Family, Medical and Parental Leaves Law Summaries

Family, Medical and Parental Leaves Law Summaries

California, Family, Medical and Parental Leaves Law Summaries

The California Family Rights Act is located in California's Government Code at Title 2, Division 3, Part 2.8, Chapter 6, Article 1, Section 12945.2, and Title 2, Division 5, Part 2, Chapter 10, Article 2, Section 19702.3. Corresponding regulations are located in the California Code of Regulations at Title 2, Division 4, Chapter 2, Subchapter 12.

California also has statutory provisions on pregnancy leave in its fair employment practices law (Government Code, Title 2, Division 3, Part 2.8, Chapter 6, Article 1, Section 12945) (corresponding regulations are located in the California Code of Regulations at Title 2, Division 4, Chapter 2, Subchapter 6A), and the state has statutory pregnancy/paternity/adoption leave provisions for its employees (Government Code, Title 2, Division 5, Part 2.6, Chapter 2.5, Article 11, Section 19991.6). Additionally, there are pregnancy leave provisions specifically for teachers and other employees in education (see Education Code, Sections 44965, 44978, 45193, 87766, 87781, and 88193).

California's school visitation leave law is located in the state's Labor Code at Division 2, Part 1, Chapter 1, Article 1. The full text of the law is available at Employment Practices Guide ¶5-22,550.01 .

There are also provisions requiring employers to permit employees to use accrued sick leave to attend to ill family members (Labor Code, Sec. 233).

The Victims of Domestic Violence Employment Leave Act (Ch. 487 (A. 2357), L. 1999, effective January 1, 2001) is located in the state's Labor Code at Secs. 230 and 230.1.

State employees are entitled to take time off to attend to family crisis situations, including, but not limited to, divorce counseling, family or parenting conflict management, family-care urgent matters and/or emergencies. Also, they are entitled to time off to attend family or school-related activities in which the employee's child is participating, including, but not limited to, plays, graduations, field trips, organized sports events, recitals, Scouts, 4-H, Junior Achievement, and Grange (California Code of Regulations, Title 2, Div. 1, Ch. 3, Subch. 1, Art. 25.5-for full text, see Employment Practices Guide ¶5-22,600.01 et seq. ).

The state has established, within the state disability insurance program, a family temporary disability insurance program to provide up to six weeks of wage replacement benefits to workers who take time off to work to care for a seriously ill child, spouse, parent, domestic partner, or to bond with a new child. The program became operative on January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004 (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7 (Paid Family Leave); enacted by Ch. 901 (S. 1661), L. 2002, and amended by Ch. 797 (S. 727), L. 2003).

Additionally, certain public employees are entitled to a leave of absence to donate organs or bone marrow.

California also has laws relating to the rights of nursing mothers (see ¶5-1400 ).

DEFINITIONS

California Family Rights Act

“Employer” means either of the following (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Sec. 7297.0):

1. any person or individual engaged in any business or enterprise in California who directly employs 50 or more persons within any state, the District of Columbia or any territory or possession of the U.S. to perform services for a wage or salary;

2. the state of California, counties and any other political or civil subdivision of the state and cities, regardless of the number of employees.

See ¶5-3000 for the definition of employer as it relates to the state's pregnancy disability leave provisions under the fair employment practices law/regulations.

“Family care and medical leave” means any of the following (Gov't Code, Sec. 12945.2):

1. leave for reason of the birth of a child of the employee, the placement of a child with an employee for adoption or foster care, or the serious health condition of a child of the employee;

2. leave to care for a parent or a spouse who has a serious health condition;

3. leave because of an employee's own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.

“Family care leave” means either (Cal CodeRegs, Sec. 7297.0):

1. leave of up to a total of 12 workweeks in a 12-month period for the birth of a child of the employee, the placement of a child with an employee in connection with adoption or foster care, and a guarantee of employment, made at the time the leave is granted, in the same or a comparable position upon termination of the leave; or

2. leave of up to a total of 12 workweeks in a 12-month period to care for a child, parent or spouse of the employee who has a serious health condition, and a guarantee of employment, made at the time the leave is granted, in the same or a comparable position upon termination of the leave.

“Medical leave” means leave of up to a total of 12 workweeks in a 12-month period because of an employee's own serious health condition that makes the employee unable to work at all or unable to perform any one or more of the essential functions of the position of that employee. Medical leave generally does not include leave taken for an employee's pregnancy disability (Cal CodeRegs, Sec. 7297.0).

“Eligible employee” means a full or part time employee working in California with more than 12 months (52 weeks) of service with the employer at any time, and who has actually worked for the employer at least 1,250 hours during the 12-month period immediately prior to the date the California Family Rights Act leave or federal FMLA leave is to commence (Cal CodeRegs, Sec. 7297.0).

“Child” means a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, or a child of an employee who stands in loco parentis to that child, who is either under 18 years of age or an adult dependent child (Cal CodeRegs, Sec. 7297.0).

“Serious health condition” means an illness, injury (including on-the-job injuries), impairment, or physical or mental condition of the employee or a child, parent or spouse of the employee that involves either (Cal CodeRegs, Sec. 7297.0):

1. inpatient care in a hospital, hospice or residential health care facility; or

2. continuing treatment or continuing supervision by a health care provider, as detailed in the federal FMLA and its implementing regulations.

“Certification” means a written communication from the health care provider of the child, parent, spouse, or employee with a serious health condition to the employer of the employee requesting family care leave to care for the employee's child, parent or spouse or a medical leave for the employee's own serious health condition (Cal CodeRegs, Sec. 7297.0).

Other definitions

For purposes of the sick leave provisions of the state's Labor Code, “employer” means any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, and municipalities (Labor Code, Sec. 233(b), as amended by Ch. 893 (A. 25), L. 2001).

For purposes of the sick leave provisions of the state's Labor Code, “sick leave” means accrued increments of compensated leave provided by an employer to an employee as a benefit of the employment for use by the employee during an absence from the employment for any of the following reasons (Labor Code, Sec. 233(b), as amended by Ch. 893 (A. 25), L. 2001):

1. the employee is physically or mentally unable to perform his or her duties due to illness, injury or a medical condition of the employee;

2. the absence is for the purpose of obtaining professional diagnosis or treatment for a medical condition of the employee;

3. the absence is for other medical reasons of the employee, such as pregnancy or obtaining a physical examination.

“Sick leave” does not include any benefit provided under an employee welfare benefit plan subject to ERISA, and does not include any insurance benefit, workers' comp benefit, unemployment compensation disability benefit, or benefit not payable from the employer's general assets (Labor Code, Sec. 233(b), as amended by Ch. 893 (A. 25), L. 2001).

COVERAGE

The California Family Rights Act covers private employers of 50 or more employees and public employers.

California's fair employment practices law, which contains provisions on pregnancy leave, covers persons employing five or more persons and the state. There are also statutory provisions on pregnancy/paternity/adoption leave for state employees, as well as provisions that apply to pregnancy leave for certain school employees (see Education Code, Sections 44965, 44978, 45193, 87766, 87781, and 88193).

California's school visitation leave law covers employers who employ 25 or more employees working at the same location.

EXCEPTIONS

California Family Rights Act

Family members.- In any case in which both parents entitled to family care and medical leave are employed by the same employer, the employer is not required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents family care and medical leave totaling more than 12 workweeks in any 12-month period (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Sec. 7297.1).

Small employers.- It is not an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs less than 50 employees within 75 miles of the worksite where that employee is employed (Gov't Code, Sec. 12945.2).

Key employees.- A refusal to reinstate a “key employee” to the employee's same position or to a comparable position is justified if the employer shows, by a preponderance of the evidence, that all of the following conditions exist (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Sec. 7297.2):

1. The employee requesting the CFRA leave is a salaried employee, and

2. The employee requesting the leave is among the highest paid 10 percent of the employer's employees who are employed within 75 miles of the worksite at which that employee is employed at the time of the leave request, and

3. The refusal to reinstate the employee is necessary because the employee's reinstatement will cause substantial and grievous economic injury to the operations of the employer, and

4. The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines that the refusal is necessary under (3) above, and

5. In any case in which the leave has already commenced, the employer must give the employee a reasonable opportunity to return to work following the notice prescribed in (4) above.

Pension and retirement plans.- For purposes of pension and retirement plans, an employer is not required to make plan payments for an employee during the leave period, and the leave period is not required to be counted for purposes of time accrued under the plan (Gov't Code, Sec. 12945.2).

Bona fide occupational qualifications.- Bona fide occupational qualifications and pregnancy leave are discussed below.

PROCEDURES

California Family Rights Act

Certification.- An employer may require that an employee's request for leave to care for a child, a spouse, or a parent who has a serious health condition be supported by certification issued by the health care provider of the individual requiring care. If additional leave is required, the employer may require the employee to obtain recertification (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Sec. 7297.4).

For family care leave for the employee's child, parent or spouse, certification need not identify the serious health condition involved, but must contain (Cal CodeRegs, Sec. 7297.0):

1. the date, if known, on which the serious health condition commenced;

2. the probable duration of the condition;

3. an estimate of the amount of time that the health care provider believes the employee needs to care for the child, parent or spouse; and

4. a statement that the serious health condition warrants the participation of the employee to provide care during a period of treatment or supervision of the child, parent or spouse.

An employer may require that an employee's request for leave because of the employee's own serious health condition be supported by a certification issued by the health care provider. Subsequent recertification may be required if additional leave is required (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Sec. 7297.4).

For medical leave for the employee's own serious health condition, certification need not, but may at the employee's option identify the serious health condition involved. It must contain (Cal CodeRegs, Sec. 7297.0):

1. the date, if known, on which the serious health condition commenced;

2. the probable duration of the condition; and

3. a statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform any one or more of the essential functions of the employee's position.

Time limit for providing certification.- An employer may require that the employee provide any certification within 15 calendar days of the employer's request for such certification, unless it is not practicable for the employee to do so despite the employee's good faith efforts. This means that, in some cases, the leave may begin before the employer receives the certification (Cal CodeRegs, Sec. 7297.4).

