CFRA Interference and Retaliation: Government Code Section 12945.2 After SB 1383 and AB 1041

Current as of July 1, 2026 · A practitioner’s synthesis of the California Family Rights Act’s two liability theories — interference and retaliation — with the current statutory text verified against the official code, the leading Court of Appeal authority, and the unresolved honest-belief problem after Richey v. AutoNation. Statutory quotations are from the section as amended through AB 1041 (Stats. 2022, ch. 748), effective January 1, 2023.

In brief. The California Family Rights Act (Gov. Code, § 12945.2) entitles an eligible employee of any employer with five or more employees to “take up to a total of 12 workweeks in any 12-month period for family care and medical leave,” with “a guarantee of employment in the same or a comparable position” on return. (§ 12945.2, subd. (a).) Violations divide into two claim types with different proof structures: interference claims under subdivision (q) — which prohibits an employer from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of, or the attempt to exercise, any right” under the CFRA and which carries no McDonnell Douglas burden-shifting — and retaliation claims under subdivision (k), which do. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 879, 885; Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 233, 248, 250.) The case law is emphatically employee-protective on mechanics: no magic words are required to request leave, the employer bears a duty to inquire, and certification disputes must be run through the statute’s second-opinion procedure — not resolved by termination. (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 562–571.)

1. The statute and why it matters

The Moore-Brown-Roberti Family Rights Act, part of the FEHA, “is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.” (Faust, supra, 150 Cal.App.4th at p. 878, quoting Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 606.) The Supreme Court has distilled the Act to “two principal components: a right to leave of up to 12 weeks in any 12-month period to care for a family member or for the employee’s own medical condition …, and a right to reinstatement in the same, or a comparable, position at the end of the leave.” (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 919.) California courts routinely rely on federal FMLA cases when construing the CFRA, and the regulations incorporate the federal FMLA regulations to the extent consistent. (Bareno, supra, 7 Cal.App.5th at p. 552, fn. 2; Cal. Code Regs., tit. 2, § 11096.)

Two legislative expansions transformed the statute’s reach, and much published case law — including the three leading decisions discussed below — predates them. Practitioners must therefore read the older cases with a renumbering table in hand: the interference provision the cases cite as subdivision (t) is now subdivision (q); the retaliation provision cited as subdivision (l)(1) is now subdivision (k)(1); and the certification provision cited as subdivision (k) is now subdivision (j).

2. Coverage and eligibility after SB 1383 and AB 1041

The five-employee threshold. SB 1383 (Stats. 2020, ch. 86, eff. Jan. 1, 2021) eliminated the historic 50-employee threshold. The current text makes it “an unlawful employment practice for any employer … to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period …, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave,” and defines “employer” as “[a]ny person who directly employs five or more persons to perform services for a wage or salary” or a public entity. (§ 12945.2, subds. (a), (b)(4).) Small-employer CFRA litigation — impossible before 2021 — is now a standard part of the wrongful-termination intake.

The expanded family. SB 1383 also broadened whose serious health condition qualifies. Protected “family care and medical leave” now includes “[l]eave to care for a child, parent, grandparent, grandchild, sibling, spouse, domestic partner, or designated person who has a serious health condition,” leave for the birth, adoption, or foster placement of a child, leave for “an employee’s own serious health condition” (other than pregnancy disability, which travels under section 12945), and qualifying-exigency leave relating to a family member’s covered active military duty. (§ 12945.2, subd. (b)(5).) “Child” is no longer age-limited to minors and includes “a person to whom the employee stands in loco parentis.” (Id., subd. (b)(1).)

The “designated person.” AB 1041 (Stats. 2022, ch. 748, eff. Jan. 1, 2023) added the most distinctive feature of California leave law: a “designated person,” defined as “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” The employee “may … identif[y]” the designated person “at the time the employee requests the leave,” and “[a]n employer may limit an employee to one designated person per 12-month period for family care and medical leave.” (§ 12945.2, subd. (b)(2).) There is no advance-designation requirement; the statute expressly contemplates identification at the moment of the request.

The wage-replacement horizon: SB 590. Job protection and wage replacement are separate systems, and the Legislature has now begun conforming the second to the first. SB 590 (Stats. 2025, ch. 772), signed October 13, 2025, will — “commencing July 1, 2028” — expand eligibility for Paid Family Leave wage-replacement benefits to workers who take time off “to care for a seriously ill designated person,” defined for PFL purposes as “any care recipient related by blood or whose association with the individual is the equivalent of a family relationship.” (Sen. Bill No. 590 (2025–2026 Reg. Sess.); Stats. 2025, ch. 772, amending Unemp. Ins. Code, §§ 3301–3303.) Until then, designated-person leave under the CFRA is job-protected but not state-wage-supported.

