Protected Leaves

Employees working in California are able to avail themselves of several types of protected leave. Leave taken under the following laws is considered a “protected” leave of absence, meaning that an employer cannot terminate and/or retaliate against an employee as a result of the employee requesting or taking a leave of absence pursuant to these laws. In addition, protected absences may not be used toward any attendance policy and/or point system that leads to attendance-related discipline.

Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA)

The FMLA and CFRA entitle eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. In addition, an employer must maintain the employee’s position or a similar position to which the employee may return at the conclusion of his/her leave.

FMLA and CFRA require employers with 50 or more employees to provide an employee with up to 12 weeks of medical leave per calendar year to: 1) care for their own serious medical condition; 2) care for the serious medical condition of a family member, defined as a child, spouse, or parent; or 3) to bond with a newborn or adopted child.

Under FMLA/CFRA:

Eligible employees are entitled to:
• 12 workweeks of protected leave in a 12-month period for: the birth of a child and to care for the newborn child within one year of birth; the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; to care for the employee’s spouse, child, or parent who has a serious health condition; a serious health condition that makes the employee unable to perform the essential functions of his or her job; any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

Military Caregiver Leave:

FMLA extends protected leave to 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave). Under CFRA, protected leave for a servicemember that fulfills all other criteria remains 12 weeks.

An eligible employee is one who:

  • Works for a covered employer;
  • Has worked for the employer for at least 12 months;
  • Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave*; and
  • Works at a location where the employer has at least 50 employees within 75 miles.

A covered employer is a:

  • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • Public agency, including a local, state, or federal government agency, regardless of the number of employees it employs; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

The 12 months of employment do not have to be consecutive. This means that any time previously worked for the same employer (including seasonal work) could, in most cases, be used to meet the 12-month requirement. If the employee has a break in service that lasted seven years or more, generally the time worked prior to the break will not count unless the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA), or there is a written agreement, including a collective bargaining agreement, outlining the employer’s intention to rehire the employee after the break in service.

CFRA and FMLA often overlap so that the two leaves run concurrently. However there are some significant differences where the two leaves do not run concurrently, which provide a California employee up to six months of protected leave. For example, any pregnancy-related disability is considered a “serious medical condition” under FMLA, but not CFRA. Another deviation between FMLA and CFRA is leave to care for an injured military service member. If the service member is the son, daughter or spouse of the employee, then the employee’s leave under CFRA and FMLA would likely run concurrently. If the service member is the “next of kin,” however, only FMLA leave would be triggered, providing a California employee with up to 26 weeks of leave under FMLA and an additional 12 weeks of leave under CFRA for another qualifying event in the same 12-month period.

FMLA/CFRA Recent Updates:

Recently, the U.S. Department of Labor expanded the leave protections under FMLA for veterans with a serious medical condition as well as expanding the definition of “serious injury or illness” for current service members and veterans to include pre-existing injuries that were aggravated by their service in the line of duty or active duty. The recent expansions also expanded the definition of “qualifying exigency leave” and increased the amount of time off from 5 days to 15 days.

The U.S. Department of Labor also announced a Notice of Proposed Rulemaking (NPRM) to revise the definition of spouse in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. The NPRM proposes to amend the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.

California Pregnancy Disability Leave (PDL)

This leave applies to employers with five or more employees and provides up to four months of protected leave. PDL entitles eligible employees of covered employers to take unpaid, job-protected leave for disability during pregnancy and/or childbirth with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. In addition, an employer must maintain the employee’s position or a similar position to which the employee may return at the conclusion of his/her leave.

PDL only applies during a period of disability where a doctor has established that the employee is unable to work due to pregnancy, childbirth and/or a related medical condition. This leave runs concurrently with FMLA, but not CFRA. Therefore, an employee could take up to four months for pregnancy disability/FMLA leave, and still have another 12 weeks of protected leave under CFRA for bonding with a new child or to care for the employee’s/family members’ serious medical condition(s).

Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA)

The ADA applies to employers with 15 or more employees and requires an employer to reasonably accommodate a qualified employee with a disability. FEHA requires all employers with five employees or more to reasonably accommodate employees who have a disability. A reasonable accommodation may include a protected leave of absence from work, the duration of which depends upon the disability.

An employer’s policy may not impose a limit to time off work for a disability, all cases are to be evaluated separately and all accommodations that do not impose an undue hardship on the employer must be granted. Whether a leave will impose an undue hardship on the employer is a very fact-intensive inquiry and will depend on the duration and type of the leave as well as the size and resources available to the employer.

Uniformed Services Employment and Reemployment Rights Act of 1994

USERRA requires employers of any size to provide an employee up to five years of protected leave for military service. The employee must be a member of “uniformed services,” which includes the Army, Navy, Air Force, Marine Corps, Coast Guard, Army National Guard, and Air National Guard, and be engaged in active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, or absences for fitness-for-duty examinations.

The five years is calculated according to the cumulative amount of time the employee spends in the uniformed military service.

The new expansions of FMLA also require an employer to consider all periods of absence from work due to or necessitated by covered service under USERRA when determining whether the employee is eligible for FMLA.

Other California Protected Leaves

Employees working in California may be eligible for other protected leaves, such as kin care, military spouse leave, school activities leave, and more.

Kin Care

Although California law does not require employers to provide employees with sick leave benefits, employers who do provide sick leave benefits 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.

Domestic Abuse/Sexual Assault/Stalking Leave

This leave applies to any employer with 25 employees or more and requires an employer to provide an indefinite leave of absence to an employee who is seeking services or medical attention as a result of domestic violence, sexual assault, or stalking.

Military Spouse Leave

This leave applies to employers with 25 or more employees and allows an employee to take up to 10 days to spend time with a military spouse who has been deployed during military conflict.

Organ Donation Leave

This leave applies to employers with 15 or more employees and provides eligible employees with up to 30 business days of paid protected leave in a year to donate an organ. This leave is explicitly excluded from running concurrently with FMLA or CFRA.

Bone Marrow Leave

This leave applies to employers with 15 or more employees and provides eligible employees with up to 5 business days of paid protected leave in a year to donate bone marrow. This leave is explicitly excluded from running concurrently with FMLA or CFRA.

School Activities Leave

This leave applies to employers with 25 or more employees and provides eligible employees with up to 40 hours of leave per year to participate in school activities with their children.

School Appearance Leave

This law applies to all employers and requires them to provide employees with time off in order to appear at school on a child’s behalf with regard to school suspension.

Civil Air Patrol

This leave requires any employer with 15 or more employees to provide no less than 10 days per calendar year of unpaid leave for an employee who is responding to an emergency operational mission of the California wing of the Civil Air Patrol. If it is only a single emergency operational mission, only three days of leave is required.

Victims of Crime Leave

This leave applies to any employer and requires the employer to provide an indefinite amount of leave in order to attend judicial proceedings to an employee who is a victim of crime as defined in statute, or has an immediate family member who was a victim of crime.

Volunteer Firefighting, Reserve Peace Officer, and Emergency Rescue Personnel Leave

This leave applies to employers with 50 or more employees and requires the employer to provide an employee who is a volunteer firefighter, reserve peace officer, or emergency rescue personnel with up to 14 days of leave per year to engage in fire, law enforcement, or emergency rescue training.

Voting Leave

This leave applies to all employers and requires them to provide employees with as much time off as needed to vote. A maximum of two hours of time off to vote is paid.

Jury Duty/Witness Leave

This leave applies to all employers and requires them to provide any employee called upon for jury duty or subpoenaed as a witness time off from work for the duration of the civil service on a jury or as a witness.