Certification form.- For leave involving serious health conditions, an employer may utilize the “Certification of Health Care Provider” form supplied by the Fair Employment and Housing Commission or an equivalent form. Employers may also use any other certification form, such as the U.S. Dept. of Labor Form WH-380 ( “Certification of Health Care Provider/Family and Medical Leave Act of 1993”), provided that the health care provider does not disclose the underlying diagnosis of the serious health condition without the consent of the patient (Cal CodeRegs, Sec. 7297.11).

Second/third opinions.- If the employer has reason to doubt the validity of the certification provided, it may require, at its own expense, that the employee obtain a second opinion from a health care provider designated or approved by the employer, but not employed on a regular basis by the employer. The employer may not ask the employee to provide additional information beyond that allowed by the state's regulations, and the employer is responsible for complying with all applicable law regarding the confidentiality of any medical information received.

If the second opinion differs from the opinion in the original certification, the employer may require, at its own expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by the employer and the employee, concerning the information certified. The opinion of the third health care provider is final and binding. (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Sec. 7297.4).

The employer must provide the employee with a copy of the second and third medical opinions, where applicable, without cost, upon the request of the employee (Cal CodeRegs, Sec. 7297.4).

Return-to-work.- As a condition of an employee's return from leave taken because of the employee's own serious health condition, the employer may have a uniformly applied practice or policy that requires the employee to obtain certification from his or her health care provider that the employee is able to resume work (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Sec. 7297.4).

Interaction with other law.- The 12-month period during which 12 workweeks of family care and medical leave may be taken under state law runs concurrently with the 12-month period under the federal FMLA, except for leave taken under the federal FMLA for disability on account of pregnancy, childbirth, or related medical conditions, and will begin the date leave taken under the federal FMLA begins. An employer may choose any of the methods allowed in the federal FMLA regulations for determining the “12-month period” in which the 12 weeks of leave entitlement occurs. The employer must, however, apply the chosen method consistently and uniformly to all employees (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Sec. 7297.3).

Interaction between family care and medical leave (California Family Rights Act) and vacation/sick leave.- An employee taking family care and medical leave may elect, or an employer may require the employee, to substitute for family care and medical leave any of the employee's accrued vacation leave or other accrued time off during this period (or any other paid or unpaid time off negotiated with the employer). If an employee takes a leave because of the employee's own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the leave. However, an employee may not use sick leave during a period of leave in connection with the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and the employee (Gov't Code, Sec. 12945.2).

Interaction between CFRA leave and pregnancy disability leave.- The right to take a California Family Rights Act (CFRA) leave under Gov't Code Sec. 12945.2 is separate and distinct from the right to take a pregnancy disability leave under Gov't Code Sec. 12945 (Cal CodeRegs, Sec. 7297.6).

An employee's own disability due to pregnancy, childbirth or related medical conditions is not included as a “serious health condition” under CFRA. Any period of incapacity or treatment due to pregnancy, including prenatal care, is included as a “serious health condition” under the federal FMLA (Cal CodeRegs, Sec. 7297.6).

At the end of the employee's period(s) of pregnancy disability, or at the end of four months' pregnancy disability leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks for reason of the birth of her child, if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition in order for the employee to take CFRA leave. There is also no requirement that the employee no longer be disabled by her pregnancy, childbirth or related medical condition before taking CFRA leave for reason of the birth of her child (Cal CodeRegs, Sec. 7297.6).

Where an employee has utilized four months of pregnancy disability leave prior to the birth of her child, and her health care provider determines that a continuation of the leave is medically necessary, an employer may, but is not required to, allow an eligible employee to utilize CFRA leave prior to the birth of her child. No employer may, however, be required to provide more CFRA leave than the amount to which the employee is otherwise entitled (Cal CodeRegs, Sec. 7297.6).

The maximum possible combined leave entitlement for both pregnancy disability leave (under the federal FMLA and California Gov't Code Sec. 12945 and CFRA leave for reason of the birth of the child (under the regulations implementing the CFRA) is four months and 12 workweeks. This assumes that the employee is disabled by pregnancy, childbirth or related medical conditions for four months and then requests, and is eligible for, a 12-week CFRA leave for reason of the birth of her child (Cal CodeRegs, Sec. 7297.6).

Workers' compensation

No leave of absence taken for workers' comp injuries by a peace officer, or by a city, county, or district firefighter, will be deemed to constitute family care and medical leave as defined in Gov't Code, Sec. 12945.2 (see DEFINITIONS above), or to reduce the time authorized for family care and medical leave under that section of the Government Code (Labor Code, Sec. 4850, as amended by Ch. 791 (A. 1374), L. 2001).

Fair employment practices law/regulations

Relationship between pregnancy leave and FMLA leave.- If an employer is a covered employer and the employee is eligible for leave under the federal Family Care and Medical Leave Act, the employer may be able to count the employee's pregnancy disability leave under the California fair employment practices law and regulations, up to a maximum of 12 weeks, against her FMLA leave entitlement (Cal CodeRegs, Sec. 7297.12).

Any period of incapacity or treatment due to pregnancy, including prenatal care, is included as a “serious health condition ” under FMLA (Cal CodeRegs, Sec. 7297.12).

During any part of the pregnancy disability leave that is also FMLA leave, if the employer provides health benefits under any “group health plan,” the employer may have an FMLA obligation to continue providing such benefits (Cal CodeRegs, Sec. 7297.12).

Relationship between CFRA and pregnancy leaves.- See “California Family Rights Act” above.

WHAT THE EMPLOYER MUST DO

California Family Rights Act

Eligibility.- It is an unlawful employment practice for an employer to refuse to grant a reasonable request by an 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 unpaid family care and medical leave. A request to take a California Family Rights Act (CFRA) leave is reasonable if it complies with any applicable notice requirements and if it is accompanied, where required, by a certification (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Secs. 7297.1 and 7297.3).

Once an employee meets the two eligibility criteria described above and takes a leave for a qualifying event, the employee does not have to requalify, in terms of the number of hours worked, in order to take additional leave for the same qualifying event during the employee's 12-month period (Cal CodeRegs, Sec. 7297.0).

For an employee who takes a pregnancy disability leave that is also a federal FMLA leave, and who then wants to take CFRA leave for reason of the birth of her child immediately after her pregnancy disability leave, the 12-month period during which she must have worked 1,250 hours is that period immediately preceding her first day of FMLA leave based on her pregnancy, not the first day of the subsequent CFRA leave for reason of the birth of her child (Cal CodeRegs, Sec. 7297.0).

In order to be eligible, the employee must also work for an employer who maintains on the payroll, as of the date the employee gives notice of the need for leave, at least 50 part or full time employees within 75 miles (measured in surface miles, using surface transportation) of the worksite where the employee requesting the leave is employed. Once the employee meets this eligibility criterion and takes a leave for a qualifying event, the employer may not cut short the leave or deny any subsequent leave taken for the same qualifying event during the employee's 12-month leave period, even if the number of employees within the relevant 75-mile radius falls below 50. In such cases, however, the employee would not be eligible for any subsequent leave requested for a different qualifying event (Cal CodeRegs, Sec. 7297.0).

Payment for/during leave.- An employer is not required to pay an employee during a California Family Rights Act (CFRA) leave except (Cal CodeRegs, Sec. 7297.5):

1. An employee may elect to use any accrued vacation time or other paid accrued time off, including undifferentiated paid time off (“PTO ”), other than accrued sick leave, that the employee is otherwise eligible to take during the otherwise unpaid portion of the CFRA leave.

2. Only if the employee asks for leave for what would be a CFRA-qualifying event may an employer require the employee to use any accrued vacation time or other paid accrued time off (including “PTO ” time), other than accrued sick leave, that the employee is otherwise eligible to take during the otherwise unpaid portion of the CFRA leave.

3. An employer may require the employee to use, or an employee may elect to use, any accrued sick leave that the employee is otherwise eligible to take during the otherwise unpaid portion of a CFRA leave for the employee's own serious health condition or any other reason if mutually agreed to between the employer and employee.

4. An employer and employee may negotiate for the employee's use of any additional paid or unpaid time off to substitute for the CFRA leave provided by this section.

Reasons for leave.- An employer must allow eligible employees to take family care and medical leave for the following reasons (Gov't Code, Sec. 12945.2):

1. leave for reason of the birth of a child of the employee, the placement of a child with an employee for adoption or foster care, or the serious health condition of a child of the employee;

2. leave to care for a parent or a spouse who has a serious health condition;

3. leave because of an employee's own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.

Response to request for leave.- An employer must respond to a leave request as soon as practicable and in any event no later than 10 calendar days after receiving the request. The employer must attempt to respond to the leave request before the date the leave is due to begin. Once given, approval is deemed retroactive to the date of the first day of the leave (Cal CodeRegs, Sec. 7297.4).

Length of leave.- The basic requirement for length of leave is up to a total of 12 workweeks in any 12-month period for unpaid family care and medical leave (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Secs. 7297.1 and 7297.3).

“Twelve workweeks” means the equivalent of 12 of the employee's normally scheduled workweeks. For eligible employees who work more or less than five days a week, or who work on alternative work schedules, the number of working days that constitutes “twelve weeks ” is calculated on a pro rata or proportional basis (Cal CodeRegs, Sec. 7297.3).

If an employee takes leave on an intermittent or reduced work schedule, only the amount of leave actually taken may be counted toward the twelve weeks of leave to which the employee is entitled (Cal CodeRegs, Sec. 7297.3).

If a holiday falls within a week taken as CFRA leave, the week is nevertheless counted as a week of CFRA leave. If, however, the employer's business activity has temporarily ceased for some reason and employees generally are not expected to report for work for one or more weeks, the days the employer's activities have ceased do not count against the employee's CFRA entitlement (Cal CodeRegs, Sec. 7297.3).