3. The leave right and reinstatement

The core entitlement carries its own reinstatement guarantee: leave “shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave.” (§ 12945.2, subd. (a).) “Employment in the same or a comparable position” means “a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.” (Id., subd. (b)(6).) During leave the employer must maintain group health coverage on the same terms for up to 12 workweeks (id., subd. (e)(1)), the employee “shall retain employee status,” the leave “shall not constitute a break in service,” and the returning employee comes back “with no less seniority” for layoff, recall, promotion, and related purposes (id., subd. (f)). CFRA leave runs concurrently with FMLA leave except FMLA leave for pregnancy disability, and pregnancy-disability leave under section 12945 is in addition to CFRA leave. (Id., subds. (o), (p).)

Reinstatement is where most litigation begins: the employee who is terminated during or at the end of leave has, by definition, been denied the guarantee. As discussed in section 7 below, Richey addresses the principal employer defense — that reinstatement was refused for a reason unrelated to the leave.

4. Notice, certification, and the employer’s duty to inquire

The employee’s request: no magic words. If the need for leave is foreseeable, the employee “shall provide the employer with reasonable advance notice.” (§ 12945.2, subd. (g).) The regulations fill in the rest: “an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA,” and “[t]he mere mention of ‘vacation,’ other paid time off, or resignation does not render the notice insufficient, provided the underlying reason for the request is CFRA-qualifying.” (Cal. Code Regs., tit. 2, § 11091, subd. (a)(1); Moore, supra, 248 Cal.App.4th at p. 249.) In Moore, an employee’s statement that she would need “two or three” days off for heart surgery months later was enough to create a triable issue that she exercised CFRA rights — even though she never used the word “leave,” let alone “CFRA.” (Moore, at pp. 249–250.) Whether notice is sufficient “is a question of fact.” (Bareno, supra, 7 Cal.App.5th at p. 565, quoting Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1255.)

The employer’s duty to inquire. The same regulation instructs that “[t]he employer should inquire further of the employee if necessary to determine whether the employee is requesting CFRA leave.” (Cal. Code Regs., tit. 2, § 11091, subd. (a)(1).) The Courts of Appeal treat this as a real obligation: “an employer bears a burden, under CFRA, to inquire further if an employee presents the employer with a CFRA-qualifying reason for requesting leave” (Moore, supra, 248 Cal.App.4th at p. 249), and an employer “placed on notice that the leave might be covered” must “inquire further to determine whether the absence was likely to qualify for CFRA protection” (Faust, supra, 150 Cal.App.4th at p. 884, citing Bachelder v. America West Airlines, Inc. (9th Cir. 2001) 259 F.3d 1112, 1131).

Certification and the second-opinion procedure. The employer “may require” that a medical-leave request be supported by a health care provider’s certification, which “shall be sufficient” if it states (A) the date the serious health condition commenced, (B) the probable duration of the condition, and (C) that the condition renders the employee unable to perform the functions of the position. (§ 12945.2, subd. (j)(1).) Recertification may be required “on a reasonable basis.” (Id., subd. (j)(2).) Critically, an employer that doubts a certification’s validity has a statutory remedy — a second opinion at the employer’s expense, then a binding third opinion if the first two conflict (id., subd. (j)(3)) — and Bareno holds the employer to that path: “CFRA envisions exactly this kind of give-and-take between an employer and an employee,” and an employer that never told the employee her documentation was deficient, never inquired further, and simply deemed her to have “voluntarily resigned” cannot win summary judgment on the theory that the certification was inadequate. (Bareno, supra, 7 Cal.App.5th at pp. 570–571.) The certification need not disclose the underlying condition (Cal. Code Regs., tit. 2, § 11087, subd. (a)(2)), the employee must be given no fewer than 15 days to supply it, and “in some cases, the leave may begin before the employer receives the certification.” (Id., § 11091, subd. (b)(3); Bareno, at p. 565.)

The employer’s own notice obligations. Employers must post and give notice of CFRA rights (Cal. Code Regs., tit. 2, § 11095), and failure “preclude[s] the employer from taking any adverse action against the employee, including denying CFRA leave, for failing to furnish the employer with advance notice of a need to take CFRA leave.” (Id., § 11091, subd. (a)(5).) Faust made this a “threshold issue”: where the record failed to show the employer met its notice obligations, “certain legal consequences” followed and summary adjudication of the interference claim was precluded. (Faust, supra, 150 Cal.App.4th at pp. 868–869, 881; accord, Moore, supra, 248 Cal.App.4th at pp. 252–254.)

