In honor of International Ninja Day, we’re slashing $25 off professional membership for all of you HR Ninjas! Use Promo Code NINJA25
HR Magazine is highlighting the next generation of HR leaders.
Is your employee handbook ready for the New Year? With SHRM’s Employee Handbook Builder get peace of mind that your handbook is up-to-date.
30+ HR education programs, including 4 NEW programs on hot topics, are available for registration.
Learn to implement the complex changes and ensure compliance with the FLSA. 2-Week Virtual Seminar, Nov 29-Dec 8.
Scope--This toolkit provides a general overview of various California state laws relating to managing employee medical leaves to care for employees, their family members or registered domestic partners with a medical condition. It briefly discusses paid vacation, sick time rules and paid time-off policies, or statutes in California, as often these benefits are used in conjunction with such medical leaves. It also covers California state wage replacement programs that provide for partial compensation when the employee is absent for such medical leaves. It does not encompass California laws related to other nonmedical forms of protected leave, such a voting leave, jury duty, military leave, civil service, school activity or the other protected leaves in California.
Managing medical leaves of absence in California can be a big challenge for HR professionals due to the state’s multiple leave laws and their interactions with federal laws and employer policies. California employers must consider both state and federal laws, such as the
California Family Rights Act (CFRA),
California Pregnancy Disability Leave (PDL), and the
Family and Medical Leave Act (FMLA). Medical leaves of absence typically also implicate disability leave under the
California Fair Employment and Housing Act (FEHA),
Title VII of the Civil Rights Act,
California workers’ compensation laws, and the
Americans with Disabilities Act (ADA). Although some provisions of the California leave laws mirror the federal FMLA, other provisions do not. Therefore, organizations must be aware of all statutory obligations. This article provides an overview of California leave laws and, if applicable, the interaction of these laws with the federal requirements such as the FMLA and the ADA.
Managing employees’ absences in compliance with the state and federal leave laws and employer policies or practices is a complex process. Therefore, employers are well advised to consult with an employment law attorney with experience in both California and federal leave laws when administering medical leaves.
California is known as having myriad employment laws related to
medical leaves of absence that are often more generous than federal employment laws. Compliance with these laws is critical for any organization with employees in California because liabilities for noncompliance can be costly from legal,
employee relations and employer brand perspectives.
Managing Leaves of Absence in California Is Very Complicated, Experts Say and
Tips to Untangle Leave Laws in California.
The HR professional’s role in managing leaves of absence in California is as follows:
California’s Time-Off Laws Present HR Challenges.
Many of California’s regulations provide only job protection, a few provide job protection and wage replacement, and even fewer provide wage replacement with no job protection.
This toolkit will examine the following state and federal leave laws and wage replacement regulations:
California Family Rights Act
Family Medical Leave Act (FMLA)
Pregnancy Disability Leave (PDL)
Victims of Domestic Violence Leave
Crime Victims Leave
Alcohol & Drug Rehabilitation Leave
California FEHA Disability Leave and
Americans with Disability Act Amendment
California Paid Sick Leave
San Francisco Paid Sick Leave Ordinance
Kin/Family Sick Care
Organ Donor/Bone Marrow Donor Leave
California Workers’ Compensation
Paid Family Leave (PFL)
State Disability Insurance
Employer leave of absence policies and practices
California Family Rights Act
CFRA, enacted in 1991 and amended in 1993, partly mirrors the federal
FMLA. The overall intent of the CFRA is to mandate that covered employers help employees balance work and personal medical demands while maintaining reasonable job protections. The CFRA provides job-protected medical leave for eligible employees with unpaid time off for their own serious health conditions; to care for a covered family member, including registered domestic partners, with a serious health condition; and for bonding with a newborn child, a foster child or an adopted child. Though the CFRA closely resembles the FMLA, the two laws do differ. See,
Comparison Between New Family & Medical Leave Act & Ca. Family Rights Act Regulations (PDF).
Similar to the FMLA, the CFRA applies to private employers that have employed at least 50 employees within any state of the United States, the District of Columbia or U.S. territory for 20 or more calendar workweeks during the current or preceding calendar year. The 20 workweeks do not have to be consecutive. For employee eligibility for the CFRA, the 50 employees must work within a 75-mile radius. Public agencies are covered employers without regard to the number of employees employed. Public as well as private elementary and secondary schools are also covered employers without regard to the number of employees employed.
California employers with operations in other states must count all employees when determining whether they meet the CFRA’s test of 50 employees during 20 workweeks, regardless of the number of hours worked. In addition, employees from temporary or staffing agencies or professional employer organizations (PEOs) must be counted if a joint employment relationship exists. Although the CFRA does not specifically address joint employment,
California Code of Regulations §7297.10 indicates that, barring inconsistencies with state law, the
California Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE), incorporates the federal regulations interpreting the FMLA.