CFRA leave taken for the reason of the birth, adoption, or foster care placement of a child of the employee does not have to be taken in one continuous period of time. Any leave(s) taken must be concluded within one year of the birth or placement of the child with the employee in connection with the adoption or foster care of the child by the employee. The basic minimum duration of the leave is two weeks. However, an employer must grant a request for a CFRA leave of less than two weeks' duration on any two occasions (Cal CodeRegs, Sec. 7297.3).

Where CFRA leave is taken for a serious health condition of the employee's child, leave may be taken intermittently or on a reduced work schedule when medically necessary, as determined by the health care provider of the person with the serious health condition. An employer may limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave (Cal CodeRegs, Sec. 7297.3).

Transfers.- If an employee needs intermittent leave or leave on a reduced work schedule that is foreseeable based on planned medical treatment for the employee or a family member, the employer may require the employee to transfer temporarily to an available alternative position. This alternative position must have the equivalent rate of pay and benefits, the employee must be qualified for the position, and it must better accommodate recurring periods of leave than the employee's regular job. It does not have to have equivalent duties. Transfer to an alternative position may include altering an existing job to accommodate better the employee's need for intermittent leave or a reduced work schedule (Cal CodeRegs, Sec. 7297.3).

Pregnancy disability transfers are addressed at ¶5-3000 .

Benefits.- During any period that an eligible employee takes family care and medical leave or takes leave that qualifies as leave taken under the federal FMLA, the employer must maintain and pay for coverage under a group health plan for the duration of the leave, not to exceed 12 workweeks in a 12-month period, beginning on the date leave taken under the federal FMLA begins, at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Sec. 7297.5).

An employer may recover the premium that it paid for maintaining group health care coverage during any unpaid part of California Family Rights Act (CFRA) leave if both of the following conditions occur (Cal CodeRegs, Sec. 7297.5):

1. The employee fails to return from leave after the period of leave to which the employee is entitled has expired. An employee is deemed to have “failed to return from leave” if the employee works less than 30 days after returning from CFRA leave.

2. The employee's failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to CFRA leave, or other circumstances beyond the control of the employee.

During a period of CFRA leave, an employee is entitled to accrual of seniority and to participate in health plans for any additional period of leave not covered above, and also in any employee benefit plans, including life, short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as would apply to any other leave granted by the employer for any reason other than CFRA leave (Cal CodeRegs, Sec. 7297.5).

If an employer has no policy, practice or collective bargaining agreement that requires or authorizes any other type of unpaid personal or disability leave or if the employer's other unpaid personal or disability leaves do not allow for the continuation of benefits during these leaves, an employee taking CFRA leave is entitled to continue to participate in the employer's health plans, pension and retirement plans, supplemental unemployment benefit plans or any other health and welfare employee benefit plan, in accordance with the terms of those plans, during the period of CFRA leave (Cal CodeRegs, Sec. 7297.5).

An employee retains employee status during the period of CFRA leave. Such leave does not constitute a break in service for purposes of longevity and/or seniority under any collective bargaining agreement or under any employee benefit plan. Benefits must be resumed upon the employee's reinstatement in the same manner and at the same levels as provided when the leave began, without any new qualification period, physical exam, etc. (Cal CodeRegs, Sec. 7297.5).

Reinstatement.- Upon granting California Family Rights Act (CFRA) leave, an employer must guarantee to reinstate the employee to the same or a comparable position, and must provide the guarantee in writing upon request of the employee. It is an unlawful employment practice for an employer, after granting a requested CFRA leave, to refuse to honor its guarantee of reinstatement to the same or a comparable position at the end of the leave (Cal CodeRegs, Sec. 7297.2).

Where a definite date of reinstatement has been agreed upon at the beginning of the leave, a refusal to reinstate is established if the Department of Fair Employment and Housing or employee proves, by a preponderance of the evidence, that the leave was granted by the employer and that the employer failed to reinstate the employee to the same or a comparable position by the date agreed upon (Cal CodeRegs, Sec. 7297.2).

If the reinstatement date differs from the employer's and employee's original agreement, a refusal to reinstate is established if the Department of Fair Employment and Housing or employee proves, by a preponderance of the evidence, that the employer failed to reinstate the employee to the same or a comparable position within two business days, where feasible, after the employee notifies the employer of the employee's readiness to return, as required by the federal FMLA regulations (Cal CodeRegs, Sec. 7297.2).

An employee has no greater right to reinstatement than if the employee had been continuously employed during the CFRA leave period. An employer has the burden of proving, by a preponderance of the evidence, that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny reinstatement (Cal CodeRegs, Sec. 7297.2).

Layoffs.- If an employee is laid off during the course of taking CFRA leave and employment is terminated, the employer's responsibility to continue CFRA leave, maintain group health plan benefits and reinstate the employee ceases at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise (Cal CodeRegs, Sec. 7297.2).

Key employees.- A refusal to reinstate a “key employee” to the employee's same position or to a comparable position is justified if the employer shows, by a preponderance of the evidence, that all of the following conditions exist (Cal CodeRegs, Sec. 7297.2):

1. The employee requesting the CFRA leave is a salaried employee, and

2. The employee requesting the leave is among the highest paid 10 percent of the employer's employees who are employed within 75 miles of the worksite at which that employee is employed at the time of the leave request, and

3. The refusal to reinstate the employee is necessary because the employee's reinstatement will cause substantial and grievous economic injury to the operations of the employer, and

4. The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines that the refusal is necessary under (3) above, and

5. In any case in which the leave has already commenced, the employer must give the employee a reasonable opportunity to return to work following the notice prescribed in (4) above.

Teachers.- California Family Rights Act leave, including intermittent leave and/or reduced work schedules, is available to instructional employees of educational establishments and institutions under the same conditions as apply to all other eligible employees (Cal CodeRegs, Sec. 7297.3).

Retaliation.- Employers may not refuse to hire, or discharge, fine, suspend, expel, or discriminate against, an individual because of any of the following (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Sec. 7297.7):

1. an individual's exercise of the right to family care and medical leave.

2. an individual's giving information or testimony as to the individual's own family care and medical leave, or another person's family care and medical leave, in any inquiry or proceeding related to family care and medical leave rights.

Public employers.- A public employer may not refuse to hire, may not discharge, suspend, expel or discriminate against an employee because the employee (Gov't Code, Sec. 19702.3):

1. exercises the right to family care leave; or

2. gives information or testimony regarding the individual's family care leave or another person's family care leave in any inquiry or proceeding related to family care leave rights.

Case law.- In its first ruling on the Moore-Brown-Roberti Family Rights Act (or “CFRA,” the state's family and medical leave act), the California Supreme Court held that the failure to seek a “tie-breaking” determination from a health care provider jointly chosen by the parties as to whether an employee was entitled to medical leave did not bar an employer from later claiming the employee did not suffer from a serious health condition and was capable of performing her job. The employer was not required to invoke this dispute-resolution mechanism provided by the statute, the high court held. Rather, the statute provides the employer “a choice of obtaining or not obtaining a binding decision from a third health care provider.” The high court also ruled that an employee's working part-time in a similar job for another employer during the period in which she sought medical leave does not conclusively establish that she was capable of performing her regular job. The part-time job “is evidence of ability to do similar work for the original employer from whom the employee has sought medical leave,” the court held. “The relevant inquiry is whether a serious health condition made her unable to do her job at defendant's hospital, not her ability to do her essential job functions ‘generally.’ ”Because conflicting evidence created a disputed issue of material fact on this point, the employee was afforded the chance to convince a jury that her part-time job was quite different than the full-time position that she alleged she was incapable of performing (Lonicki v Sutter Health Central , CalSCt, April 7, 2008).

Fair employment practices law-pregnancy leave

Confidentiality.- An employer is responsible for complying with all applicable law regarding the confidentiality of any medical information requested (Cal CodeRegs, Sec. 7291.10). Note: Any provision of state law concerning personal medical information that is determined by the Office of HIPAA Implementation to be preempted by HIPAA shall not be applicable to the extent of the preemption. The remainder of the provisions of state law concerning personal medical information shall remain in full force and effect (Health and Safety Code, Sec. 130311.5, as added by Ch. 489 (S. 1914), L. 2001, effective from January 1, 2003, until January 1, 2005).

Unlawful employment practices.- It is an unlawful employment practice, unless based upon a bona fide occupational qualification, for any employer to refuse to allow a female employee affected by pregnancy, childbirth, or related medical conditions either (Gov't Code, Sec. 12945, as amended by Ch. 591 (S. 1670), L. 1999, effective January 1, 2000, and Cal CodeRegs, Secs. 7291.5 and 7291.8):

1. To receive the same benefits or privileges of employment granted by that employer to other persons not so affected who are similar in their ability or inability to work, including to take disability or sick leave or any other accrued leave that is made available by the employer to temporarily disabled employees. However, no employer is required to provide a female employee disability leave on account of normal pregnancy, childbirth, or related medical condition for a period exceeding six weeks.

2. To take a leave on account of pregnancy for a reasonable period of time not to exceed four months. The employee may utilize any accrued vacation leave during this period of time. Reasonable period of time means that period during which the female employee is disabled on account of pregnancy, childbirth, or related medical conditions.

Eligibility.- There is no length of service requirement before an employee disabled by pregnancy is entitled by a pregnancy disability leave (Cal CodeRegs, Sec. 7291.7).

Length of leave.- All employers must provide a leave of up to four months, as needed, for the period(s) of time a woman is actually disabled by pregnancy even if an employer has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees (Cal CodeRegs, Sec. 7291.7).

A “four month leave” means the number of days the employee would normally work within four months. For a full time employee who works five eight-hour days per week, “four months” means 88 working and/or paid eight-hour days of leave entitlement, based on an average of 22 working days per month for four months (Cal CodeRegs, Secs. 7291.2 and 7291.7).

For employees who work more or less than five days a week, or who work on alternative work schedules, the number of working days that constitutes “four months” is calculated on a pro rata or proportional basis (Cal CodeRegs, Sec. 7291.7).

If an employee takes leave on an intermittent leave or a reduced work schedule, only the amount of leave actually taken may be counted toward the four months of leave to which the employee is entitled (Cal CodeRegs, Sec. 7291.7).

