When Are California Employees Eligible for Leave?

To qualify for family and medical leave under federal and state law, California employees must work for their employer for a certain time period. But employers in the state should note that workers may be eligible for other types of leave—even on their first day of employment. Here's what employment law attorneys told SHRM Online.

Under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), covered employees can take up to 12 weeks of unpaid leave in a 12-month period for certain specified reasons, such as to care for their own or a family member's serious health condition or for baby bonding.

Employees are eligible to take leave if they work at a location where there are 50 or more employees within 75 miles, have worked for their employer for at least 12 months and have worked at least 1,250 hours in the previous 12 months.

Even if an employee doesn't qualify for family and medical leave, an employer may have an obligation to provide leave under the Americans with Disabilities Act (ADA), California's Fair Employment and Housing Act (FEHA) or pregnancy disability leave law, explained Charles Thompson, an attorney with Ogletree Deakins in San Francisco.

Disability Laws

Employers should pay particular attention to disability laws that may provide workers with time off as an accommodation if they are not eligible for FMLA or CFRA, or if they have exhausted their leave under those laws. For example, even if an employee hasn't worked for the employer for the 12 preceding months, businesses must consider whether to offer leave as a reasonable accommodation for a disability, said Marissa Hurwitz Alguire, an attorney with Akerman in Los Angeles.

Under FEHA and the ADA, employers must engage in an interactive process—conversations with the employee—to determine whether a reasonable accommodation can be made for a worker with a disability.

The ADA applies to employers with 15 or more workers, and FEHA's disability protections apply to organizations with five or more employees.

Though FEHA's coverage is more expansive, both laws generally prohibit employers from discriminating against employees with physical or mental impairments who can perform the essential functions of the job, either with or without a reasonable accommodation.

The employer should initiate the interactive process when it has reason to believe an accommodation is necessary, Thompson said. The employer needs to document the process and should consult with counsel before deciding that it can't reasonably accommodate an employee, he added.

Employers should be well prepared for discussions, and they should know what is off-limits to discuss, Alguire said. For example, under FEHA, employers can't ask about the nature or severity of a disability.

Additionally, employers should make the process transparent and should be open to the employee's input, noted Robert Conti, an attorney with Littler in Irvine, Calif.

Note that workers in California may also be eligible for up to four months of pregnancy disability leave (PDL) for pregnancy, childbirth and related medical conditions. The state's PDL law covers employers with five or more employees, and workers do not have to be employed for a certain amount of time before using such leave.

Other Leave Laws

There are a host of other leave laws that may provide employees with job-protected time off, even if they haven't been employed for long. Employers should be aware of workers' leave rights, including leave related to:

• The Uniformed Services Employment and Reemployment Rights Act.
  
• California's military leave law.
  
• Workers' compensation.
  
• Jury duty.
  
• Witness duty.
  
• Testimony as a victim of a crime.
  
• Testimony as a victim of domestic violence.
  
• Child activities (such as school-related activities).
  
• Voting.
  

Furthermore, employees may be eligible to take paid sick leave and organ and bone marrow donor leave after 90 days of employment.

There is also technically no eligibility period required to place an employee on a leave of absence to address issues related to a workplace investigation, such as a harassment investigation, Alguire noted.

Avoiding Mistakes

Employers should train supervisors to contact HR immediately when an employee asks for leave, tells a supervisor about a disability or requests an accommodation, Thompson said.

For consistency, employers should use standard forms that they provide to employees and their health care providers in leave of absence situations, he added.

Employers need to make sure they are using California compliant forms, because federal forms may ask for information that isn't permitted in the state, Conti noted.

Alguire made the following suggestions for employers:

• Do your math and keep good records. Employers often fail to carefully maintain leave-related records or accurately track leave eligibility and actual leave dates. When employers are unclear on which employees are eligible for leave and when they are due back, they can make mistakes when calculating eligibility requirements and ultimately applying their leave policies. 
  
• Use your words. The lines of communication must remain open between the department handling leaves and the other departments that are involved in employee discipline and termination. For example, it is always prudent to know the risk in terminating—or in some cases even contacting—an employee out on leave, and this is not always possible when the departments are not in regular contact. 
  
• Create a paper trail. While it may be difficult to maintain communication with employees who are out on leave, it is essential to continue to do so and to be clear in written correspondence on leave-related deadlines and their ramifications.
  

Also keep in mind that outsourcing leave administration does not eliminate an employer's responsibilities and liabilities, Alguire noted.