4 California-Specific Leave Challenges for Employers

A legal perspective on human resources idiosyncrasies in California

By Mishell Parreno Taylor and Deidra A. Nguyen August 9, 2017

This is the first in a series of articles about California-specific workplace compliance issues. This article examines the state's leave laws.

The prospect of working in California may sound too good to be true, what with the state's year-round sunshine and pristine beaches. But a plethora of unexpected employment law landmines could plague the uninitiated employer.

For companies making their first foray into the state, California's intricate web of employment laws can be intimidating. As transplants to California, we feel your pain. It would take a treatise to survey the numerous human resources laws that make California a complex jurisdiction for employers but, in this three-part series, we will be highlighting the top employment law challenges that businesses new to California should be aware of.

Let's begin with a look at California-specific leave requirements. Depending on their size and location, California employers may face a host of leave requirements, which may or may not align with the federally required leave rights.

1.    California Family Rights Act

Challenge No. 1 is navigating the nuances of the California Family Rights Act (CFRA)—also known as California's mini Family and Medical Leave Act (FMLA). Like its federal counterpart, CFRA covers all employers with 50 or more employees, including joint employers. 

[SHRM members-only toolkit: Managing Medical Leave in California]

Much like under the FMLA, employees are eligible for CFRA leave only if they have completed 12 months of service, have worked 1,250 hours during the 12-month period prior to the commencement of the leave and work for a site where the employer has at least 50 employees within 75 miles.

Notably, employees who work outside California can be counted for purposes of satisfying CFRA's 50-employee threshold—so long as they are located within a 75-mile radius of the relevant employee's worksite.

Setting aside the similarities in coverage and eligibility requirements, the reasons for which employees may take CFRA leave differ in important respects from leave available under the FMLA. 

For example, while employees may take FMLA leave to perform military caregiver functions (to care for a family member who is a covered veteran with a serious injury or illness) or to address military demands, such reasons do not qualify for CFRA leave. (Although, leave that would qualify as military caregiver leave under the FMLA could qualify under CFRA as leave for the serious health condition of a qualifying family member.)

On the other hand, CFRA covers some leaves that do not qualify under the FMLA because, unlike under the FMLA, an employee's leave to care for a registered domestic partner is covered.

Perhaps the biggest difference between the FMLA and CFRA, though, concerns CFRA's exclusion of pregnancy, childbirth and related medical conditions from its definition of a serious health condition.

As a result, pregnancy disability leave—which is available under the California Fair Employment and Housing Act (FEHA) and entitles eligible employees to four months (or 17.33 weeks) of leave per pregnancy—counts toward an employee's FMLA entitlement but does not count toward CFRA.

So, for example, CFRA can be used for baby bonding after pregnancy disability leave ends. This means that an employee on leave for pregnancy, childbirth or related medical conditions may ultimately be out of the workplace for far longer than the 12 weeks permitted under the FMLA. 

Pro Tip: Savvy employers know that there is no legal requirement to have an employee handbook, and very few policies are required to be included in such a handbook. But if your company is subject to CFRA and publishes an employee handbook that describes other kinds of personal or disability leaves available to employees, state law requires that the handbook include a description of CFRA leave. Similarly, employers subject to FEHA that provide employee handbooks are required to include information about pregnancy disability leave and accommodations in the handbook.

2.    Wage Replacement Programs

No discussion of California's layered web of leave laws would be complete without a discussion of the State Disability Insurance and Family Temporary Disability Insurance/Paid Family Leave programs. Though these state-funded partial wage replacement programs don't actually entitle employees to take leave, they can create administrative challenges for employers. 

The programs currently provide disability (including pregnancy) and paid family leave benefits consisting of 55 percent of an employee's usual wages—up to a statutory maximum. For claims beginning on or after Jan. 1, 2018, the maximum weekly benefit will increase to approximately 60 percent to 70 percent of weekly wages depending on the worker's income level. These benefits are administered through the California Employment Development Department and funded through payroll deductions.

3.    Paid Sick Leave

San Francisco was the first U.S. jurisdiction to mandate employer-provided paid sick leave beginning in 2007. Many jurisdictions in California (and other states) followed suit.  And California's statewide law went into effect in 2015.
California's law posed a special headache for San Francisco employers that found they had to reconcile the statewide law with the city's law, which was different from the state law in many key respects.

In 2016, San Francisco voters approved amendments to better align the city's law with the state's, but important differences remain on subjects such as accrual rates, carryover and frontloading.

Seven California jurisdictions currently have their own paid-sick-leave laws in addition to the statewide law: Emeryville, Long Beach, Los Angeles, Oakland, San Diego, San Francisco and Santa Monica. Berkeley will also have a paid-sick-leave law starting in October. 

When reconciling seemingly conflicting state and local requirements, remember the golden rule of employment law: The legal provision that is most favorable to employees will take precedence.

Pro Tip: Employers must inform employees of their available sick-leave balances, either on a wage statement or in a separate notice. Failure to include all required information in employee wage statements could give rise to claims under the Private Attorneys General Act—an issue we will be exploring in the second article in this series.

4.    Other Types of Leave

Challenge No. 4 is what we call California's "random" leaves of absence, which include:

  • Family military leave.
  • Leave for school or child care activities.
  • Leave to vote.
  • Jury duty leave.
  • Witness duty leave.
  • Leave for school disciplinary proceedings.
  • Bone marrow donor leave.
  • Organ donor leave.
  • Emergency responder leave.
  • Civil air patrol leave.
  • Adult literacy leave.
  • Domestic violence, sexual assault or stalking victim leave.
  • Crime victim leave for certain felonies.
  • Leave to attend court proceedings for serious crimes.
  • Election officer leave.

For some of these leaves, merely granting an employee the requested time off and reinstating the employee thereafter is not enough because the law actually requires employers to provide paid time off. This is the case for bone marrow donor leave, organ donor leave and voting time leave. HR professionals should be aware of these leave rights and how they might interact with any paid-leave benefits available to employees.

Be on the lookout for the second installment in this series, which will explore California wage and hour intricacies.

Mishell Parreno Taylor and Deidra A. Nguyen are attorneys with Littler in San Diego.

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