If a holiday falls within a week taken as a pregnancy disability leave, the week is nevertheless counted as a week of pregnancy disability leave. If, however, the employer's business activity has temporarily ceased for some reason and employees generally are not expected to report for work for one or more weeks, the days the employer's activities have ceased do not count against the employee's pregnancy disability leave entitlement (Cal CodeRegs, Sec. 7291.7).

Leave may be taken intermittently or on a reduced work schedule when medically advisable, as determined by the health care provider of the employee. An employer may limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave (Cal CodeRegs, Sec. 7291.7).

More generous policy.- If an employer has a more generous leave policy for other temporary disabilities than is required for pregnancy disability leave (four months), the employer must provide such leave to employees temporarily disabled by pregnancy (Cal CodeRegs, Sec. 7291.7).

Reasonable request.- A request to take a pregnancy disability leave is reasonable if it complies with any applicable notice requirements, and if it is accompanied, where required, by a certification (Cal CodeRegs, Sec. 7291.8).

Response to request for leave.- An employer must respond to a leave request as soon as practicable and in any event no later than 10 calendar days after receiving the request. The employer must attempt to respond to the leave request before the date the leave is due to begin. Once given, approval is deemed retroactive to the date of the first day of the leave (Cal CodeRegs, Sec. 7291.10).

Medical certification.- As a condition of granting a pregnancy disability leave, an employer may require medical certification if the employer requires certification of other similarly situated employees. Upon expiration of the time period that the health care provider originally estimated that the employee needed, the employer may require the employee to obtain recertification if additional time is requested if the employer has similar requirements for other similarly situated employees (Cal CodeRegs, Sec. 7291.10).

An employer may not ask an employee to provide additional information beyond that allowed by the California regulations, and the employer is responsible for complying with all applicable law regarding the confidentiality of any medical information requested (Cal CodeRegs, Sec. 7291.10). Note: Any provision of state law concerning personal medical information that is determined by the Office of HIPAA Implementation to be preempted by HIPAA shall not be applicable to the extent of the preemption. The remainder of the provisions of state law concerning personal medical information shall remain in full force and effect (Health and Safety Code, Sec. 130311.5, as amended by Ch. 141 (A. 2313), L. 2003, effective until January 1, 2008).

The certification indicating disability necessitating a leave should contain the following (Cal CodeRegs, Sec. 7291.2):

1. the date on which the woman became disabled by pregnancy;

2. the probable duration of the period or periods of disability; and

3. an explanatory statement that, due to the disability, the employee is unable to work at all or is unable to perform any one or more of the essential functions of her position without undue risk to herself, the successful completion of her pregnancy, or to other persons.

Payment during leave.- An employer is not required to pay an employee during a pregnancy disability leave, except that a non-Title VII employer (see ¶5-3000 ) with five to 14 employees must pay an employee disabled by pregnancy only six weeks of accrued, paid leave for a normal pregnancy regardless of its paid leave policy for other disabled employees (Cal CodeRegs, Sec. 7291.11).

Accrued time off.- An employer may require an employee to use, or an employee may elect to use, any accrued sick leave during the otherwise unpaid portion of her pregnancy disability leave. Also, an employee may elect, at her option, to use any vacation time or other accrued personal time off that the employee is otherwise eligible to take during the otherwise unpaid portion of her pregnancy disability leave (Cal CodeRegs, Sec. 7291.11).

Benefits.- During a period of pregnancy disability leave, an employee is entitled to accrual of seniority and to participate in health plans, employee benefit plans, including short-term and long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as would apply to any other unpaid disability leave granted by the employer for any reason other than a pregnancy disability (Cal CodeRegs, Sec. 7291.11).

If the employer's policy allows seniority to accrue when employees are on paid leave and/or unpaid leave, then seniority will accrue during any part of a paid and/or unpaid pregnancy disability leave, consistent with the employer's policy. An employee returning from a pregnancy disability leave will return with no less seniority than the employee had when the leave commenced for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits (Cal CodeRegs, Sec. 7291.11).

Employee status.- An employee retains employee status during the period of pregnancy disability leave. The leave does not constitute a break in service for purposes of longevity/seniority under any collective bargaining agreement or employee benefit plan. Benefits must be resumed upon the employee's reinstatement in the same manner and at the same levels as provided when the leave began, without any new qualification period, physical exam, etc. (Cal CodeRegs, Sec. 7291.11).

Release to return to work.- As a condition of an employee's return from pregnancy disability leave, an employer may require that the employee obtain a release to “return to work” from her health care provider stating that she is able to resume her original job duties only if the employer has a uniformly applied practice or policy of requiring such releases from other similarly situated employees returning to work after a non-pregnancy related disability leave (Cal CodeRegs, Sec. 7291.10).

Reinstatement.- Upon granting pregnancy disability leave, an employer must guarantee to reinstate the employee to the same position, or a comparable position, and must provide the guarantee in writing upon request of the employee. It is an unlawful employment practice for an employer, after granting a requested pregnancy disability leave, to refuse to honor its guarantee of reinstatement unless the refusal is justified as outlined below (Cal CodeRegs, Sec. 7291.9).

Where a definite date of reinstatement has been agreed upon at the beginning of the leave, a refusal to reinstate is established if the Department of Fair Employment and Housing or employee proves, by a preponderance of the evidence, that the leave was granted by the employer and that the employer failed to reinstate the employee by the date agreed upon to the same or a comparable position (Cal CodeRegs, Sec. 7291.9).

If the reinstatement date differs from the original agreement between the employer and employee, a refusal to reinstate is established if the Department of Fair Employment and Housing or employee proves, by a preponderance of the evidence, that the employer failed to reinstate the employee within two business days, where feasible, after the employee notified the employer of her readiness to return to work (Cal CodeRegs, Sec. 7291.9).

An employee has no greater right to reinstatement to the same position or to other benefits and conditions of employment than if she had been continuously employed in the position during the pregnancy disability leave period. A refusal to reinstate the employee to her same position or duties is justified if the employer proves, by a preponderance of the evidence, either of the following (Cal CodeRegs, Sec. 7291.9):

1. that the employee would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business purposes unrelated to the employee taking a pregnancy disability leave.

2. that each means of preserving the job or duties for the employee would substantially undermine the employer's ability to operate the business safely and efficiently.

An employee has no greater right to reinstatement to a comparable position or to other benefits and conditions of employment than an employee who has been continuously employed in another position that is being eliminated. If the employer is excused from reinstating the employee to her same position, or with the same duties, a refusal to reinstate her to a comparable position is justified if the employer proves, by a preponderance of the evidence, either of the following (Cal CodeRegs, Sec. 7291.9):

1. that there is no comparable position available.

2. for an employer whose employee takes a pregnancy disability leave that does not qualify as a federal FMLA leave, that a comparable position is available, but filling the available position with the returning employee would substantially undermine the employer's ability to operate the business safely and efficiently.

If an employee disabled by pregnancy has taken a pregnancy disability leave for longer than four months, an employer must treat the employee the same regarding reinstatement rights as it treats any other similarly situated employee who has taken a similar length disability leave (Cal CodeRegs, Sec. 7291.9).

At the expiration of a pregnancy disability leave, if an employee takes a California Family Rights Act (CFRA) leave for reason of the birth of her child, the employee's right to reinstatement to her job is governed by CFRA and not the pregnancy disability leave provisions outlined above. Under CFRA, an employer may reinstate an employee either to her same or a comparable job (Cal CodeRegs, Sec. 7291.9).

Retaliation.- It is an unlawful employment practice for any person to discharge, fine, suspend, expel, punish, refuse to hire, or otherwise discriminate against any individual because that individual has exercised her right to take a pregnancy disability leave and/or has given information or testimony regarding her pregnancy disability leave in any related inquiry or proceeding (Cal CodeRegs, Sec. 7291.14).

State employees.- An appointing power must grant a leave of absence without pay for the purposes of pregnancy, childbirth or the recovery therefrom for a period as determined by the employee not exceeding one year to any permanent female employee under the jurisdiction of the appointing power. When the employee has notified the appointing power as to the period of the leave of absence required, any change in the length of the period of leave will not be effective unless approved by the appointing power. If these provisions are in conflict with the provisions of a memorandum of understanding between the Governor and a recognized employee organization, the memorandum is controlling without further legislative action, but if the memorandum requires the expenditure of funds, the provisions of the memorandum will not become effective unless approved by the legislature in the annual Budget Act (Gov't Code, Sec. 19991.6).

For managerial employees, confidential employees, supervisory employees, employees of the Department of Personnel Administration, professional employees of the Department of Finance engaged in technical or analytical state budget preparation other than the auditing staff, professional employees in the Personnel/Payroll Services Division of the Controller's office engaged in technical or analytical duties in support of the state's personnel and payroll systems other than the training staff, employees of the Legislative Counsel Bureau, employees of the Bureau of State Audits, employees of the board, conciliators employed by the State Conciliation Service within the Department of Industrial Relations, and intermittent athletic inspectors who are employees of the State Athletic Commission, the following shall apply (Gov't Code, Sec. 19991.6):

1. An appointing power must grant a female permanent employee's request for a leave of absence without pay for the purposes of pregnancy, childbirth, or the recovery therefrom, for a period not to exceed one year. When the employee has notified the appointing power as to the period of the leave of absence required, any change in the length of the period of leave will not be effective unless approved by the appointing power.

2. An appointing power must grant the request of a male spouse who is a permanent employee or a male parent who is a permanent employee for a leave of absence without pay for a period not to exceed one year to care for his newborn child (paternity leave). When the employee has notified the appointing power as to the period of the leave of absence required, any change in the length of the period of leave will not be effective unless approved by the appointing power.

3. An appointing power may grant a permanent employee's request for a leave of absence without pay for the adoption of a child for a period not to exceed one year. The employee must provide substantiation to support the employee's request for adoption leave. When the employee has notified the appointing power as to the period of the leave of absence required, any change in the length of the period of leave will not be effective unless approved by the appointing power.

