Mandated Leaves in California

Employers in California must comply with three overlapping statutes that require them to give their employees time off -- the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and the pregnancy disability leave provisions of the Fair Employment and Housing Act (PDL). This post will give you the basics. If you would like training on the details of these statutes, please contact us at calvin.house@gphlawyers.com.

FMLA

Under this statute, employers with 50 or more employees must grant eligible employees up to 12 weeks off per year in the following circumstances -- (1) for the employee's own serious health condition, (2) when needed to care for a spouse, child or parent with a serious health condition, (3) in connection with the birth of a child or placement of a child for adoption or foster care (sometimes called baby bonding leave), (4) for exigencies created by the call up of a family member from the reserves or National Guard, and (5) when needed to care for a family member in the military who has been injured in the line of duty (this entitlement is up to 26 weeks). An employee is eligible for leave under the FMLA if he or she has been on the payroll for a year, and has actually worked 1250 hours within the 12 months immediately preceding the leave. Employers must maintain group health benefits during FMLA leave. The text of the statute is available here. The Department of Labor's FMLA regulations are available here.

CFRA

The CFRA has the same coverage and eligibility requirements as the FMLA. It differs in two important respects -- (1) the definition of serious health condition excludes pregnancy related conditions, and (2) by operation of the Registered Domestic Partners Rights and Responsibilities Act, the word "spouse" is interpreted to include registered domestic partners. The text of the statute is available here (Government Code section 12945.2). The Department of Fair Employment and Housing's regulations are available here (sections 7297.0 - 7297.11).

PDL

Employers with five or more employees must allow any female employee (no matter how long she has been an employee) to take up to four months of leave when she is disabled by pregnancy. Disabled by pregnancy means unable to perform the essential functions of her job without undue risk to herself, to others, or to her unborn child. Because the CFRA excludes pregnancy related conditions from its coverage, a woman will have up to 12 weeks of baby bonding time under the CFRA after she has exhausted her pregnancy leave. Her FMLA time runs concurrently with her PDL time. A new law that is effective January 1, 2012, requires employers to maintain group health benefits during pregnancy leave. The text of the statute is available here (Government Code section 12945). The DFEH's regulations are available here (sections 7291.2 - 7291.16).

New FMLA Regulations

The U.S. Department of Labor has issued its long-awaited amendments to its regulations under the Family and Medical Leave Act. Published on November 17, 2008, the new rules will take effect on January 16, 2009. The Department issued a press release that summarizes the changes. The full text of the publication in the Federal Register is available here. The Department has also published a fact sheet that describes the amendments.

The basics of FMLA remain the same, but employers should take note of the following significant changes:

1. The Department has exercised its authority under the new military family leave provisions of the FMLA to define the qualifying exigencies for which employees with relatives who are in the National Guard or Reserves can use FMLA leave as follows: (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) other activities that the employer and employee agree on.

2. When paid leave is substituted for FMLA leave, all forms of employer paid leave (vacation, sick leave, personal time off, and so on) will be treated the same.

3. The regulations revamp the employer notice obligations. Employers must provide (1) a general notice about FMLA rights, (2) an eligibility notice, (3) a rights and responsibilities notice, and (4) a designation notice. The regulations include new forms to assist employers in complying with their notice obligations. The forms (which include ones tailored to the new military family leave provisions) do not yet appear independently on the Department's website, but are included as appendixes to the regulations.

4. The regulations rework the medical certification process, and provide a new suggested form for obtaining certification. California employers should note that the new Form WH-380 medical certification still asks the medical provider for "medical facts" (including "diagnosis") about the employee's condition. A California Family Rights Act regulation prohibits employers from obtaining such information without patient authorization.