§825.106 for joint employment guidance.
Employee eligibility for leave
In addition to employer coverage, the employee must meet three specific eligibility requirements to take CFRA job-protected leave:
The CFRA provides eligible employees up to 12 weeks of protected, unpaid leave in the 12-month period for the following qualifying events:
Interaction with the federal FMLA
The CFRA and the FMLA differ in many ways, and California employers must know the requirements for each. In some cases the CFRA is more generous, but in other cases the FMLA is more generous and also more expansive than the CFRA. The
California Code of Regulations §7297.10 provides that to the extent that the CFRA and the FMLA are not inconsistent, the more generous statute will apply.
Employers should be aware of the following sections in which the FMLA and the CFRA differ:
This is not exhaustive list, but it does provide some of the most important differences that will affect the majority of employers. For an exhaustive analysis, the DFEH has put together a publication called
Comparison Between New Family & Medical Leave Act (FMLA) & Ca. Family Rights Act (CFRA) Regulations. This is an excellent analysis of the differences.
Family and Medical Leave Act
In many respects the FMLA closely mirrors the CFRA, but as noted above there are many differences. Whereas the FMLA is more generous and provides more guidance than the CFRA, the CFRA in some instances provides more specific guidance. Employee’s rights are covered under both regulations.
To be eligible for job-protected FMLA leave, an employee must work for a covered employer and must meet the following requirements:
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave in any 12-month period for one or more of the following reasons:
C.F.R. 29, Part 825 The Family and Medical Leave Act of 1993 and
Comparison Between New Family & Medical Leave Act (FMLA) & Ca. Family Rights Act (CFRA) Regulations.
Pregnancy Disability Leave
California Fair Employment and Housing Act (CA-FEHA), the same state law that prohibits discrimination, provides protection for pregnancy-related disabilities.
PDL allows employees disabled by pregnancy, childbirth or a related medical condition to take up to four months (defined as 17.3 weeks or 122 days) of job-protected leave. It does not provide for any time off for the birth or placement of a child in foster care or adoption. Thus, a woman with a difficult pregnancy is entitled to up to 17.3 weeks or 122 days of disability leave (with the proper medical certification), and the employer cannot discriminate against her on the basis of the pregnancy or pregnancy-related disability. Employers should also note that additional leave time under the FEHA as a reasonable accommodation could be triggered if an employee has a qualifying disability.
PDL applies to private employers that employ at least five or more full- or part-time employees. California public employers are covered regardless of the number of employees. A not-for-profit religious association or religious corporation that is exempt from federal and state income tax is not an employer under the meaning of this act.
CFRA and the
FMLA, PDL has no length of service or
hours worked requirement before an employee disabled by pregnancy, childbirth or related medical condition is entitled to a pregnancy disability leave. Therefore, a newly hired employee is immediately eligible for such leave.
Duration of leave and qualifying events
PDL can be taken for any period(s) of actual disability caused by the employee’s pregnancy, childbirth or related medical condition, per pregnancy. A woman is disabled by pregnancy if, in the opinion of her health care provider, she is, among other things:
An employee is entitled to up to four months of PDL while the employee is disabled by pregnancy, childbirth or related medical condition. For purposes of PDL, “four months” means time off for the number of days the employee would normally work within the four calendar months (one-third of a year, or 17.3 weeks or 122 days), following the commencement date of a pregnancy disability leave. For a full-time employee who works five eight-hour days per week, or 40 hours per week, “four months” means 88 working, eight-hour days or 692 hours of leave entitlement, based on an average of 22 working days per month for 17.3 weeks in four months times 40 hours per week. Employees working a part-time schedule would have their PDL calculated on a pro-rata basis.
PDL permits an employer to require an eligible employee to obtain a certification from her health care provider of her need for PDL, or the medical advisability of an accommodation or a transfer. The certification should include:
Interaction with the FMLA and the CFRA
The PDL runs concurrently with the FMLA but with not the CFRA. Pregnancy is not covered or considered a serious health condition under the CFRA, and women with difficult pregnancies are not entitled to protected leave under the CFRA. The CFRA leave can be used by an employee only following the birth of a child to care for a healthy newborn or a newborn with a serious health condition. Instead, disabilities related to pregnancy are covered under the PDL and the FMLA, and possibly the FEHA as a disability-reasonable accommodation.
Even if an employee has no complications with her pregnancy, she could be entitled to PDL leave if she is disabled due to a pregnancy-related medical condition post-childbirth.
Comparison of the CFRA, the FMLA and the PDL
The chart below compares the provisions of all three laws.
Pregnancy disability covered as a serious health condition?