Family Temporary Disability Insurance (Paid Family Leave) program

See also ¶5-1700 .

The purpose of the family temporary disability insurance program is to provide, within the state disability insurance program, up to six weeks of wage replacement benefits to workers who take time off work to care for a seriously ill child, spouse, parent, domestic partner, or to bond with a new child. The program shall not be construed to abridge the rights and responsibilities conveyed under the CFRA or pregnancy disability leave (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3301(a), as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

An individual's “weekly benefit amount” shall be the amount provided in Sec. 2655 of the Unemployment Insurance Code. An individual is eligible to receive family temporary disability insurance benefits equal to one-seventh of his or her weekly benefit amount for each full day during which he or she is unable to work due to caring for a seriously ill or injured family member or bonding with a minor child within one year of the birth or placement of the child in connection with foster care or adoption (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3301(b), as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

The maximum amount payable to an individual during any disability benefit period for family temporary disability insurance shall be six times his or her “weekly benefit amount,” but in no case shall the total amount of benefits payable be more than the total wages paid to the individual during his or her disability base period. If the benefit is not a multiple of one dollar, it shall be computed to the next higher multiple of one dollar (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3301(c), as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

No more than six weeks of family temporary disability insurance benefits shall be paid within any 12-month period (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3301(d), as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

An individual shall file a claim for family temporary disability insurance benefits not later than the 41st consecutive day following the first compensable day with respect to which the claim is made for benefits, which time shall be extended by the department upon a showing of good cause. If a first claim is not complete, the claim form shall be returned to the claimant for completion and it shall be completed and returned not later than the 10th consecutive day after the date it was mailed by the department to the claimant, except that such time shall be extended by the department upon a showing of good cause (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3301(e), as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

An individual shall be deemed eligible for family temporary disability insurance benefits equal to one-seventh of his or her weekly benefit amount on any day in which he or she is unable to perform his or her regular or customary work because he or she is bonding with a minor child during the first year after the birth or placement of the child in connection with foster care or adoption or caring for a seriously ill child, parent, spouse, or domestic partner, only if the director finds all of the following (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3303, as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004):

1. The individual has made a claim for temporary disability benefits as required by authorized regulations.

2. The individual has been unable to perform his or her regular or customary work for a seven-day waiting period during each disability benefit period, with respect to which waiting period no family temporary disability insurance benefits are payable.

3. The individual has filed a certificate, as required by Secs. 2708 and 2709.

An individual is not eligible for family temporary disability insurance benefits with respect to any day that any of the following apply (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3303.1(a), as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004):

1. He or she has received unemployment compensation benefits under Pt. 1 (commencing with Sec. 100) or under an unemployment compensation law of any other state or of the federal government.

2. He or she has received, or is entitled to receive, “other benefits” in the form of cash benefits as defined in Sec. 2629.

3. He or she has received, or is entitled to receive, state disability insurance benefits under Pt. 2 (commencing with Sec. 2601) or under a disability insurance act of any other state.

4. Another family member is ready, willing, and able and available for the same period of time in a day that the individual is providing the required care.

An individual who is entitled to leave under the federal FMLA and the CFRA must take family temporary disability insurance (FTDI) leave concurrent with leave taken under the FMLA and CFRA (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3303.1(b), as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

As a condition of an employee's initial receipt of FTDI benefits during any 12-month period in which an employee is eligible for these benefits, an employer may require an employee to take up to two weeks of earned but unused vacation leave prior to the employee's initial receipt of these benefits. If an employer so requires an employee to take vacation leave, that portion of the vacation leave that does not exceed one week shall be applied to the waiting period required under Sec. 3303(b) above. This subdivision may not be construed in a manner that relieves an employer of any duty of collective bargaining the employer may have with respect to the subject matter of this subdivision (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3303.1(c), as amended by Ch. 797 (S. 727, L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

Eligible workers shall receive benefits in accordance with provisions established under this division (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3304, as added by Ch. 901 (S. 1661), L. 2002, operative January 1, 2004, except that benefits shall be payable for periods of FTDI leave commencing on or after July 1, 2004).

If the director finds that any individual falsely certifies the medical condition of any person in order to obtain FTDI benefits, with the intent to defraud, whether for the maker or for any other person, the director shall assess a penalty against the individual in the amount of 25 percent of the benefits paid as a result of the false certification (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3305, as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

Notice.- Commencing January 1, 2004, the Director of Employment Development shall provide to each employer of employees subject to this part a notice informing workers of their disability insurance rights and benefits due to the employee's own sickness, injury, or pregnancy, or the employee's need to provide care for any sick or injured family member, or the employee's need to bond with a minor child within the first year of the child's birth or placement in connection with foster care or adoption. The notice shall also instruct the employee to provide notification of the reason for taking leave in a manner consistent with company policy. The notice shall be given by every employer to each new employee hired on or after January 1, 2004, and to each employee leaving work on or after July 1, 2004, due to pregnancy, nonoccupational sickness or injury, or the need to provide care for any sick or injured family member, or the need to bond with a minor child within the first year of the child's birth or placement in connection with foster care or adoption (Unemployment Insurance Code, Sec. 2613, as amended by Ch. 797 (S. 727), L. 2003, as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

Definitions.- For purposes of this part, “child” means a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or the person to whom the employee stands in loco parentis (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3302, as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

For purposes of this part, “family care leave” means any of the following (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3302, as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004):

1. leave to bond with a minor child within the first year of the child's birth or placement in connection with foster care or adoption.

2. leave to care for a child, parent, spouse, or domestic partner who has a serious health condition.

For purposes of this part, “parent” means a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3302, as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

For purposes of this part, “domestic partner” has the same meaning as defined in Sec. 297 of the Family Code (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3302, as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

For purposes of this part, “family member” means child, parent, spouse, or domestic partner as defined in this section (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3302, as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

For purposes of this part, “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential health care facility, or continuing treatment or continuing supervision by a health care provider (Unemployment Insurance Code, Div. 1, Pt. 2, Ch. 7, Sec. 3302, as amended by Ch. 797 (S. 727), L. 2003, operative January 1, 2004, except that benefits shall be payable for family temporary disability insurance claims commencing on or after July 1, 2004).

Paternity leave

See “State employees,” above.

School visitation leave

See also “Family activity leave,” below.

School activities.- No employer who employs 25 or more employees working at the same location may discharge or in any way discriminate against an employee who is a parent, guardian, or grandparent having custody, of one or more children in kindergarten or grades one to 12, inclusive, or attending a licensed child day care facility, for taking off up to 40 hours each year, not exceeding eight hours in any calendar month of the year, to participate in activities of the school or licensed child day care facility of any of his or her children, if the employee, prior to taking the time off, gives reasonable notice to the employer of the planned absence of the employee (Labor Code, Sec. 230.8, as amended by Ch. 157 (A. 47), L. 1997).

If both parents of a child are employed by the same employer at the same worksite, the entitlement to school/day care visitation leave as to that child applies, at any one time, only to the parent who first gives notice to the employer, such that the other parent may take a planned absence simultaneously as to that same child only if he or she obtains the employer's approval for the requested time off (Labor Code, Sec. 230.8, as amended by Ch. 157 (A. 47), L. 1997).

An employee must utilize existing vacation, personal leave, or compensatory time off for purposes of school/day care visitation unless otherwise provided by a collective bargaining agreement entered into before January 1, 1995, and in effect on that date. An employee also may utilize time off without pay for this purpose, to the extent made available by the employer. The entitlement of any employee to school/day care visitation leave will not be diminished by any collective bargaining agreement term or condition that is agreed to on or after January 1, 1995 (Labor Code, Sec. 230.8, as amended by Ch. 157 (A. 47), L. 1997).

If all permanent, full-time employees of an employer are accorded vacation during the same period of time in the calendar year, an employee of that employer may not utilize that accrued vacation benefit at any other time for purposes of school/day care visitation leave (Labor Code, Sec. 230.8, as amended by Ch. 157 (A. 47), L. 1997).

An employee, if requested by the employer, must provide documentation from the school or licensed child day care facility as proof that he or she participated in school or licensed child day care facility activities on a specific date and at a particular time (Labor Code, Sec. 230.8, as amended by Ch. 157 (A. 47), L. 1997).

Suspensions.- No employer may discharge or in any manner discriminate against an employee who is the parent or guardian of a pupil for taking time off to appear in the school of a pupil who has been suspended, if the employee, prior to taking the time off, gives reasonable notice to the employer (Labor Code, Sec. 230.7).

Use of sick leave

Any employer who provides sick leave for employees must permit an employee to use in any calendar year the employee's accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee's then current rate of entitlement, to attend to an illness of a child, parent, spouse or domestic partner of the employee. All conditions and restrictions placed by the employer upon the use by an employee of sick leave also apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse or domestic partner. This provision does not extend the maximum period of leave to which an employee is entitled under Sec. 12945.2 of the Government Code (see WHAT THE EMPLOYER MUST DO, California Family Rights Act, Eligibility, above) or under the federal Family and Medical Leave Act of 1993, regardless of whether the employee receives sick leave compensation during that leave (Labor Code, Sec. 233(a), as amended by Ch. 893 (A. 25), L. 2001).

No employer may deny an employee the right to use sick leave or discharge, threaten to discharge, demote, suspend or in any manner discriminate against an employee for using, or attempting to exercise the right to use, sick leave to attend to an illness of a child, parent, spouse, or domestic partner of the employee (Labor Code, Sec. 233(c), as amended by Ch. 893 (A. 25), L. 2001).

Any employee aggrieved by a violation of this provision is entitled to reinstatement and actual damages or one day's pay, whichever is greater, and to appropriate equitable relief (Labor Code, Sec. 233(d), as amended by Ch. 893 (A. 25), L. 2001).

Upon the filing of a complaint by an employee, the Labor Commissioner will enforce the law. Alternatively, an employee may bring a civil action for the remedies provided by law in a court of competent jurisdiction (Labor Code, Sec. 233(e), as amended by Ch. 893 (A. 25), L. 2001).