5. Interference claims: subdivision (q), without McDonnell Douglas

Subdivision (q) makes it unlawful “for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.” (§ 12945.2, subd. (q).) The elements are spare: “(1) the employee’s entitlement to CFRA leave rights; and (2) the employer’s interference with or denial of those rights.” (Moore, supra, 248 Cal.App.4th at p. 250.) The defining doctrinal feature is what the claim does not require: “An interference claim under the FMLA (and thus the CFRA) does not involve the burden-shifting analysis articulated … in McDonnell Douglas“; ” ‘there is no room for a McDonnell Douglas type of pretext analysis when evaluating an “interference” claim.’ ” (Faust, supra, 150 Cal.App.4th at p. 879, quoting Bachelder, supra, 259 F.3d at p. 1131; accord, Moore, at p. 250.) The employer’s motive is irrelevant; denial of the entitlement is the violation.

Interference is broader than outright denial. Terminating an employee before addressing a pending leave request is interference (Moore, supra, 248 Cal.App.4th at pp. 250–251); so, potentially, is a failure to notify the employee of CFRA rights where it “affects [the employee’s] rights under” the statute (id. at p. 253). And an employee’s failure to invoke the statute by name is no defense: on the Moore record, a fact finder could conclude the employee “had formed no specific intent” to decline CFRA leave she was never told about — distinguishing the Ninth Circuit’s rule that an employee may affirmatively decline FMLA leave. (Id. at pp. 251–252, distinguishing Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236, 1244.)

6. Retaliation claims: subdivision (k), with McDonnell Douglas

Subdivision (k)(1) makes it unlawful to “refuse to hire, or to discharge, fine, suspend, expel, or discriminate against” any individual because of “[a]n individual’s exercise of the right to family care and medical leave provided by subdivision (a)” or the giving of information or testimony about family care and medical leave in a related inquiry or proceeding. (§ 12945.2, subd. (k)(1).) The elements: ” ‘(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA [leave].’ ” (Faust, supra, 150 Cal.App.4th at p. 885; accord, Bareno, supra, 7 Cal.App.5th at p. 560; Moore, supra, 248 Cal.App.4th at p. 248.) Unlike interference, retaliation runs on the McDonnell Douglas burden-shifting framework. (Bareno, at p. 560.)

Two proof points from the cases carry most summary judgment oppositions. First, the third element asks whether the employee “exercised her right to take leave” for a qualifying purpose — not whether she expressly requested “CFRA leave.” (Moore, supra, 248 Cal.App.4th at pp. 248–249.) Second, timing does heavy causation work: ” ‘When an adverse employment action “follows hard on the heels of protected activity, the timing often is strongly suggestive of retaliation.” ‘ ” (Bareno, supra, 7 Cal.App.5th at p. 571, quoting Collazo v. Bristol-Myers Squibb Manufacturing, Inc. (1st Cir. 2010) 617 F.3d 39, 50.) In Bareno, an employer that deemed an employee to have “voluntarily resigned” after five days of absence — while she was e-mailing medical certifications it claimed not to receive, and while it deliberately declined to contact her — could be found to have retaliated for the leave itself. (Id. at pp. 571–574.) The court emphasized that the employer “had to overlook many other communications from Bareno, and had to ignore its own obligations to inquire,” to reach its abandonment conclusion. (Id. at p. 574.)

A CFRA violation also supports the tort of wrongful termination in violation of public policy, with its fuller damages exposure: an employee may “bring a tortious wrongful discharge claim against an employer subject to the CFRA based upon the policy prohibiting discrimination under the FEHA’s CFRA.” (Faust, supra, 150 Cal.App.4th at p. 886, quoting Nelson, supra, 74 Cal.App.4th at p. 609.)

7. The honest-belief problem after Richey

The unresolved question at the center of CFRA reinstatement litigation is the federal “honest belief” defense: may an employer defeat a reinstatement claim by showing it honestly — even if mistakenly — believed the employee was misusing leave? In Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, an arbitrator applied the federal honest-belief rule to reject the CFRA claim of an employee fired for working at his family restaurant while on medical leave. The Supreme Court reinstated the arbitrator’s award — but pointedly on arbitration-deference grounds, not on the merits of the defense. Under the narrow standard governing review of arbitration awards, even legal error does not justify vacatur unless it deprives a party of an unwaivable statutory right; the arbitrator’s finding that the employee was dismissed for violating a uniformly applied outside-employment policy — not for taking leave — meant any error in invoking the honest-belief defense did not strip the employee of his core CFRA protections. (See our analysis of Richey.)