Yes, covers both pregnancy disability and birth or adoption
No requirement for a serious health condition for employee or child; birth or adoption only
Yes, covers employees disabled by pregnancy only
12 months and 1250 hours
17.3 weeks of 122 days
Protected by all anti-discrimination laws, including Title VII, ADA, Pregnancy Discrimination Act
No discrimination nor retaliation for use of leave
Pregnancy-related discrimination prohibited
Employer may require
Employer may require, but cannot require diagnosis
Employer may require (different standard than the FMLA/CFRA)
30 days if foreseeable, or as soon as practicable
Employer response to leave request
[Note: The March 2002 Supreme Court decision in
Ragsdale v. Wolverine Worldwide Inc. clarified the employer’s responsibilities in providing advance notice that leave may be counted as FMLA leave. Although the lack of advance notice does not entitle employees to more than 12 weeks of FMLA leave, employers should make a good faith effort to provide advance notice and have clear and well-communicated policies about what types of leave constitute FMLA leave.
Employment Law: The Supreme Court Reins in the FMLA (Slightly)].
Within 5 business days of an employee’s request unless extenuating circumstances
As soon as practicable, no later than 10 calendar days after an employee’s request
As soon as practicable, no later than 10 calendar days
Intermittent or reduced leave
When medically necessary, in time blocks as small as payroll system permits; for birth or adoption, must have employer’s consent
When medically necessary, in time blocks as small as payroll system permits; for birth or adoption, in two-week increments
When medically necessary, in time blocks as small as payroll system permits
Substituting paid leave
Employee may choose, or employer may require; employer need not permit use of sick leave for other than reasons specified in leave policy
Employee may choose, or employer may require; sick leave for other than employee’s own medical illness requires both employer and employee to agree
Employer or employee may require use of paid sick leave. Employee may choose to substitute paid vacation or personal leave, but employer may not require
Continuation of benefits
Employer must maintain coverage under group health plan under same condition; can require employee to pay his/her portion of the premiums
Employer must maintain group health benefits for the duration of the leave
Employer must maintain coverage under group health plan for the duration of disability period
Right to reinstatement
Same or equivalent position; key employee exception
Same or comparable position; few defenses are available, including being key employee and grievous economic injury
Same position; few defenses are allowed to deny reinstatement
Posting PDL notices
Organizations must post notices about employees’ right to PDL and give an employee a copy of the appropriate notice as soon as practicable after the employee tells the employer of her pregnancy. Notices can be electronically posted, but they also need to be in employee handbooks. The DFEH has drafted two different notices, depending on whether organizations have greater or fewer than 50 employees and thus are also covered by the CFRA, which allows for baby bonding leave. Organizations can either develop their own notice or use the notices provided by the DFEH:
Time Off for Victims of Domestic Violence or Sexual Assault
California Labor Code §230.1 requires an employer with 25 or more employees to provide victims of domestic violence or sexual assault unpaid time off for up to 12 weeks to obtain help from a court; to seek medical attention; to obtain services from an appropriate shelter, program or crisis center; to obtain psychological counseling; or to participate in safety planning, such as permanent or temporary relocation.
Labor Code §230 and §230.1 currently prohibit an employer from discharging or discriminating or retaliating against an employee who is a victim of domestic violence or sexual assault for taking time off from work in connection with court proceedings or to seek medical attention and other specified services as a result of these crimes against them.
Effective January 1, 2014,
SB 400 further extended the time-off protections to include employees who are victims of stalking. The law further prohibits discharge, discrimination and retaliation against employees because of their status as victims of domestic violence, sexual assault or stalking if the employees/victims provide notice to their employers or the employers have actual knowledge of this status.
Employers are also required to provide reasonable accommodations to employees who are victims of domestic violence, sexual assault or stalking and who request an accommodation for their safety while on the employer’s premises.
Reasonable accommodations may include the implementation of safety measures, such as:
As with disability accommodations, employers are required to engage in a timely, good faith interactive process with the employee to determine effective reasonable accommodations.
An employer may request that an employee provide a written certification that the employee is a victim of domestic violence, sexual assault or stalking, and that the requested accommodation is for the safety of the victim while at work. The employer may request recertification every six months. Any documentation provided to an employer identifying an employee as a victim of domestic violence, sexual assault or stalking must be kept confidential and must not disclosed by the employer except as required by law or as necessary for the safety of employees in the workplace. The employer must give the employee notice before any disclosure of the information is made.
The employee may request a new accommodation based on changed circumstances, and in such a case, the employer must repeat the interactive process with the employee.
Employees are required to notify their employers when an accommodation is no longer needed.