An employer absence control policy that counts sick leave taken pursuant to Sec. 233 (just above) as an absence that may lead to or result in discipline, discharge, demotion, or suspension is a per se violation of Sec. 233. An employee working under this policy is entitled to appropriate legal and equitable relief pursuant to Sec. 233 (Labor Code, Sec. 234, as added by Ch. 1107 (S. 1471), L. 2001).

School employees (personal necessity leave.)- A probationary or permanent employee may, at his or her election, use any days of absence for illness or injury earned pursuant to Sec. 45191 in cases of personal necessity, including any of the following (Education Code, Sec. 45207(a), as amended by Ch. 843 (A. 1038), L. 2003):

1. death of a member of his or her immediate family when additional leave is required beyond that provided in Sec. 45194 and that provided, in addition thereto, as a right by the governing board;

2. accident, involving his or her person or property, or the person or property of a member of his or her immediate family.

Employees shall not be required to secure advance permission for leave taken for the purposes outlined just above. Earned leave in excess of seven days may not be used in any school year for these purposes, except if either of the following conditions exist (Education Code, Sec. 45207(b), as amended by Ch. 843 (A. 1038), L. 2003):

1. a maximum number of days in excess of seven is specified for that purpose in an agreement between the exclusive representative of the employees and the school district;

2. if there is no exclusive representative of the employees, the governing board of the school district, by resolution, adopts a policy allowing earned leave in excess of seven days to be used in any school year for the purposes enumerated above.

These personal necessity provisions also apply to contract and regular employees of community colleges (Education Code, Sec. 88207, as amended by Ch. 843 (A. 1038), L. 2003).

Victims of Domestic Violence Employment Leave Act

In addition to the requirements and prohibitions imposed on employees pursuant to Labor Code, Sec. 230 (see ¶5-7100 ), an employer with 25 or more employees may not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to attend to any of the following (Labor Code, Sec. 230.1, as amended by Ch. 275 (A. 2195), L. 2001):

1. to seek medical attention for injuries caused by domestic violence or sexual assault;

2. to obtain services from a domestic violence shelter, program or rape crisis center as a result of domestic violence or sexual assault;

3. to obtain psychological counseling related to an experience of domestic violence or sexual assault;

4. to participate in safety planning and take other actions to increase safety from future domestic violence or sexual assault, including temporary or permanent relocation.

As a condition of taking time off for a purpose set forth just above, the employee must give the employer reasonable advance notice of the employee's intention to take time off, unless the advance notice is not feasible. When an unscheduled absence occurs, the employer must not take any action against the employee if the employee, within a reasonable time after the absence, provides a certification to the employer. Certification will be sufficient in the form of any of the following (Labor Code, Sec. 230.1, as amended by Ch. 275 (A. 2195), L. 2001):

1. a police report indicating that the employee was a victim of domestic violence or sexual assault;

2. a court order protecting or separating the employee from the perpetrator of an act of domestic violence or sexual assault, or other evidence from the court or prosecuting attorney that the employee appeared in court;

3. documentation from a medical professional, domestic violence advocate or advocate for victims of sexual assault, health care provider, or counselor that the employee was undergoing treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence or sexual assault.

To the extent allowed by law, employers must maintain the confidentiality of any employee requesting domestic violence/sexual assault leave (Labor Code, Sec. 230.1, as amended by Ch. 275 (A. 2195), L. 2001).

Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for a purpose relating to domestic violence/sexual assault as described above is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. Any employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or hearing authorized by law is guilty of a misdemeanor (Labor Code, Sec. 230.1, as amended by Ch. 275 (A. 2195), L. 2001).

Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has exercised his or her rights with regard to domestic violence/sexual assault as set forth above may file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations. An employee has one year from the date of occurrence of the violation to file his or her complaint (Labor Code, Sec. 230.1, as amended by Ch. 275 (A. 2195), L. 2001).

An employee may use vacation, personal leave or compensatory time off that is otherwise available to the employee under the applicable terms of employment, unless otherwise provided by a collective bargaining agreement, for time taken off for a purpose relating to domestic violence/sexual assault specified above (Labor Code, Sec. 230.1, as amended by Ch. 275 (A. 2195), L. 2001).

This section does not create a right for an employee to take unpaid leave that exceeds the unpaid leave time allowed under, or is in addition to the unpaid leave time permitted by, the federal Family and Medical Leave Act of 1993 (Labor Code, Sec. 230.1, as amended by Ch. 275 (A. 2195), L. 2001).

Family crisis leave

The state recognizes that on occasion it may be necessary for employees to take time off to attend to family crisis situations, including, but not limited to, divorce counseling, family or parenting conflict management, family-care urgent matters and/or emergencies. Subject to departmental operational needs, excluded employees shall be permitted to use eligible leave credits to attend to family crisis situations (Cal CodeRegs, Sec. 599.911, as adopted effective December 27, 2001).

Eligible leave credits include annual leave, vacation, compensating time off (CTO), personal leave, holiday credits, and/or sick leave. If the employee has exhausted available leave credits, he/she may request unpaid leave. Sick leave credits may be used consistent with sick leave policies (Cal CodeRegs, Sec. 599.911, as adopted effective December 27, 2001).

“Family” is defined as the parent, spouse, certified domestic partner, son, daughter, or any child the employee stands in loco parentis to, grandchild, grandparent, brother, sister, or any person residing in the household (Cal CodeRegs, Sec. 599.911, as adopted effective December 27, 2001).

Requests for family crisis leave shall be in accordance with departmental policies and, except in emergencies, shall be made with reasonable notice to the employee's immediate supervisor (Cal CodeRegs, Sec. 599.911, as adopted effective December 27, 2001).

The employee may be required to provide substantiation to support his/her request for family crisis leave. The appointing power shall maintain the confidentiality of any employee requesting accommodation under this section (Cal CodeRegs, Sec. 599.911, as adopted effective December 27, 2001).

The appointing power will consider requests from employees to adjust work hours or schedules or consider other flexible arrangements to participate in such activities in accordance with departmental policies and consistent with operational needs (Cal CodeRegs, Sec. 599.911, as adopted effective December 27, 2001).

Family activity leave

See also “School visitation leave,” above.

The state recognizes that on occasion it may be necessary for employees to take time off to attend to family or school-related activities in which the employee's child is participating, including, but not limited to, plays, graduations, field trips, organized sports events, recitals, Scouts, 4-H, Junior Achievement, and Grange (Cal CodeRegs, Sec. 599.912, as adopted effective December 27, 2001).

Subject to departmental operational needs, and reasonable notice to the employee's supervisor, excluded employees shall be permitted to use no less than 20 hours per calendar year of accumulated eligible leave credits to attend family or school-related activities in which the employee's child is participating. Use of such leave shall not diminish the 40-hour leave entitlement provided under the Family School Partnership Act (Cal CodeRegs, Sec. 599.912, as adopted effective December 27, 2001).

Eligible leave credits include annual leave, vacation, compensating time off (CTO), personal leave, and/or holiday credits. They do not include sick leave. If the employee has exhausted available leave credits, he/she may request unpaid leave (Cal CodeRegs, Sec. 599.912, as adopted effective December 27, 2001).

“Employee's child” is defined as the employee's son, daughter, or any child the employee stands in loco parentis (to the child) (Cal CodeRegs, Sec. 599.912, as adopted effective December 27, 2001).

Requests for family activity leave shall be in accordance with departmental policies. The employee may be required to provide substantiation to support the request to attend such activities (Cal CodeRegs, Sec. 599.912, as adopted effective December 27, 2001).

The appointing power shall consider requests from employees to adjust work hours or schedules or consider other flexible arrangements to participate in such activities, in accordance with departmental policies and consistent with operational needs (Cal CodeRegs, Sec. 599.912, as adopted effective December 27, 2001).

Organ/bone marrow donation leave

State agencies.- Subject to Sec. 19991.11(b) below, an appointing power shall grant to an employee, who has exhausted all available sick leave, the following leaves of absence with pay (Gov't Code, Sec. 19991.11(a), as added by Ch. 869 (A. 1825), L. 2001):

1. a leave of absence not exceeding 30 days to any employee who is an organ donor in any one-year period, for the purpose of donating his or her organ to another person.

2. a leave of absence not exceeding five days to any employee who is a bone marrow donor in any one-year period, for the purpose of donating his or her bone marrow to another person.

In order to receive a leave of absence as described just above, an employee must provide written verification to the appointing power that he or she is an organ or bone marrow donor and that there is a medical necessity for the donation of the organ or bone marrow (Gov't Code, Sec. 19991.11(b), as added by Ch. 869 (A. 1825), L. 2001).

Any period of time during which an employee is required to be absent from his or her position by reason of being an organ or bone marrow donor is not a break in his or her continuous service for the purpose of his or her right to salary adjustments, sick leave, vacation, annual leave, or seniority (Gov't Code, Sec. 19991.11(c), as added by Ch. 869 (A. 1825), L. 2001).

If an employee is unable to return to work beyond the time or period that he or she is granted leave pursuant to this section, he or she must be paid any vacation balance, annual leave balance, or accumulated compensable overtime. The payment shall be computed by projecting the accumulated time on a calendar basis as though the employee was taking time off. If, during the period of projection, the employee is able to return to work, he or she must be returned to his or her former position (Gov't Code, Sec. 19991.11(d), as added by Ch. 869 (A. 1825), L. 2001).

If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Sec. 3517.5, the memorandum of understanding shall be controlling without further legislative action, except that, if those provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the legislature in the annual budget act (Gov't Code, Sec. 19991.11(e), as added by Ch. 869 (A. 1825), L. 2001).

California State University.- Subject to Sec. 89519.5(b) below, the Trustees of the California State University must grant to an employee, who has exhausted all available sick leave, the following leaves of absence with pay (Education Code, Sec. 89519.5(a), as added by Ch. 869 (A. 1825), L. 2001):

1. a leave of absence not exceeding 30 days to any employee who is an organ donor in any one-year period, for the purpose of donating his or her organ to another person;

2. a leave of absence not exceeding five days to any employee who is a bone marrow donor in any one-year period, for the purposes of donating his or her bone marrow to another person.

