Family Leave Requirements for California
California has both paid disability insurance and leave rights. The state's leave rights are codified in The Fair Employment and Housing Act (FEHA) and the California Labor Code. The FEHA is a broad anti-discrimination law.
The California Family Rights Act is a part of the FEHA and very similar to the FMLA. The CFRA covers private employers with 50 or more workers within 75 miles of the worksite and public employers with any number of workers. Employees that are eligible are allowed to take up to 12 weeks in any 12-month period.
Family and medical care leave is allowed for the following reasons:
- Birth or adoption of a child, or placement of a foster child.
- Serious health condition of a spouse, child, or parent.
- Employee's own serious health condition.
Employees are eligible if they have worked for their employer for 1,250 hours in the previous 12-month period.
Birth or Adoption of a Child
CFRA has unique allowances regarding time and manner in which leave is taken involving birth, adoption or placement in foster care. CRFA provides that a minimum duration of such leave is two weeks. In addition, the employer must grant requests for leave in increments of at least one day, but less than two weeks, on two separate occasions.
Leave for both Parents
- Each parent is eligible for up to 12 weeks of CFRA family leave for the birth, adoption or foster care of a child.
- If parents work for the same employer, they must share leave.
Continuation of Benefits
- Employers must continue and pay for medical coverage under a group health plan for an employee who is on CFRA leave during the leave.
- Coverage will not exceed 12 workweeks in a 12-month period.
- An employer may recover premiums paid for coverage if employee fails to return from leave and if the employee's failure to return is not due to the continuation, recurrence or onset of serious health condition or other circumstances beyond the control of the employee.
Substitution of Paid Leave
- The employer may require or an employee may elect that the employee substitute accrued vacation leave under CFRA.
- The employer may require or an employee may elect that the employee substitute accrued sick leave under CFRA if leave is due to employee's own serious health condition.
- Employees may not use sick leave for the birth, adoption or foster care of a child unless employer agrees.
Exemption for Reinstating Highly Compensated Employees
- Employers must allow family or medical leave to a salaried employee who is among the top 10% of earners of employees working within 75 miles of the worksite.
- Restoration of employee to previous work status is at the discretion of employer if the restoration would be detrimental to the employer's business. (See ¶421 of the Handbook for details.)
- Employee must be notified by employer of intent to refuse reinstatement.
- If leave has already begun, employer must give employee a reasonable opportunity to return to work following the notice.
Basis for Wrongful Discharge Claims
An employee may file a wrongful discharge claim, asserting a violation of public policy under CFRA.
- CFRA can be enforced through administrative or court action.
- A case brought before the FEHC (Federal Employment and Housing Commission) may be ordered by the commission to reinstate employee with back pay.
- The FEHC may also award actual damages for conditions relating to pain and suffering, mental anguish or other causes of up to $50,000 and assess civil penalties of up to $25,000.
- Disputes litigated in a court of law may be awarded unlimited damages, attorney's fees and compensatory damages.
Pregnancy Disability Leave
- Under the FEHA, private employers with five or more employees and public employers must provide up to four months leave for pregnancy, childbirth or related conditions regardless of amount of time a women has been employed and regardless of she works full or part-time.
- If an employer allows leave for more than four months for other disabilities, it must also allow that same amount of time of for pregnancy disability.
- An employee who becomes pregnant or gives birth could take up to 28 weeks of leave during a 12-month period if she qualifies for CFRA or FMLA leave in addition to FEHA leave.
- Employees may use accrued vacation leave or sick leave during pregnancy disability leave. (State employees have paid disability leave under their NDI program.)
Expanded Sick Leave ('Kin Care') (Cal. Lab. Code §233)
- All private and public employees are allowed to use accrued sick leave to care for a sick child, parent, spouse or domestic partner. (The statute does not limit the definition of illness.)
- This law is not linked to the CFRA or the FMLA, but it states that it does not extend the maximum period of leave that an employee is legally entitled to under those laws, regardless of whether an employee receives sick leave compensation during leave.
- If the leave qualifies for FMLA or CRFA protection, paid leave under the code would run concurrently with leave offered by state and federal laws.
- Annual sick leave available for "kin care" must be at least half of what the employee accrued in one year. Any remaining sick leave may be restricted for use for employee's own illness.
- Sick leave does not include any benefit provided under an employee welfare benefit plan and does not include any of the following benefits: insurance, workers' compensation, unemployment compensation disability or a benefit not payable from the employer's general assets.
- If an employer does not allow an employee to use accrued sick leave for "kin care" or otherwise interferes with an employee's right to use sick leave in this way, the employee is entitled to reinstatement (if terminated) and actual damages or one day's pay, whichever is greater.
- If an employer provides sick leave for its workers, the law's mandates must be followed.
- Employers may change their existing sick leave policies.
- Employers who have uncapped sick leave plans are not subject to the "kin care" provision of §233, under a California Supreme Court ruling.