Employers are prohibited from retaliating against an employee who has requested a reasonable accommodation, whether the request was granted or not. SB 400 authorizes reinstatement, back pay and injunctive relief for violations of the law.
Voluntary Drug or Alcohol Rehabilitation Leave
Employers with 25 or more employees must provide unpaid time off for employees voluntarily attending drug or alcohol rehabilitation programs absent undue hardship on the employer as a form of reasonable accommodation. The law does not provide a specific amount of time off; instead, the length of the leave is determined to be reasonable. Sometimes, the length of the rehabilitation program is used to determine what is reasonable. Employees may use accrued paid sick leave, and the employer may permit the use of PTO or vacation leave. This type of leave may run concurrently with the FMLA or the CFRA.
California Labor Code §1025.
Interaction with the FMLA, the CFRA and the ADA
This type of time off may also be covered by the
FMLA or the
CFRA if the employee is otherwise eligible and has a serious health condition. If so, employers should follow the approval and medical certification process under the FMLA or the CFRA and inform the employee that the time off is designated as FMLA or CFRA time. The two leave obligations may run concurrently.
Alcoholism and drug addiction may be covered under the
DFEH disability regulations and the
Although a current illegal user of drugs is not protected by the ADA nor under the DFEH disability protections, if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection. An alcoholic is a person with a disability and is protected by the ADA and DFEH if he or she is qualified to perform the essential functions of the job. However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer may also prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.
An employer may be required to provide an accommodation to an alcoholic, such as a leave of absence when the employer has between five and 25 employees, based on the DFEH disability regulations and on the ADA.
Drug and Alcohol Rehabilitation Leave and
Time Off for Crime Victims
California Labor Code §230.2 requires all employers to provide unpaid time off for employees who are victims of certain crimes or whose immediate family members are victims of certain crimes. The crimes include violent felonies defined by
Penal Code §667.5(c) or serious felonies defined by
Penal Code §1192.7(c), as well as felonies related to theft or embezzlement.
Labor Code §230.5 allows an expanded list of employee/crime victims to take time off to appear in court to be heard at any proceeding, including any delinquency proceeding, a post-arrest release decision, plea, sentencing, post-conviction release decision or any proceeding in which a right of the victim is at issue, in connection with any of the following offenses:
The law defines “victim” broadly to include any person who suffers direct or threatened physical, psychological or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term “victim” also includes the employee’s spouse, parent, child, sibling or guardian.
The employee is required to provide reasonable advance notice to the employer “unless the advance notice is not feasible.” Employers are strictly prohibited from taking any adverse action against an employee as a result of an unscheduled absence related to the specified court proceedings if the employee provides certification of the court-related absence within a reasonable period of time after the absence. Time off for attendance at one of the specified court proceedings is unpaid, but an employee has the right to use accrued vacation or other PTO to cover the absence.
Employers are further prohibited from discharging or in any other manner discriminating or retaliating against an employee for taking time off in connection with one of the specified court proceedings.
Crime Victim and Witness Leave LC 230.2.
Disability Leave as a Disability Accommodation
Employers with 5 or more employees, under the
FEHA disability regulations, and California employers with 15 or more employees, under the
ADAAA, may need to provide an employee with a disability requiring time off as a form of a reasonable accommodation. Length is not specified and is on a case-by-case base. Reinstatement is generally guaranteed subject to undue hardship exception.
Healthy Workplaces, Healthy Families Act of 2014/California Paid Sick Leave
As of July 1, 2015, the
Healthy Workplaces, Healthy Families Act of 2014
will require almost all employers with employees in California to provide their employee(s) with paid sick leave. This act provides for job protection as well as for employer paid leave.
The California paid sick leave applies to all employers regardless of size that have at least one employee that works more than 30 days in one calendar year. The law also applies to employers based outside of California with employees who work 30 or more days within a year in California.
The law applies to all full-time, part-time and temporary employees. The law does not cover a few narrow categories of workers, including those covered by collective bargaining agreements and those who provide in-home supportive services.
Upon oral or written request the employer must allow employees to use their accrued sick leave for the following:
“Family member” is defined as including:
Employees accrue paid sick days at the rate of one hour for every 30 hours worked, beginning at the start of their employment to a maximum accrual of 24 hours per year. Employees can use accrued paid sick days beginning on the 90th day of employment. Employers can offer more generous sick leave plans if they wish.
In addition, employees must have their sick leave balance that has accrued but unused carry over from year to year, although accrual can be capped at 48 hours. Employers can also prohibit employees from using more than 24 hours of sick time per year, even if they have accrued more time. Accrued paid sick time is not required to be paid out upon termination of employment; however, it must be reinstated to the employee if he or she is rehired within twelve months.
California Paid Sick Leave, CA AB 1522.