To receive a leave of absence as described just above, an employee must provide written verification to the trustees that he or she is an organ or bone marrow donor and that there is a medical necessity for the donation of the organ or bone marrow (Education Code, Sec. 89519.5(b), as added by Ch. 869 (A. 1825), L. 2001).

Any period of time during which an employee is required to be absent from his or her position of being an organ or bone marrow donor is not a break in his or her continuous service for the purpose of his or her right to salary adjustments, sick leave, vacation, annual leave, or seniority (Education Code, Sec. 89519.5(c), as added by Ch. 869 (A. 1825), L. 2001).

If an employee is unable to return to work beyond the time or period that he or she is granted leave pursuant to this section, he or she must be paid any vacation balance, annual leave balance, or accumulated compensable overtime. The payment must be computed by projecting the accumulated time on a calendar basis as though the employee was taking time off. If, during the period of projection, the employee is able to return to work, he or she must be returned to his or her former position (Education Code, Sec. 89519.5(d), as added by Ch. 869 (A. 1825), L. 2001).

If this section conflicts with the provisions of a memorandum of understanding reached pursuant to Ch. 12 of Div. 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that, if those provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the legislature in the annual budget act (Education Code, Sec. 89519.5(e), as added by Ch. 869 (A. 1825), L. 2001).

University of California.- If the Regents of the University of California adopt this section, by appropriate resolution, and subject to Sec. 92611.5(b) below, the regents must grant to an employee, who has exhausted all available sick leave, the following leaves of absence with pay (Education Code, Sec. 92611.5(a), as added by Ch. 869 (A. 1825), L. 2001):

1. a leave of absence not exceeding 30 days to any employee who is an organ donor in any one-year period, for the purpose of donating his or her organ to another person.

2. a leave of absence not exceeding five days to any employee who is a bone marrow donor in any one-year period, for the purpose of donating his or her bone marrow to another person.

To receive a leave of absence as described just above, an employee must provide written verification to the regents that he or she is an organ or bone marrow donor and that there is a medical necessity for the donation of the organ or bone marrow (Education Code, Sec. 92611.5(b), as added by Ch. 869 (A. 1825), L. 2001).

Any period of time during which an employee is required to be absent from his or her position by reason of being an organ or bone marrow donor is not a break in his or her continuous service for the purpose of his or her right to salary adjustments, sick leave, vacation, annual leave, or seniority (Education Code, Sec. 92611.5(c), as added by Ch. 869 (A. 1825), L. 2001).

If an employee is unable to return to work beyond the time or period that he or she is granted leave pursuant to this section, he or she shall be paid any vacation balance, annual leave balance, or accumulated compensable overtime. The payment shall be computed by projecting the accumulated time on a calendar basis as though the employee was taking time off. If, during the period of projection, the employee is able to return to work, he or she shall be returned to his or her former position (Education Code, Sec. 92611.5(d), as added by Ch. 869 (A. 1825), L. 2001).

If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Ch. 12 of Div. 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that, if those provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the legislature in the annual budget act (Education Code, Sec. 92611.5(e), as added by Ch. 869 (A. 1825), L. 2001).

Family military leave

Notwithstanding any other provision of law, a qualified employer shall allow a qualified employee to take up to 10 days of unpaid leave during a qualified leave period (Military and Veterans Code, Sec. 395.10(a), as added by Ch. 361 (A. 392), L. 2007, effective October 9, 2007).

“Qualified employee” means a person who satisfies all of the following (Military and Veterans Code, Sec. 395.10(b)(2), as added by Ch. 361 (A. 392), L. 2007, effective October 9, 2007):

1. is the spouse of a qualified member.

2. performs service for hire for an employer for an average of 20 or more hours per week, but does not include an independent contractor.

3. provides the qualified employer with notice, within two business days of receiving official notice that the qualified member will be on leave from deployment, of his or her intention to take the leave provided for in Sec. 395.10(a) (see just above).

4. submits written documentation to the qualified employer certifying that the qualified member will be on leave from deployment during the time the leave provided for in Sec. 395.10(a) is requested.

“Qualified employer” includes any individual, corporation, company, firm, state, city, county, city and county, municipal corporation, district, public authority, or any other governmental subdivision, that employs 25 or more employees (Military and Veterans Code, Sec. 395.10(b)(3), as added by Ch. 361 (A. 392), L. 2007, effective October 9, 2007).

“Qualified member” means a person who is any of the following (Military and Veterans Code, Sec. 395.10(b)(4), as added by Ch. 361 (A. 392), L. 2007, effective October 9, 2007):

1. a member of the Armed Forces of the United States who has been deployed during a period of military conflict to an area designated as a combat theater or combat zone by the President of the United States.

2. a member of the National Guard who has been deployed during a period of military conflict.

3. a member of the Reserves who has been deployed during a period of military conflict.

“Qualified leave period” means the period during which the qualified member is on leave from deployment during a period of military conflict (Military and Veterans Code, Sec. 395.10(b)(5), as added by Ch. 361 (A. 392), L. 2007, effective October 9, 2007).

A qualified employer shall not retaliate against a qualified employee for requesting or taking the leave provided for in this section (Military and Veterans Code, Sec. 395.10(c), as added by Ch. 361 (A. 392), L. 2007, effective October 9, 2007).

The leave provided for in this section shall not affect or prevent a qualified employer from allowing a qualified employee to take a leave that the qualified employee is otherwise entitled to take (Military and Veterans Code, Sec. 395.10(d), as added by Ch. 361 (A. 392), L. 2007, effective October 9, 2007).

This section shall not affect a qualified employee's rights with respect to any other employee benefit provided for in other laws (Military and Veterans Code, Sec. 395.10(e), as added by Ch. 361 (A. 392), L. 2007, effective October 9, 2007).

San Francisco paid sick days measure

On November 7, 2006, San Francisco voters passed Measure F, an initiative guaranteeing paid sick days to San Francisco workers. It provides up to 72 hours of paid leave each year for employees of businesses with 10 or more employees; smaller employers must grant up to 40 hours annually of paid sick leave. Leave may be used for self-care or to care for a family member or other individual covered under the provision.

Everyone who is employed in San Francisco shall accrue one hour of paid sick leave for every 30 hours worked. New hires start to accrue sick leave after a three-month probationary period. Accrued leave carries over from year to year, but the accrual of sick time stops once an employee reaches the maximum of 72 hours (or 40 hours for small businesses, as defined as having fewer than 10 employees). Workers may not cash out or be reimbursed for unused hours upon termination or resignation of employment.

In the case of employees covered by a union contract, Measure F has a collective bargaining opt-out.

The measure guarantees workers paid sick leave to take care of themselves and their parents and legal guardians, siblings, children, spouse or registered domestic partner, or grandparents. Also, workers may designate one person at the beginning of employment whom they care for who is not covered by the above categories. Workers may only use paid sick leave for that one person for the course of employment. These categories include biological, adopted, and foster relationships.

Employees may use sick hours to miss part of a shift in order to attend medical appointments.

Employers may require employees to give reasonable notification of an absence from work for which paid sick leave will be used. Employers are required to maintain accurate and updated records on sick time accrual under California Labor Code 226. Employers may use existing systems to record accrual of paid sick leave and do not have to modify their systems (Measure F, approved November 7, 2006, effective February 5, 2007).

NOTICE

California Family Rights Act

Right to request leave.- Covered employers must provide notice to their employees of the right to request California Family Rights Act (CFRA) leave. Employers are encouraged to give a copy of the notice to each current and new employee, ensure that copies are otherwise available to each current and new employee, and disseminate the notice in any other way (Cal CodeRegs, Sec. 7297.9).

Handbooks.- If an employer publishes an employee handbook that describes other kinds of personal or disability leaves available to its employees, that employer must include a description of CFRA leave in the next edition of its handbook published after May 22, 1995 (Cal CodeRegs, Sec. 7297.9).

Foreign languages.- Any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their primary language must translate the notice into the language(s) spoken by this group or these groups of employees (Cal CodeRegs, Sec. 7297.9).

Leave requests.- An employee must provide at least verbal notice sufficient to make the employer aware that the employee needs California Family Rights Act (CFRA)-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or the federal FMLA, or even mention those laws, to meet the notice requirement; however, the employee must state the reason the leave is needed. The employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken (Cal CodeRegs, Sec. 7297.4).

Under all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information provided by the employee or the employee's spokesperson, and to give notice of the designation to the employee (Cal CodeRegs, Sec. 7297.4).

Employers may not retroactively designate leave as “CFRA leave” after the employee has returned to work, except under those same circumstances provided for in FMLA and its implementing regulations for retroactively counting leave as “FMLA leave.” (Cal CodeRegs, Sec. 7297.4).

30 days' advance notice.- If an employee's need for family care and medical leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or a family member, an employer may require the employee to provide at least 30 days' advance notice before the leave is to begin. If 30 days' notice is not practicable, notice must be given as soon as practicable. An employer may not, however, deny a family care leave, the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide advance notice of the need for the leave (Gov't Code, Sec. 12945.2 and Cal CodeRegs, Sec. 7297.4).

Notice of notice requirement.- An employer must give its employees reasonable advance notice of any notice requirements that it adopts. Failure of the employer to give or post such notice precludes 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 (Cal CodeRegs, Sec. 7297.4).

Pregnancy leave

Fair employment practices law/regulations

Right to request leave.- All employers must provide notice to their employees of the right to request pregnancy disability leave under the Fair Employment and Housing Act. If the employer publishes an employee handbook that describes other kinds of temporary disability leaves available to its employees, that employer must include a description of pregnancy disability leave in the next edition of its handbook that it publishes after May 22, 1995. If an employer qualifies as a California Family Rights Act (CFRA) employer, the employer may include both pregnancy disability leave and CFRA leave requirements in a single notice. An employer is also required to give an employee a copy of the appropriate notice as soon as practicable after the employee tells the employer of her pregnancy or sooner if the employee inquires about pregnancy disability leaves (Cal CodeRegs, Sec. 7291.16).