Organ and Bone Marrow Donation
- Under the Michelle Maykin Memorial Donation Protection Act, an employee who has exhausted his or her sick leave my take up to 30 day leave of absence for purpose of organ donation and for up to 5 days for bone marrow donation in one year.
- Leave will be counted as business days, not calendar days.
- The year period for measuring how much leave can be taken must begin on the day the employee's leave starts, rather than the start of the calendar year.
- Leave cannot be considered a break in service when calculating salary adjustments, accrual of vacation, sick leave, paid time off or seniority.
- Employees receiving bone marrow donations may take up to five days of accrued vacation, sick leave or paid time off and up to two weeks of such time for organ donation receipt, before an employer is be obligated to pay employees for bone marrow or organ donation time off, unless such a policy would violate a collective bargaining agreement.
- The employee must provide written certification of the need and eligibility for the donation.
- Employees must be allowed to remain on the employer's group health plan, paying premium contributions as if the employer were still at work.
- Employees must be reinstated to the same or equivalent position.
- Leave need not be all at once. There may be other necessary medical procedures related to the donation. In this case, the total allotment must not exceed 5 days for bone marrow donation or 30 days for organ donation.
- Bone marrow and organ donation leave is separate from and in addition to FMLA or CFRA leave. Therefore, an employee may take an additional 12 weeks of unpaid leave for serious health condition related to the donation.
- Employers may not interfere with or retaliate against donation leave, nor may employers use unlawful employment practices related to such leave.
- Employees may seek private claims for enforcement of these provisions.
- Employers with 25 or more workers at the same location must allow employees to take up to 40 hours of leave each year, but not more than 8 hours in one month, to visit their children's school.
- Covered employees are protected form discharge, demotion or other discrimination related to this leave.
- School visitation covers parents, guardians or grandparents having custody of minor grandchildren.
- Employees must give reasonable notice before taking such leave.
- Employees must use existing vacation leave, personal leave, unpaid leave or compensation time off for purposes of school visits.
- Documentation maybe required as proof that employee participated in school related activities on a certain time and date.
Crime Victim Leave
- An employee who is a victim of a crime or is required to serve on a jury may be entitled to crime victim leave.
- An employee who is a victim of sexual assault or domestic violence may take leave to obtain injunctive relief.
- Advance notice should be given when feasible and certification should be provided to the employer within a reasonable time after absence.
- An employee may use compensatory leave when applicable.
- An employer with more than 24 employees must allow employees who are victims of crime to take additional leave for medical attention, psychological counseling and safety planning. Advance notice should be given when feasible and certification should be provided to the employer within a reasonable time after absence. Compensatory leave may be used when applicable.
- An employee may also take leave to attend a judicial proceeding of an immediate family member who was a victim of a violent or serious felony or a felony relating to theft or embezzlement.
- Immediate family includes spouse, child, siblings, parents and step-relatives. Advanced notice should be given and compensatory leave may be substituted.
Civil Air Patrol
- The California Civil Air Patrol Employment Protection Act requires employers with more than 15 employees to provide at least 10 days of leave per year to volunteer members of the California Wind of the Civil Air Patrol responding to an "emergency operational mission".
- This provision is in addition to other leave benefits required by law.
- Those qualified must be employed at their current employer at least 90 days prior to beginning of leave.
- Employees must give advance notice of leave when possible.
- Employees must be restored to prior position or position equivalent in pay, benefits, and seniority after leave, unless the employee is not restored for reasons unrelated to the exercise of leave rights.
- The law does not require employers to grant leave to employees with Civil Air Patrol who are required to act as first responders for federal, state or local agencies answering the same or simultaneous operational mission.
All Non-State Employers
Paid Family Leave
- Nearly all private sector employees and non-state public sector employees are covered by the State Disability Insurance program (SDI).
- Paid family leave is offered to most workers with the Paid Family Leave program. (PFL)
- PFL is an extension of the SDI program, broadening the concept of "disability" to include "family disabilities".
- PFL and SDI are funded entirely by employees
All California employees who pay into the disability fund are covered. (State workers have a separate disability fund – see below.)
Family Disabilities Covered
- The illness of a family member or new-child bonding is covered.
- Employees are given partial compensation for up to six weeks within 12-month period.
- Employees are eligible to receive a "weekly benefit amount" which is listed in Cal. Unemployment Benefit Code §2655
Employee contributions vary annually depending on fund balance.
- There is no direct cost to employers for implementing PFL.
- It is funded by an increased tax on employee's wages payable to the SDI.
- Both programs are administrated by California's Employment Development Department, which receives and processes applications for leave and sends checks to employees.
There are strict penalties for falsifying certifications of illness and false statements of a need for family leave.
Paid Disability Leave
An employer-funded, Nonindustrial Disability Insurance is available to certain state employees.
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