Interactions with other regulations
Employers that already provide paid leave (such as paid time off, vacation or personal time) in amounts greater than 24 hours a year do not have to offer any additional paid time off as long as the employee is allowed to take the time off for the same reasons covered in this bill. However, employers should ensure that they are tracking employee sick leave use and provide written notice on the employee’s wage statement or paystub with the available balance. In addition, all employers must comply with additional record-keeping, notice and posting requirements. Failure to keep the required records creates a presumption against the employer that the employee is entitled to the maximum number of hours provided for under the law.
Employers are required to permit employees to use a minimum of one-half of any available accrued sick leave per year for the purpose of attending to a child, parent, spouse, registered domestic partner or child of the employee’s registered domestic partner who is ill.
California Kin Care CA Labor Code §233.
California paid sick leave, the CFRA and the FMLA
Although an employer is not required to pay an employee during a CFRA leave for a family member, an exception is when an eligible employee elects, or the employer requires the employee, to use any accrued vacation time or other accumulated paid leave other than accrued sick leave.
However, if CFRA leave is for the employee’s own serious health condition, the employee may elect, or the employer may require the employee, to use any accrued vacation time or other accumulated paid leave, including any accrued sick leave. Additionally, the employee may elect to use accrued sick leave for any other reason mutually agreed to by the employer.
California Family Rights Act.
With the broader definition of “family member” the employee may be entitled to time off under the California paid sick leave that would not count against the employee’s CFRA or FMLA protected leave time.
California paid sick leave, SDI, PFL and workers’ compensation
Any accruals the employee has on record for the California paid sick leave or an employer’s paid sick leave program can be used for the waiting periods associated with state disability insurance, paid family leave and worker’s compensation wage replacement programs.
California paid sick leave, domestic violence and victims of crimes
Any accruals the employee has on record for the California paid sick leave or an employer’s paid sick leave program can be used for time off to appear in court as a victim or witness, to obtain any relief, or to help ensure the health, safety or welfare of the employee or his or her child.
San Francisco Paid Sick Leave Ordinance
San Francisco adopted a paid sick leave ordinance to ensure that employees have adequate sick leave available to live a healthy, productive lifestyle. This law, effective Feb. 5, 2007, mandates all employers to provide paid sick leave to employees working in San Francisco, although the amount of sick leave provided varies by size of the employer.
San Francisco Paid Sick Leave (City and County Ordinance).
The San Francisco Administrative Code references
California Labor Code §18 for the definition of “employer,” basically encompassing all employers. The law makes a distinction between small employers—defined as those with fewer than 10 employees during any week—and all other employers for the purposes of a paid sick leave cap per employee. In determining the number of employees in any given week, employers must count all employees regardless of hours worked by the employees and including those employees working outside San Francisco. Both small and other employers must provide one hour of paid sick leave for every 30 hours worked. However, the requirement to provide paid sick leave applies only to employees working in San Francisco.
Eligible employee and sick leave accrual and use
Employees working for employers outside the San Francisco area are not covered under this law. Employees hired by an employer in San Francisco do not have to start accruing sick leave until 90 calendar days after their hire date irrespective of the location of work during the 90-day period. Of course, the employer may offer a more generous policy.
Employees accrue one hour for every 30 hours worked up to the cap of 40 hours for small employers or 72 hours for employers with 10 or more employees. The cap on hours is not calculated on an annual basis. Rather, at any given time, an employee may have an available bank of accrued paid sick leave of only 40 hours or 72 hours.
Office of Labor Standards Enforcement’s FAQ (PDF).
Employees must be permitted to use the mandated paid sick time for their own illnesses or to care for a child, parent, spouse or registered domestic partner with an illness. For employees without a spouse or registered domestic partner, an employee may designate one other individual to use the mandated sick leave to care for. Employers must notify the employee of the opportunity to make such a designation no later than 30 work hours after the paid sick leave begins to accrue. The employee has 10 workdays to designate the individual and must be given the opportunity to change the designation annually within 10 workdays.
The following provisions also apply:
Wage Replacement and Paid Leave Rights
Though the laws discussed thus far provide California employees with job-protected leave, the state also has several laws regarding wage replacement for employees on family or medical leave. These laws do not provide the right to leave, with the exception of San Francisco’s paid sick leave. Instead, the laws provide potential rights to the payment of wages for employees taking such leave. Therefore, employers need to be cognizant of these laws when managing leave for employees in California.
California employers are not required to provide paid vacation/PTO to employees. The Healthy Workplaces, Healthy Families Act requires paid leave for many employers. Additionally, San Francisco law addresses paid sick leave. California employers offering such vacation or PTO leave must comply with California law and rules of the
California Department of Industrial Relations, Division of Labor Standards Enforcement.
