California law gets even friendlier to families

Shiu

By Patricia A. Shiu
Analysis

California took another step toward family-friendly living last year when the legislature passed the Paid Family Care Leave Act (PFCLA), the most comprehensive paid leave bill in the United States and a model for the rest of the country.

PFCLA grants up to six weeks of partially paid family leave annually to employees who need time off work to care for a seriously ill child, spouse, parent or domestic partner, or to bond with a new child.

Paid leave, which becomes effective July 1, 2004, will be funded through payments made by employees to a newly created family temporary disability insurance program that will function within California's state disability insurance program. In fact, paid leave will be funded entirely by employees through a withholding tax, and is, in effect, a wage replacement benefit.

Family life today is complex, evolving and fraught with challenges. Gradually, our laws are catching up with this reality. In the last decade, family leave laws have been enacted which recognize that families often face tremendous difficulties when it comes to juggling the competing demands of work with the needs of family members.

These laws allow employees time to cope with medical crises and family responsibilities without risking job loss when confronted with the serious illness of a family member or when a new baby arrives.

Recognizing that most families must balance the competing demands of work and family every day, this new law enables those who are most in need of leave, but who are unable to take it either because they cannot afford to do so or because they do not qualify for leave under existing laws, to take some time off work for a family medical emergency or to bond with a new child.

What makes the PFCLA different? While this new law provides potentially greater leave benefits to larger numbers of employees, there are some notable differences between PFCLA and its predecessors, the California Family Rights Act (CFRA), and the Family and Medical Leave Act (FMLA). For example, under the PFCLA, employees need not work for a large employer with 50 or more employees in order to be eligible for leave under this law.

The 50-employee minimum is a requirement for an employee to be eligible for leave under both the FMLA and the CFRA. Nor is it necessary for an employee to have worked a minimum period of time for his/her employer in order to be eligible to take paid leave.

However, under the FMLA and the CFRA, in order to be eligible for leave, an employee must have worked for an employer for at least one year, and 1,250 hours prior to the request for leave. Under the PFCLA, there is a seven-day waiting period before an employee is entitled to payment for leave.

Additionally, employers may require that an employee use two weeks of vacation before receiving any paid leave. Leave taken under the new law runs concurrently with any leave taken under the FMLA and/or the CFRA.

PFCLA and CFRA both share the definition of what constitutes a "serious health condition," but differ in how it is documented. Specifically, the term "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice or residential care facility, or continuing treatment or continuing supervision by a health care provider, as defined under §12945.2 of the Government Code.

However, under the PFCLA, an employee must provide a medical certificate which also contains a diagnosis and diagnostic code, or in the absence of such a code, a detailed statement of the symptoms.

This requirement differs from the CFRA, where disclosure of the underlying diagnosis of the serious health condition of the family member is not required.

The CFRA regulation governing medical certifications of family members complies with California's broadly construed constitutional right of privacy, which includes medical privacy.

Unlike both the FMLA and the CFRA, there is no statutory provision in the PFCLA mandating that employees be reinstated to their jobs after they return from leave. In contrast, both the FMLA and the CFRA provide job-guaranteed leave with a right to reinstatement to the same or comparable position upon expiration of the leave.

One of the most significant differences between the PFCLA and existing laws is coverage of domestic partners. While the FMLA and the CFRA specifically exclude taking leave to care for an employee's domestic partner, the PFCLA provides such leave. Additionally, it provides leave to care for and bond with the child of an employee's domestic partner.

Coverage of domestic partners is a heartening and much-needed development because it recognizes that every family, in the broadest and truest sense of the term, must grapple with the competing demands of work and family.

Not surprisingly, passage of the Paid Family Care Leave Act was highly controversial. Merchants and manufacturers associations and chambers of commerce opposed the bill, fearing they would be required to fund a program that gave employees paid leave.

However, businesses of all sizes and in various industries came forward to support the bill, advocating that it would be good for California families and businesses in the short and long-term.

Ultimately, this law makes tremendous progress in providing more working Californians with the opportunity to care adequately for their families without losing their jobs at a time when employment is most needed. In this state, at least, we will all be less likely to face the impossible and unfair choice of being a loving caregiver, or being a good employee.

Patricia A. Shiu is the Vice President of Programs at the Legal Aid Society Employment Law Center, where she is also Director of the Work and Family Project.