCORRECTLY
Policies cannot override:
State law
Federal law
The union contract
If you are told:
“This is policy”
“This is how we do it here”
“This came from leadership”
You are entitled to ask:
Which policy?
Which contract article?
How does this align with state law?
A policy that conflicts with higher authority may not be enforceable.
DOCUMENTATION IS PROTECTION
Documentation does not escalate a situation — it preserves accuracy.
Document:
Dates and times
Exact instructions
Who communicated the rule
What changed and when
Use neutral language. Avoid conclusions. Stick to facts.
You do not need permission to document.
WHEN TO SEEK HELP
Consider escalating when:
Rules change without notice
Discipline increases suddenly
Protected leave is questioned
Medical issues are dismissed
You are told not to document
You are discouraged from seeking help
Use the Resources page to identify the correct office or agency.
IMPORTANT REMINDER
You do not lose protection because:
An absence is inconvenient
A department is short-staffed
A manager is frustrated
A system is inefficient
Protected rights do not disappear under pressure.
SECTION IV: COMMON SCENARIOS & QUICK ANSWERS
This section addresses real situations employees commonly face. These are not hypotheticals — they are patterns.
“I CALLED OUT SICK AND THEY’RE SAYING IT COUNTS AGAINST ME”
If the absence is protected by FMLA, CFRA, sick leave, disability, or Workers’ Compensation, the absence itself cannot be used as discipline solely because it occurred.
The department may review whether notice was given as soon as practical, but they cannot punish the protected nature of the absence.
“I EXCEEDED MY ESTIMATED FML FREQUENCY”
Estimated frequency is not a hard limit.
Medical conditions can flare unpredictably. Exceeding an estimate due to a legitimate flare-up does not automatically remove protection.
Unforeseeable events remain protected under FMLA, CFRA, ADA, and FEHA.
“I DIDN’T GIVE ENOUGH NOTICE”
For unforeseeable medical events, notice is required as soon as practical, not hours in advance.
There is no fixed call-out time in California law or the AFSCME 3299 SX contract for unforeseeable absences.
Rigid rules that ignore medical reality may be unreasonable.
“THEY SAID IT’S LWOP SO IT COUNTS AGAINST ME”
LWOP is a payroll status, not misconduct.
An absence may be tracked administratively, but LWOP itself cannot be used as discipline or treated as wrongdoing.
Protected leave does not lose protection because it is unpaid.
“THEY ASKED FOR A DOCTOR’S NOTE”
California law limits when doctor’s notes can be required for sick leave.
Medical documentation requests must follow specific legal and contractual rules and cannot be used to discourage or punish lawful leave.
Medical privacy laws also limit what information can be requested or shared.
“THEY CHANGED THE CALL-OUT RULE”
Departments cannot unilaterally change attendance or call-out rules.
Changes to working conditions must be bargained.
A rule that suddenly appears and was not negotiated may be unenforceable.
Ask when the rule changed and under what authority.
“I’M BEING WRITTEN UP BUT OTHERS AREN’T”
Attendance and discipline rules must be enforced consistently.
Unequal enforcement — especially when tied to protected leave, disability, or specific employees — may be improper and subject to challenge.
Patterns matter.
“THE SYSTEM MESSED UP BUT I’M GETTING BLAMED”
Employees cannot be disciplined for failures caused by broken systems, lack of access, or management breakdowns.
Discipline requires a reasonable ability to comply.
System failures are not employee misconduct.
“THEY’RE PRESSURING ME TO SIGN OR AGREE RIGHT NOW”
You are allowed to slow the process down.
You may ask for time, clarification, or written explanations.
Immediate pressure does not override your rights.
“THIS JUST FEELS WRONG BUT I CAN’T EXPLAIN WHY”
That feeling is often the first signal.
When rules are unclear, shifting, or inconsistently enforced, documentation and clarification are appropriate.
You do not need to prove a violation before asking questions.
FINAL REMINDER
You do not need to argue the law in the moment.
You protect yourself by:
Knowing the basics
Documenting facts
Asking for clarity
Using the right channels
That is not insubordination — it is self-protection.
WHERE TO GO IF THIS IS HAPPENING
Contacts and offices: Resources
Leave protections: FML & Attendance
Contract protections: Know Your Contract
Escalation guidance: When Something Goes Wrong
EVS LIVES MATTER 