Kin Care Leave
Kin care does not provide additional leave, but it does require employers that provide paid sick leave to permit employees to use up to half of their accrued annual sick leave benefits to care for a sick family member, including a child, parent, spouse, registered domestic partner or child of a domestic partner. This law applies to all California employers—both public and private, regardless of number of employees—that provide sick leave to their employees. It does not require employers to provide paid sick leave benefits; rather kin care is a right granted to eligible employees. Leave taken under kin care is protected and may not be “counted against” or used as a basis for
disciplining an employee for
absenteeism. However, all general conditions and restrictions placed by the employer on the use of paid sick leave by an employee 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.
Generally, kin care would apply to accrued increments of compensated leave provided by the employer to the employee for doctor appointments, if the employee is physically or mentally unable to perform duties due to illness,
injury or a medical condition, or absences for other medical reasons. Therefore, in addition to traditional sick leave banks, this law would apply to combined PTO plans as well. However, the law does not apply to uncapped sick leave plans. Leave taken under kin care can run concurrently with an absence qualifying for the FMLA or the CFRA.
California Labor Code §233 and
Calif. ‘Kin Care’ Provision Does Not Apply to Uncapped Sick Leave Plans.
Organ and Bone Marrow Donor Leave
This paid leave law applies to private and public employers with at least 15 employees. Unlike the leave laws previously mentioned, this law does not specify the number of weeks in a year that the employer must employ 15 employees. The law requires employers to provide up to 30 days of paid leave per year for an organ donation in any one-year period, and up to five days of paid leave per year for a bone marrow donation. The leave may be taken in one or more periods of absences, but the combined total may not exceed the 30- or five-day maximum.
Bone Marrow/Organ Donor Leave.
The law references the definition of “eligible employee” from
California Labor Code §1501, which states that an employee is defined as an individual with at least a 90-day period of employment with the employer immediately preceding the date of leave.
Employers must maintain group health plan coverage under the same condition as if the employee had been actively at work during the leave period. In regard to other benefits, the employer must continue to treat the employee as continuously employed during this leave period for the purpose of his or her right to salary adjustments, sick leave, vacation, PTO, annual leave or seniority.
Substitution of paid leave
Employees may be required to take up to two weeks earned sick or vacation leave for organ donation and up to five days for bone marrow donation.
State employees who have exhausted all available sick leave must be permitted to take a leave of absence with pay for up to 30 days for the purpose of organ donation and up to five days for bone marrow donation. Employers must pay employees for the leave time if paid leave has not yet been earned or if it is exhausted.
The following is a list of other general provisions of the law:
An employee’s right to workers’ compensation coverage is triggered by notification of a claim and Worker’s Compensation Medical Provider certification.
California Workers’ Compensation.
Workers’ compensation insurance provides six basic benefits: medical care, temporary disability benefits, permanent disability benefits, supplemental job displacement benefits or, vocational rehabilitation and death benefits.
State workers’ compensation law applies to all employers and employees. Workers’ compensation provides paid benefits for lost wages and medical expenses for work-related injuries. The statute,
Labor Code §132a, also protects an injured employee’s job. Labor Code §132a makes it a misdemeanor for an employer to discriminate in any way, including discharge or threat of discharge, against an employee who has filed or is thinking about filing a workers’ compensation claim or an employee who has received a workers’ compensation award.
While the employee is on workers’ compensation medical leave, the employer should treat the leave as a job protection under the CFRA and FMLA as well. After leave is exhausted under the CFRA and the FMLA, employers will likely need to proceed into the interactive disability accommodation discussion to determine if additional leave can be accommodated. In very limited cases of “business necessity,” employers may replace and not reinstate an employee on workers’ compensation medical leave; however, employers are strongly advised to seek legal counsel before doing so due to the protections of Labor Code §132a and history of litigation associated with such terminations. See,
Labor and Employment Law in the State of California, Fisher Phillips (PDF) and
Basics of California Workers’ Compensation (PDF).
California Wage Replacement Programs
Paid Family Leave (PFL) benefit and State Disability Insurance (SDI) benefits are paid through funds collected by payroll taxes. The California
EDD administers the process. The employee is responsible to apply for the benefits online. The employer only has to set up access to the system and respond to requests for information as well as provide information to the employee of the benefit. Below is an overview for the employer to understand what the employee is entitled to as well as the employer compliance requirements. These are only wage replacement programs and do not provide job protection. However, other state and federal statutes may provide job protection.
Paid Family Leave Benefits
PFL is a component of California’s SDI program. For California workers covered by SDI (or a voluntary plan for SDI), PFL insurance provides up to six weeks of benefits for individuals who must take time off for the following reasons:
For bonding, PFL is limited to the first year after the birth, adoption or foster care placement of a child.