The consequence is a doctrinal vacuum: Richey expressly left open whether the honest-belief defense applies to CFRA claims in California courts, and no California Supreme Court decision has since adopted or rejected it. Plaintiffs should argue that the defense is inconsistent with the interference framework — which asks only whether the entitlement was denied, without regard to motive (Faust, supra, 150 Cal.App.4th at p. 879) — and that under Bareno an employer’s professed belief cannot be “honest” where the employer ignored its regulatory duties to inquire and to use the certification procedures before acting (Bareno, supra, 7 Cal.App.5th at pp. 570–571, 574). Employers will argue the federal analogy and Richey‘s facts. Until the Supreme Court resolves the question, the safest characterization is Richey‘s own: the validity of the honest-belief defense under the CFRA remains unsettled — and its practical lesson is procedural, because in arbitration the deferential review standard may insulate an award applying the defense either way.

8. Leading authorities

Gov. Code, § 12945.2 (as amended through AB 1041, Stats. 2022, ch. 748) — the operative text: eligibility and the reinstatement guarantee (subd. (a)); definitions including “designated person” (subd. (b)); benefits continuation (subd. (e)); seniority (subd. (f)); notice (subd. (g)); certification and second opinions (subd. (j)); retaliation (subd. (k)); concurrency with FMLA (subds. (o), (p)); interference (subd. (q)).

Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909 — the Supreme Court’s principal CFRA decision: the Act’s two components are leave and reinstatement (p. 919); the honest-belief defense expressly left undecided; arbitration awards applying it survive deferential review absent deprivation of an unwaivable right. Full analysis.

Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864 — interference claims carry no McDonnell Douglas analysis (p. 879); the employer’s own notice obligations are a threshold issue precluding summary judgment when unaddressed (pp. 868–869, 881); retaliation elements (p. 885); CFRA supports a Tameny claim (p. 886); a chiropractor may certify within the regulatory limits (p. 884).

Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546 — the certification give-and-take: employers who doubt certification must inquire or invoke the statutory second-opinion procedure, not terminate (pp. 570–571); notice sufficiency is a question of fact (p. 565); temporal proximity supports causation (p. 571); “voluntary resignation” framing of leave-related absence is a jury question (pp. 571–574).

Moore v. Regents of University of California (2016) 248 Cal.App.4th 216 — interference and retaliation elements restated (pp. 248, 250); no magic words and the employer’s duty to inquire (p. 249); termination before acting on a leave request; Escriba distinguished (pp. 250–252); a leave request is also a FEHA accommodation request under current law (see pp. 243–247, discussing § 12940, subd. (m)(2) as added by AB 987 (Stats. 2015, ch. 122)).

Read § 12945.2 official text (leginfo) →

9. Practice notes

Reconstruct the request timeline first. The dispositive facts are usually communications: when the employee said anything conveying a qualifying reason, what the employer did in response, and whether the employer ever invoked the certification machinery. Under Moore and Bareno, ambiguity cuts against the employer, which bears the duty to inquire. (Moore, supra, 248 Cal.App.4th at p. 249; Bareno, supra, 7 Cal.App.5th at pp. 567–568.)

Plead both theories — and keep them straight. Interference (subd. (q)) for the denial of the entitlement itself, free of McDonnell Douglas; retaliation (subd. (k)) for the adverse action, with timing and inconsistency evidence. Add the Tameny count for tort damages. (Faust, supra, 150 Cal.App.4th at pp. 879, 885–886.)

Audit the employer’s compliance before answering its defenses. Discovery should establish whether the employer posted and gave the required CFRA notices, what its leave policies said, and whether it followed the second-opinion procedure. Each failure is affirmative ammunition: no notice can preclude adverse action based on the employee’s notice failures (Cal. Code Regs., tit. 2, § 11091, subd. (a)(5)); skipping the certification procedure undermines any documentation-based defense (Bareno, supra, 7 Cal.App.5th at pp. 570–571).

Check the numbers. Post-SB 1383, coverage requires only five employees; eligibility requires more than 12 months of service and 1,250 hours in the prior 12 months (§ 12945.2, subds. (a), (b)(4)) — and flight crews have special hour rules (subd. (r)). Post-AB 1041, ask every client about nonfamily caregiving: a designated-person relationship can be identified at the time of the request. (Id., subd. (b)(2).)

For employers. The through-line of Faust, Moore, and Bareno is that silence and formalism lose: respond to leave-adjacent communications, ask the follow-up question, use the statutory certification tools, and never treat a medically documented absence as job abandonment without exhausting the inquiry obligations first.

10. Related coverage

Related on this site: our case analysis of Richey v. AutoNation; the statute post on Government Code section 12940 (a leave request is also an accommodation request under section 12940(m), and disability discrimination claims typically travel with CFRA claims, as in Moore); our practice guide on FEHA retaliation under section 12940(h); and the case index.