California law gets even friendlier to families
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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.
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