Employees are not eligible for PFL if:
Additionally, an individual is not eligible for PFL benefits for any day that another family member is able and available for the same period of time that the individual is providing the required care.
California Paid Family Leave Eligibility.
There is no time-in-job requirement for eligibility for the California PFL. In addition, the PFL provides no job protection. It is a wage replacement-only program to care for a family member or to bond with a new child.
Definition of serious health condition
A “serious health condition” is defined as an illness, injury, impairment, or physical or mental condition of a patient that involves inpatient care in a hospital, hospice or residential medical care facility. This includes any period of incapacity (e.g., inability to work, attend school or perform other regular daily activities), any subsequent treatment in connection with such inpatient care, or continuing treatment by a physician or practitioner. Unless complications arise, cosmetic treatments, the common cold, influenza, earaches, 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.
Certification for PFL
A medical certificate is required when a PFL claim is filed to provide care for a seriously ill family member. The certificate must include a diagnosis and International Classification of Diseases code, the beginning date of the disability, the probable duration and the estimated time that care will be needed. The certificate must also state that the serious health condition warrants the participation of the employee to provide care, including offering psychological comfort and arranging third-party care.
A separate certification must be completed for leave associated with the birth, adoption or foster care placement of a child.
certification process is completed online by the employee, physician and employer.
The employee is responsible for obtaining a physician/practitioner certification for his or her disability. The claim will be returned if the physician/practitioner certification is not received within 30 days. The employee must provide the receipt number to his or her physician/practitioner after the employee has filed the claim. Although the employer will be notified that an employee has submitted a DI or PFL claim, the employee’s detailed claim information is confidential and will not be shared with the employer.
The benefits of the PFL program are paid through the EDD. There is a seven-day waiting period before benefits are paid. In addition, the employer may require the employee to use up to two weeks of vacation leave or PTO prior to receiving benefits. The first week of vacation or PTO is applied to the waiting period. In the absence of an employer PTO or sick plan, an employee may, as of July 15, 2015, use his or her legally accrued sick pay. No more than six weeks of PFL benefits may be paid within any 12-month period. PFL benefits are subject to federal income tax but are not subject to California income tax.
AB1522 California Paid Sick Leave—Healthy Workplaces, Healthy Families Act of 2014.
Employer PFL notice requirements
Employers must provide the
Paid Family Leave (DE 2511) brochure to new employees and employees who request leave to care for a seriously ill family member or to bond with a new child. Employers are not required to provide the PFL insurance claim forms to their employees.
Interaction with paid sick leave
The law gives an employer the discretion (option) to require an employee to take up to two weeks of earned but unused vacation leave when the employee is requesting PFL. However, the law does not authorize employers to require the use of sick leave in lieu of vacation.
Interaction with the FMLA and the CFRA
FMLA and the
CFRA are federal and state leave laws, respectively, that allow employees to take up to 12 workweeks of unpaid leave from their jobs in a 12-month period to care for themselves or family members who are ill, or for children who are unable to take care of themselves. PFL does not change either law in any way and is completely separate from them. PFL merely provides up to 6 weeks of paid benefits to an employee who suffers a wage loss when taking time off work to care for others.
Job protectionPFL does not protect the employee’s job. It simply provides partial wage replacement when an employee cannot work due to the need to care for a child, parent, spouse or registered domestic partner, or to bond with a new child. An employee may have his or her job protected under other laws, such as the FMLA or the CFRA.
State Disability Insurance
SDI, administered by the
California EDD through the state’s unemployment compensation disability program, provides partial wage replacement for employees unable to work due to the employee’s own nonwork-related sickness or injury for up to 52 weeks. This program is funded by employee contributions in the form of a state
tax through payroll deductions. There are no employer contributions for the state plan. However, the law permits employers to establish a private short-term disability plan, either insured or self-insured, that is equal to or better than the state plan. The employer must receive EDD’s approval of the plan, and the majority of employees must agree to the voluntary plan as opposed to the state disability plan.
Although there are a few differences in voluntary versus state plans, for ease of understanding, the information provided below is based on a state disability plan.
Employer coverage and employee eligibility
An employer is an entity with one or more employees in the current or preceding calendar year that has paid wages exceeding $100 in any calendar quarter. According to the EDD, an employee is eligible if the following criteria are met:
Length and amount of benefit
Generally, employees may obtain up to 52 weeks of full SDI benefits, or the amount of wages in the base period, whichever is less. The base period covers four quarters, basically the wages an individual earned in the previous five months to 18 months prior to the SDI claim. Employees receive about 55 percent of the highest quarter earnings of the base period up to the maximum benefit amount. There is a seven-day wait period before benefits are payable.
