Managing Coronavirus-Related Leave in California

Employers may see a spike in coronavirus-related leave requests as more employees are called back to work, and California HR professionals must note the interplay between federal, state and local leave laws.

"Human resources professionals have really rose to the challenges of these times," said Jonathan Siegel, an attorney with Jackson Lewis in Orange County. "They've been presented with so many hurdles and are showing how critical they are as business partners."

In additional to paid sick leave, employees may be entitled to leave under the Family and Medical Leave Act (FMLA), the Families First Coronavirus Response Act (FFCRA) and the California Family Rights Act (CFRA).

"A good rule of thumb for California employers is always to take into account the most protective statute or regulation that may apply and follow it," said Martha Doty, an attorney with Alston & Bird in Los Angeles.

Scott Witlin, an attorney with Barnes & Thornburg in Los Angeles noted that California employers tend to face greater challenges than employers in other jurisdictions and must carefully monitor and document leave requests. In addition, he said, they should pay attention to guidance from the Department of Fair Employment and Housing about how FFCRA leave interacts with California law and look for more updates.

Managing Leave Requests

Under the FFCRA's Emergency Family and Medical Leave Expansion Act, an eligible employee who is unable to work or telework may take leave to care for a child whose school or daycare has been closed due to a COVID-19-related emergency declared by a federal, state or local authority. An employee may also be eligible for two weeks of paid sick leave for coronavirus-related reasons under the FFCRA or paid sick leave under state and local laws.

Additionally, the FMLA and CFRA provide covered employees with up to 12 weeks of job-protected time off to care for themselves or a covered relative with a serious health condition. Under California law, employees may also take leave to care for a registered domestic partner who has a serious health condition.

Employers should note that the FFCRA adds a new qualifying reason to the FMLA (coronavirus-related childcare leave), and a pay component for that leave, but not additional time off.

"Your leave entitlement for emergency paid family leave under the FFCRA will depend in part on how much FMLA leave you have already taken," said Caroline Powell Donelan, an attorney with Blank Rome in Los Angeles. In contrast, emergency family leave taken under the FFCRA cannot run concurrently with an employee's leave entitlement under the CFRA because "caring for a child as the result the child's school closing or the closing or unavailability of the childcare provider" is not yet a qualifying reason for CFRA leave.

But CFRA leave may be available for other coronavirus-related reasons. "There is certainly overlap between COVID-19 related illness and leave entitlements under the CFRA," Donelan noted.

COVID-19 can qualify as "a serious health condition" sufficient to trigger CFRA protection if it results in inpatient care or continuing treatment or supervision by a health care provider, she explained. An illness like COVID-19 may also qualify as a serious health condition if it leads to other complications, such as pneumonia.

Everyone is so focused on COVID-19 symptoms, Siegel observed, but they should also be looking for secondary conditions stemming from the same symptoms. "If something turns out not to be COVID-19, everyone breathes a sigh of relief, but it could be something else that's covered." 

Flexibility and Consistency

"It's very likely during the coronavirus pandemic that there will be new types of leave requests that employers may not have previously encountered," Doty said. Employers should be prepared to review whether such requests properly fall under not just the CFRA but also the FMLA and emergency leave under the FFCRA and follow those statutes in the way most protective of an employee's leave rights.

Siegel noted that employers likely already have software that tracks FMLA and CFRA leave, and they may need to update their systems to track FFCRA leave, too. "That's something you have to keep in mind," he said. 

While these new and different types of leave requests may require greater flexibility, employers must also be consistent in how they apply the statutes to workers' leave requests. "Be flexible, but also be consistent," Doty suggested.

For instance, Doty said, each request for leave for childcare issues will likely present a unique family and childcare situation, and employers will need to strive to ensure they don't display favoritism or biases in their responses to the requests. As an example, she said employers shouldn't deny a male employee's leave request for childcare reasons because of an outdated view that he isn't the primary caregiver.

Michelle Barrett Falconer, an attorney with Littler in San Francisco, said employers can go through the very technical analysis of whether an employee qualifies for leave, but they shouldn't be too restrictive. Under CFRA, employers can still require certification and documentation, but obtaining that information may be difficult as the pandemic persists.

"As an employer, your operating assumption should be that everyone in your workforce will take some kind of COVID-related leave this year, so proper planning is critical," Donelan said. HR leaders should properly equip their team and ensure messaging and administration are uniform and compliant.

"Now more than ever, employees are looking to their employers for clear and consistent information and guidance," Donelan said. "Be patient and transparent with your workforce to engender trust and loyalty as we all navigate this new normal together."