With the many leave types available to employees, it is important to understand the possible employee entitlement and the requirements that an employer may face when a request is received.  Each scenario should be reviewed independently. Questions such as use of accrued time, continuation of benefits and reinstatement are but a few aspects that should be reviewed and communicated to the employee.  

Some of these questions are answered by labor law others by company policy.  

The following is a brief overview of the various leave types, aside from company specific leaves, that you may face as an employer: 

LEAVE TYPES 

Family and Medical Leave Act (the FMLA): 50+ Employees

  • Eligibility: At least 1 year of employment (not necessarily continuous); at least 1250 hours worked in the past 12 months.
  • Maximum Length of Leave: 12 weeks in a rolling 12-month period measured backward from the date an employee uses any FMLA leave.

Reasons for Leave:  

  The employee’s own serious health condition.
  Caring for a parent, spouse, or child with a serious health condition.
  Birth and bonding with a newborn – within one year of birth.
  Placement for adoption or foster care of a child – within one year of placement.

Certification: May require, however, information needed differs for own medical condition; required within 15 calendar days of the employer’s request for certification. 

Health Benefits:  Continued for 3 months, during which employee and employer are responsible for normal portions paid. 

Vacation / PTO Use: May require use for own employee’s illness or for family leave if company policy states. 

Sick Time: May require use for employee’s own illness. Cannot require for family member or baby bonding leave. Able to use by mutual consent for employee and employer. 

Runs Concurrently with Other Leave Types:  Can run concurrently with PDL.

Reinstatement:  Reinstatement to a “comparable position”. Employment in a “comparable position” means employment in a position that is virtually identical to the employer’s original position in terms of pay, benefits, and working conditions, including privileges, fringe benefits, and status. It must be performed at the same or a geographically close worksite from where the employee previously was employed. 

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The California Family Rights Act (CFRA) 5+ Employees 

Effective January 1, 2021, CFRA was expanded to cover businesses with 5 or more employees, which will require most small business to comply. The definition of family member for whom employees may take protected leave was also expanded which now creates potentially more protected time for an employee of a large company (50 or more) depending on the reason for the leave.  

The CFRA’s definition of “family member” includes child (including an adult child), parent, parentin- law, grandparent, grandchild, sibling, or spouse or registered domestic partner.     

  • Eligibility: At least 1 year of employment (not necessarily continuous); at least 1250 hours worked in the past 12 months. 
  • Maximum Length of Leave: 12 weeks in a rolling 12-month period measured backward from the date an employee uses any CFRA leave.  

Reasons for Leave:  

The employee’s own serious health condition.

Employee’s qualified family member’s serious health condition.

Birth and bonding with a newborn – within one year of birth.

Qualifying military exigency.

Certification:  May require, however, information needed differs for own medical condition; required within 15 calendar days of the employer’s request for certification. 

Health Benefits:  Continued for 3 months, during which employee and employer are responsible for normal portions paid. 

Vacation / PTO Use: May require use for own employee’s illness or for family leave if company policy states. 

Sick Time: May require use for employee’s own illness. Cannot require for family member or baby bonding leave. Able to use by mutual consent for employee and employer. 

California Pregnancy-Related Disability Leave Law  

(PDL): 5 or more employees 

  • Eligibility: First day on the job. 
  • Maximum Length of Leave: Four months (days normally worked within four months) for each pregnancy. 

Reasons for Leave: Disabled by pregnancy in the opinion of her health care provider.  Leave may be intermittent or on a reduced work schedule. 

Certification: Required notice of at least 30 days prior to PDL. 

Health Benefits: Maintained at same level of the duration of the Pregnancy Disability Leave. 

Vacation / PTO Use: Not required to use, may use at employee’s option. 

Sick Time: Required to use accrued sick time. 

Runs Concurrently with Other Leave Types: Can run concurrently with FMLA. 

Reinstatement:  Reinstatement to a “comparable position”. Employment in a “comparable position” means employment in a position that is virtually identical to the employer’s original position in terms of pay, benefits, and working conditions, including privileges, fringe benefits, and status. It must be performed at the same or a geographically close worksite from where the employee previously was employed. 

Paid Sick Leave (CA) 

The Healthy Workplaces, Healthy Families Act of 2014 has been in effect since July 1, 2015, requiring paid sick leave for employees in California.  

  • Eligibility: All employees who work in CA 30 days or more within a year. Available to use on the 90th day of employment.  
  • Maximum Length of Leave: 24 hours or 3 days: whichever is greater. 