California Unemployment Insurance Code, Part 2. Disability Compensation.
Interaction with other laws
Below are the ways in which California SDI relates to other laws:
Interaction with employer-paid vacation and sick leave policies
Employers can require employees to use paid leave during the seven-day waiting period.
Vacation is not considered wages for SDI benefits. Therefore, employers can require or allow employees to use vacation while receiving SDI benefits. However, both the FMLA and the CFRA prohibit employers from requiring employees to substitute paid leave if the employee is receiving wage replacement benefits under SDI or workers’ compensation, except during the wait period or to supplement the difference in full wages versus partial wage replacement. Employers or employees may require the use of paid sick leave during leave for PDL; employers must allow, but may not require the use of paid vacation or personal leave during PDL leave.
SDI pays only a portion of employee’s regular earnings, approximately 55 percent. Therefore, employers may require or permit employees to supplement SDI with PTO or sick time, up to 100 percent of the employee’s regular pay as long as the employer has a policy requiring employees to supplement benefits payments and the PTO or sick leave policy permits the use of the paid leave for the purpose the employee is taking the leave.
Employers must post EDD
Form DE 1857A if covered under both SDI and unemployment compensation laws. If the employer is covered only under SDI, it should post
Form DE 1858. If the employer is covered only under unemployment, it should post
Form DE 1857D.
Employers must also provide employees with the following documents:
These forms or pamphlets (in a variety of languages) can be downloaded from
Disability Insurance—Forms and Publications, except Form DE 2503, which the state sends to the employer.
Other Employer Policies and Practices
Employers can define their own policies and practices; however, those practices must meet the compliance threshold as outlined by various regulations. In addition, an employer may as a competitive practice offer more generous programs than are allowed by law, but nothing in an employer handbook, practice or policy can deny an employee his or her statutory rights.
Vacation and PTO
Paid vacation and PTO are considered a form of wages in California that are earned while working, if employers offer paid vacation or PTO. Employers must pay earned, unused vacation or PTO (or any paid day that can be used for any reasons) at the end of employment, whether termination is voluntary or involuntary, unless the vacation or PTO plan is covered under the
Employee Retirement Income Security Act (ERISA). Once earned, vacation or PTO time (or any paid day that can be used for any reasons) cannot be forfeited. In other words, use-it-or-lose-it policies are prohibited in California. However, employers can place a reasonable cap on the accrual of vacation. The
DLSE will look at several factors to determine if a cap is reasonable:
Employers may cap the maximum amount of vacation days that an employee may accrue, but under applicable case law the cap must be “reasonable.” The DLSE historically opined a worker must have at least 9 months after the vacation accrues before a cap will be deemed effective, and it was recommended that any cap should be 1.75 times the annual accrual rate. In March 2006, the Labor Commission issued a new manual and withdrew its prior opinion letters on the issue. The current enforcement position suggests the DLSE has adopted a less stringent approach as to what constitutes “reasonable.” The DLSE manual currently states that vacation policies that require vacation to be used in the year it is earned “or in a very limited time following the accrual period” will not be enforced. Thus, a cap of 1.5 times the annual vacation accrual may be enforceable. However, an employer providing a cap under 1.75 is exposing itself to legal risk since the law is unclear. Many employers maintain a cap of 1.75 times the annual accrual rate to minimize risk.
Employers do have latitude in policy development regarding the amount of paid vacation provided, when employees begin earning vacation and when employees may take vacation.
Employers are encouraged to have clearly written vacation and PTO policies that have been reviewed with legal counsel to ensure compliance with the laws and rulings. Paid sick time is not considered wages and is not due at termination.
Federal law and California law require employers to communicate legal rights to employees by means of posters or pamphlets and, in some instances, text in
employee handbooks. Employers must post both federal FMLA and CFRA requirements and distribute required pamphlets for applicable laws. Copies of the required postings are available at the
California Department of Industrial Relations website.
Templates and Tools
Agencies and organizations
1Fair Employment and Housing Commission. (n.d.).
Comparison between new Family & Medical Leave Act (FMLA) & Ca. Family Rights Act (CFRA) regulations. Retrieved from http://www.dfeh.ca.gov/res/docs/ppt/fmla-cfra_regs_table-1.pdf
2California Assembly Bill No. 1522. (2014). Retrieved from https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1522
The HR Knowledge Center has gathered resources on current topics in HR management.
Click here to view and request information.
All of the content on this page, including content associated with Express Requests, is for informational purposes only and not for the purpose of providing legal advice. You should always contact your attorney to determine if this information, and your interpretation of it, is appropriate to your particular situation.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Your session has expired. Please log in again before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
HR Education in a City Near You
SHRM’s HR Vendor Directory contains over 3,200 companies