Family leave in California is confusing to employers and employees alike. There are several nuances, rules, and paperwork requirements to keep track of for family leave. But fear not, because we are here to help! This article will help you understand what family leave is, as well as the four sources of leave in California.
First off, what do we mean when we say “family leave”? This term encompasses maternity “disability” leave, familial “bonding” with a new child, and leave for handling a serious medical condition. These are the overarching categories. However, as we will see below, there are nuances to these categories within each source of family leave. Super confusing; we told you!
Federal Leave Law
Family and Medical Leave Act (FMLA)
Caution! This particular, federal law only applies to employers who have 50+ employees. Generally, “the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.” So, that is a lot of language in one sentence; let’s break it down.
An “eligible” employee under the Family Medical Leave Act is one who works:
- For an eligible employer (the 50+ employees threshold from above);
- For the employer for at least 12 months (need not be consecutive);
- At least 1,250 hours for the employer during the 12 month period immediately before the leave; and
- At a location where the employer has at least 50 employees within 75 miles.
An employee can take Family Medical Leave Act leave for:
- The birth of a child, or the adoption of a child, or the placement of a child for foster care;
- To care for a spouse, child, or parent who has a serious medical condition;
- For a serious medical condition that makes the employee unable to perform the essential functions of his or her job;
- For qualifying circumstances arising out of the fact that a spouse, child, or parent is a military member on covered active duty or call to covered active duty status; or
- An eligible employee may also take up to 26 workweeks of leave during a “single 12-month period” to care for the illness or serious medical condition of a servicemember who is the spouse, child, or parent of the employee.
** Please note: a “child” is broadly defined as a son or daughter that is biological, adopted, a foster child, a legal ward, or a person in loco parentis (which is a fancy, Latin way of saying that a grandmother, aunt, or other family member is primarily taking care of the child). In addition, although a “child” is typically legally relevant to a son or daughter below the age of 18, a “child” can also be older than that age if they have a qualifying physical or mental disability as defined by the Americans with Disabilities Act (ADA).
Unfortunately, this is just the beginning of understanding the FMLA. There are a number of other aspects to the FMLA, so it’s a good idea to consult with your lawyer once you reach the 50+ employee threshold.
California State Leave Laws
California Family Rights Act (CFRA)
This California law mirrors the FMLA, and the following resource contrasts the few differences (if any, really) between the CFRA and the FMLA: click here. Well, that one was easy, right?
California’s Maternity “Disability” Leave
California considers maternity leave a type of “disability” leave that is exclusive to a pregnant mother, hence the name! In other words, the law considers pregnancy to be a temporary disability that allows the mother certain protections under State Disability Insurance (SDI).
To qualify for maternity “disability” leave under State Disability Insurance (other than actually being a pregnant mother) the individual must:
- Be unable to perform regular work duties for at least 8 consecutive days;
- Hold a job or actively be looking for work at the time SDI begins;
- Have lost wages due to the pregnancy if employed;
- Have earned at least $300 from which SDI deductions were withheld (which can be calculated here);
- Be under the care of a licensed physician or accredited religious practitioner during the first 8 days of leave and be under this ongoing care during the SDI benefit period; and
- Have the medical care professional (from above) fill out a medical certification of disability.
Once qualified and approved by the State, the mother will receive up to 55% of her normal salary for the SDI benefit period. To be clear, SDI benefits are state-funded. At some point during the process, however, the State will reach out to the employer for certification purposes; more info can be found in the employer “Tips” section.
It is important to note that, unlike the other forms of leave we have looked at so far, maternity “disability” leave is not job-protected leave, meaning an employer could hypothetically fire a pregnant mother while on leave (but that would be a 💩-y move). Lastly, any and all employers are subject to this law.
California’s Paid Family Leave (PFL)
This type of family leave, in some ways, aims to combine the scope of the FMLA with the monetary incentives of maternity “disability” leave. Let us explain.
PFL provides benefits for an employee who is taking leave to care for their own serious medical condition, or a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner. Under this leave, the employee, once approved by the State, is paid up to 55% of the their normal salary for the benefit period. To be clear again, PFL benefits are state-funded.
After satisfying the requirements of the prior paragraph, the State will consider an employee “eligible” if that individual is:
- Unable to perform regular work duties for at least 8 consecutive days;
- Employed or actively looking for work at the time PFL benefits begin;
- Subject to lost wages due to the serious medical condition, if employed;
- Qualified by having earned at least $300 from which SDI deductions were withheld (which can be calculated here);
- Able to provide certification from the applicable medical care professional. Employees must submit this form within 9 days into the benefit period, and no later than 49 days into the benefit period to maintain benefits.
Paid Family Leave also covers serious medical conditions. This is similar to but ultimately more expanded than the FMLA. California defines “serious medical condition” as:
- An illness, injury, impairment, or physical or mental condition of a patient that involves any period of incapacity; or
- Inpatient care in a hospital, hospice, or residential medical care facility and any subsequent treatment in connection with this care; or
- Continuing treatment by a physician/practitioner.
** Please note: “Unless complications arise, cosmetic treatments, the common cold, influenza, ear-aches, upset stomach, minor ulcers, and headaches other than migraine, are examples of conditions that do not meet the definition of a serious health condition for purposes of PFL.”
It is also important to note that PFL, like maternity “disability” leave, is not job-protected leave. But before doing anything rash, just remember that firing an employee who is tending to a serious medical condition is not only just plain sad, it’s also not great for morale. Not to mention, of course, the employee that now feels wronged and unhappy at their involuntary exit from the company. To avoid any legal headaches and lowered employee performance, it is best to keep open communication with the employee about the extent of their leave and try to work out a solution. Lastly, any and all employers are subject to this law.
**2018 Update: Parental Leave for Small Employers**
A new parental leave act will go into effect January 1, 2018, that expands the current parental leave to employers with 20 or more employees. The New Parent Leave Act requires that small businesses provide eligible employees up to 12 weeks of unpaid, job-protected leave for bonding with a new child. The parent must take their leave within one year of the child’s birth, adoption or foster care placement. This bill requires employers to provide parental leave only for baby bonding; it does not require employers to provide leave for other reasons, such as a family member’s medical issue.
To sum it all up, California allows four sources of family leave (with some caveats) to employees. Only employees working for an employer with 50+ employees qualify for family leave under the FMLA and CFRA, which provide unpaid, job-protected leave. For employees in California working for an employer with 20+ employees, they now have unpaid, job-protected leave under the New Parent Leave Act. California also offers family leave laws such as State Disability Insurance and Paid Family Leave that provide partial paid leave for maternity disability (mothers only) and family bonding (all parents) respectively.
For employers, it is important to note that none of the above laws mandate an employer to pay anything towards family leave — merely that the employer comply with the leave (and, in some cases, insure job security). However, it is always a good idea, when plausible, to offer some sort of supplemental pay to employees taking such leave as a way to incentivize retention and promote a healthy workplace.
Lastly, we know there are a number of moving parts to these leave laws (many of which should be addressed in your employee handbook), so always consult your lawyer when you think leave issues may arise.
By: Zachary Avina – 07/18/17
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