Employers are also encouraged to give a copy of the notice to each current and new employee, ensure that copies are otherwise available to each current and new employee, and disseminate the notice in any other way (Cal CodeRegs, Sec. 7291.16).

Any CFRA-covered employer whose work force at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their primary language must translate the notice into the language or languages spoken by this group or these groups of employees (Cal CodeRegs, Sec. 7291.16).

See ¶5-9900 for posting provisions.

Notice of leave.- An employer may require any employee who plans to take a leave of absence for pregnancy, childbirth, or a related medical condition to give the employer reasonable notice of the date the leave will commence and the estimated duration of the leave (Gov't Code, Sec. 12945, as amended by Ch. 591 (A. 1670), L. 1999, effective January 1, 2000).

Verbal notice.- An employee must provide at least verbal notice sufficient to make the employer aware that the employee needs a pregnancy disability leave, and the anticipated timing and duration of the leave (Cal CodeRegs, Sec. 7291.10).

30 days' advance notice.- An employee must provide the employer at least 30 days' advance notice before pregnancy disability leave is to begin if the need for the leave is foreseeable because of pregnancy. The employee must consult with the employer and make a reasonable effort to schedule any planned medical treatment or supervision so as to minimize disruption to the operations of the employer. Any such scheduling, however, is subject to the approval of the health care provider of the employee (Cal CodeRegs, Sec. 7291.10).

If 30 days' advance notice is not practicable, notice must be given as soon as practicable (Cal CodeRegs, Sec. 7291.10).

An employer must not deny a pregnancy disability leave, the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide advance notice of the need for the leave (Cal CodeRegs, Sec. 7291.10).

Notice of notice requirement.- An employer must give its employees reasonable advance notice of any notice requirements that it adopts. Failure of the employer to give or post such notice precludes the employer from taking any adverse action against the employee, including denying pregnancy disability leave, for failing to furnish the employer with advance notice of a need to take such leave (Cal CodeRegs, Sec. 7297.10).

School visitation leave

Employees must give reasonable notice to their employer of their planned absence to participate in activities of the school or licensed child day care facility of a child or to appear in the school of a pupil who has been suspended (Labor Code, Sec. 230.7; Labor Code, Sec. 230.8, as amended by Ch. 157 (A. 47), L. 1997).

Victims of Domestic Violence Employment Leave Act

See WHAT THE EMPLOYER MUST DO, above.

Family Temporary Disability Insurance (Paid Family Leave) program

See WHAT THE EMPLOYER MUST DO, above.

DEADLINES

California Family Rights Act.- The employer must respond to a request for family care leave as soon as possible and in any event no later than 10 days after receiving the request. The employer must attempt to respond to the leave request before the date the leave is due to begin (Cal CodeRegs, Sec. 7297.4).

POLICIES

Certification : Return-to-work.- As a condition of an employee's return from leave taken because of the employee's own serious health condition, the employer may have a uniformly applied practice or policy that requires the employee to obtain certification from his or her health care provider that the employee is able to resume work (Gov't Code, Sec. 12945.2, and Cal CodeRegs, Sec. 7297.4).

Leave requests: California Family Rights Act.- An employer may adopt a written policy regarding requests by eligible employees to take family care leave and may defer or deny a requested leave until the employee complies with its policy. This policy may encourage employees to give as much advance notice as possible, but cannot be more restrictive than the following notice requirements (Cal CodeRegs, Sec. 7297.4):

1. If the event necessitating leave becomes known to the employee more than 30 calendar days prior to the employee's need for a leave, the employee must provide notice as soon as he or she learns of the need for a leave and, at a minimum, 30 days' written advance notice to the employer.

2. If the event necessitating leave becomes known to the employee less than 30 days prior to the employee's need for a leave, the employee must provide to the employer as much advance notice as possible, and, at a minimum, written notice no more than five working days from learning of the need for the leave.

3. If the employee's need for a family care leave is foreseeable due to a planned medical treatment or planned supervision of a child, parent or spouse with a serious health condition, an employer may require the employee to provide reasonable advance notice of the need for the leave and to consult with the employer regarding the scheduling of the treatment or supervision so as to minimize disruption to the operations of the employer.

4. Before granting a leave for the serious health condition of a child, parent or spouse, the employer may require certification of the serious health condition. Upon expiration of the time period that the health care provider originally estimated that the employee needed to take care of the child, parent or spouse, the employer may require the employee to obtain recertification if additional leave is requested.

Pregnancy leave: Length of leave.- All employers must provide a leave of up to four months, as needed, for the period(s) of time a woman is actually disabled by pregnancy even if an employer has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees (Cal CodeRegs, Sec. 7291.7).

More generous policy.- If an employer has a more generous leave policy for other temporary disabilities than is required for pregnancy disability leave (four months), the employer must provide such leave to employees temporarily disabled by pregnancy (Cal CodeRegs, Sec. 7291.7).

Release to return to work.- As a condition of an employee's return from pregnancy disability leave, an employer may require that the employee obtain a release to “return to work” from her health care provider stating that she is able to resume her original job duties only if the employer has a uniformly applied practice or policy of requiring such releases from other similarly situated employees returning to work after a non-pregnancy related disability leave (Cal CodeRegs, Sec. 7291.10).

ENFORCEMENT

See also WHAT THE EMPLOYER MUST DO, above.

School visitation leave.- Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by the employee's employer because the employee has taken time off to appear in the school of a pupil who has been suspended or to participate in school or licensed child day care facility activities is entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer (Labor Code, Sec. 230.7; Labor Code, Sec. 230.8, as amended by Ch. 157 (A. 47), L. 1997).

WHO TO CONTACT

Contact the Fair Employment and Housing Commission at 1390 Market St., Suite 410, San Francisco, CA 94102-5377. Telephone: (415) 557-2325. Fax: (415) 557-0855.

POSTING

Employers must notify employees of their right to request CFRA leave under the California Family Rights Act. Employers must post the notice in a conspicuous place or places where employees tend to congregate. The employer may include both pregnancy disability leave and CFRA leave requirements in a single notice. Any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their primary language must translate the notice into the appropriate language or languages. Employers may develop their own notice or use the state-provided notice reproduced below. The text below contains only the minimum requirements of the California Family Rights Act of 1993 and of the employer's obligation to provide pregnancy disability leave. Employers may provide a leave policy that is more generous than that required by this act or provide its own notice of its own policy (Cal CodeRegs, Sec. 7297.9):

State-provided notice.- Under the California Family Rights Act of 1993, if you have more than 12 months of service with us and have worked at least 1,250 hours in the 12-month period before the date you want to begin your leave, you may have a right to an unpaid family care or medical leave (CFRA leave). This leave may be up to 12 workweeks in a 12-month period for the birth, adoption, or foster care placement of your child or for your own serious health condition or that of your child, parent or spouse.

Even if you are not eligible for CFRA leave, if you are disabled by pregnancy, childbirth or related medical conditions, you are entitled to take a pregnancy disability leave of up to four months, depending on your period(s) of actual disability. If you are CFRA-eligible, you have certain rights to take BOTH a pregnancy disability leave and a CFRA leave for reason of the birth of your child. Both leaves contain a guarantee of reinstatement to the same or to a comparable position at the end of the leave, subject to any defense allowed under the law.

If possible, you must provide at least 30 days advance notice for foreseeable events (such as the expected birth of a child or a planned medical treatment for yourself or of a family member). For events which are unforeseeable, we need you to notify us, at least verbally, as soon as you learn of the need for the leave.

Failure to comply with these notice rules is grounds for, and may result in, deferral of the requested leave until you comply with this notice policy.

We may require certification from your health care provider before allowing you a leave for pregnancy or your own serious health condition or certification from the health care provider of your child, parent or spouse who has a serious health condition before allowing you a leave to take care of that family member. When medically necessary, leave may be taken on an intermittent or reduced work schedule.

If you are taking a leave for the birth, adoption or foster care placement of a child, the basic minimum duration of the leave is two weeks and you must conclude the leave within one year of the birth or placement for adoption or foster care.

Taking a family care or pregnancy disability leave may impact certain of your benefits and your seniority date. If you want more information regarding your eligibility for a leave and/or the impact of the leave on your seniority and benefits, please contact  . (Cal CodeRegs, Sec. 7297.9).

Pregnancy leave.- See ¶5-9900 for posting requirements relating to pregnancy disability leave.

PENALTIES

See also WHAT THE EMPLOYER MUST DO, above.

California Family Rights Act.- Upon determining that an employer has violated the California Family Rights Act, the Fair Employment and Housing Commission may order any remedy available under Government Code Sec. 12970 (see ¶5-2500 ), retroactive relief, including back pay and injunctive or other equitable relief, and prospective relief, including restoration to one's rightful place and front pay. The remedy for failure to provide notice, however, is an order that the employer must provide notice (Cal CodeRegs, Sec. 7297.8).

Pregnancy leave.- Upon determining that an employer has violated California's pregnancy disability leave provisions, the Fair Employment and Housing Commission may order any remedy available under Government Code Sec. 12970 (see ¶5-2500 ), retroactive relief, including back pay and injunctive or other equitable relief, and prospective relief, including restoration to one's rightful place and front pay. The remedy for failure to provide notice, however, is an order that the employer must provide notice (Cal CodeRegs, Sec. 7291.15).

School visitation leave.- Any employer who willfully refuses to rehire, promote or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law will be subject to a civil penalty in an amount equal to three times the amount of the employee's lost wages and work benefits (Labor Code, Sec. 230.8, as amended by Ch. 157 (A. 47), L. 1997).

<p>School visitation leave.— Any employer who willfully refuses to rehire, promote or otherwise restore an employee or former employee who has been determined to b</p>

California, Family, Medical and Parental Leaves Law Summaries

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