Reasons for Leave: Diagnosis, care or treatment of an existing health condition for an employee or covered family member. 

Certification: May not require. 

Paid Family Leave (CA) 

As of 2004, the State began a family temporary disability insurance program to provide currently up to eight weeks of wage replacement benefits per year to employees who take time of work for the following reasons: 

  • Care for a child, spouse, parent, parent-in-law, registered domestic partner, grandparent, grandchild, or sibling who is seriously, or
  • to bond with a newborn, foster child or newly adopted  child

This program is financed entirely by an increase in employee payroll contributions to the SDI fund. (PFL continued) 

The first seven consecutive days of leave taken for family care are deemed a “waiting period”, during which no benefits are paid. 

An employer may require an employee to take up to two weeks of accrued but unused vacation at the onset of this leave. If so, required the vacation leave shall be applied to the one-week waiting period. 

Employees entitled to leave under the FMLA or CFRA must take family temporary disability insurance leave concurrent with their FMLA and/or CFRA. 

No reinstatement rights exist that do not already apply under FMLA and/or CFRA. 

Military Leave 

Duration of leave and reinstatement rights is covered under USERRA (the Uniformed Service Employment and Reemployment Rights Act). 

  • Advance notice must be given employee with the presentation of the proper documentation 
  • Length = no more than 5 years 
  • Not discharged on other than honorable grounds 
  • Timely reports back to work 

There are specific stipulations regarding length of service and reinstatement requirements. Each case should be reviewed to avoid mistakes. 

Military Spousal Leave: 25+ Employees 

Employees who work more than 20 hours per week and have a spouse in the Armed Forces, 

National Guard or Reserves who have been deployed during a period of military conflict are eligible 

for up to 10 unpaid days off when their spouse is on leave from (not returning from) military deployment. 

Employees must request this leave in writing within two business days of receiving official notice that their spouse will be on leave. Employees requesting this leave are required to attach to the leave request written documentation certifying the spouse will be on leave from deployment. 

Jury Leave 

An employer must grant unpaid time off from work to an employee who gives reasonable advance notice to serve as a juror. An employee on such a leave for jury duty may use vacation, personal leave, or compensatory time off that is made available to the employee. A deduction of salary from an exempt employee cannot be made unless no work is performed during that week of jury service. 

 Voting and Election Observing 

If an employee does not have sufficient time outside of his or her scheduled working hours to vote in a statewide election, the employer must provide up to 2 paid hours off at the beginning or end of the employee’s regular work shift to enable the employee to vote. Employee must give 2 working days advance notice of need for leave. An employee serving as an election observer on Election Day must be given unpaid time off for election observing. 

School Visits: 25+ Employees 

No employer may deny a leave to a parent who is requested to appear at school because their child has been suspended provided the employee gives reasonable notice to his or her employer. An employer who employs 25 or more employees must allow an employee to take up to 40 unpaid hours of time each school year, per child, to permit the parent or guardian of a child in kindergarten up through grade 12 to participate in activities at the school of the child provided the employee provides reasonable notice that their attendance at school is requested. 

USERRA (Uniformed Services Employment and Reemployment Rights Act)  

An employee absent from work due to uniformed services is eligible for the following: 

  • Up to 5 years of unpaid, protected leave for military service. 
  • No length of service is required. 
  • Recommend that employers seek assistance in complying with complex leave.  

Organ and Bone Marrow Donor Leave: 15+ Employees  

A leave of absence is made available to employees who choose to donate organs or bone marrow. The following paid leave will be provided:  

  • Organ Donors – will be provided a 30-day (workdays) of paid leave of absence in any one-year period. 
  • Additional 30 days of unpaid leave in a 12-month period can be taken for organ donation.   
  • Bone marrow donors – will be provided a paid leave of absence up to five (5) workdays in any one-year period.  
  • Continuation of health insurance. 
  • May require use of 5 days of accrued sick, vacation/PTO for bone marrow donation and 2 weeks for organ donation.  

The leave for the purpose of donating bone marrow or an organ may run concurrently with FMLA if applicable.    

Conclusion  

Have a strategy for handling leave of absence requests. Make sure that you are doing the following: 

  1. Post all notices required by law. 
  2. Insure that your employee handbook contains legal policies and procedures regarding leaves of absence required by law. 
  3. Use an appropriate form to acknowledge a leave request and to inform the employee of your expectations during the leave. 

These particular areas of compliance can be “complex”. Feeling confident in having the “basics” in place will go a long way towards compliance.  

If in doubt, seek assistance. Doing so can prevent costly mistakes.