Employee Leaves of Absence

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A comprehensive primer on the myriad federal and state laws that govern temporary leaves by employees  

By Marilyn A. Monahan

Monahan

When an employee takes a leave of absence, employers in California must determine the applicability and interrelationship of a number of leave laws that sometimes, but not always, overlap.

This article provides an overview of some of the key federal and state leave laws employers should consider when an employee requests a temporary leave. Employees who seek time off may be entitled to leave under other provisions of state and federal law. 

Family and Medical Leave Act

The federal Family and Medical Leave Act (FMLA) (29 U.S.C. §§ 2601-2654, 29 C.F.R. §§ 825.100-.800) entitles eligible employees to take up to 12 work weeks of leave during any 12-month period. 29 U.S.C. § 2612. To be eligible, the individual must have been employed for at least 12 months by, and must have at least 1,250 hours of service with, the employer during the previous 12-month period. A person is not eligible, however, if he or she is employed at a worksite with fewer than 50 employees, if the total number of employees within 75 miles of that worksite is less than 50. 29 U.S.C. § 2611.

Leave can be taken if the employee has a serious health condition that makes the employee unable to perform the functions of his or her job.  29 U.S.C. § 2612. Leave can also be taken to care for a spouse, son, daughter or parent if that person has a serious health condition. Finally, leave can be taken because of the birth or placement for adoption or foster care of a son or daughter and in order to care for that child. 29 U.S.C. § 2612.

FMLA applies to employers who employ 50 or more employees each working day during each of 20 or more calendar work weeks in the current or preceding calendar year. FMLA also applies to federal and state government employers, even if they do not have 50 employees. 29 U.S.C. § 2611. FMLA is not paid leave. 29 U.S.C. § 2612; 29 C.F.R. § 825.207.

If the FMLA leave is taken due to the serious health condition of the employee or a relative, the employer has the discretion to require the employee to provide a medical certification. The law describes what must be included in a certification, which includes “the appropriate medical facts within the knowledge of the health care provider regarding the condition” and information on the length of the leave. Optional model forms are provided; no additional information may be required by the employer. 29 U.S.C. § 2613; 29 C.F.R. § 825.306. Employees returning from leave may be required to provide a return-to-work certification. 29 U.S.C. § 2613.

Leave taken to care for a relative or because of the employee’s own serious health condition can be taken intermittently or on a reduced leave schedule when medically necessary. 29 U.S.C. § 2612(b)(1); 29 C.F.R. § 825.203(c). If the leave is taken due to the birth or placement of a son or daughter, the leave expires if not taken within 12 months of the birth or placement. 29 C.F.R. § 825.201. In such a case, the leave may be taken intermittently or on a reduced leave schedule, but only if the employee and the employer agree. 29 U.S.C. § 2612(b)(1).

If both a husband and wife entitled to leave work for the same employer, they are entitled to an aggregate of 12 workweeks for leave during any 12-month period. The rule applies only if the leave is for the birth or placement of a son or daughter, or to care for a sick parent. In addition, this rule only applies if the couple is married. 29 U.S.C. § 2612.

FMLA contains notice requirements. In general, the employee must provide not less than 30 days’ advance notice to the employer if the need for the leave is foreseeable, or as soon as practicable if 30 days notice is not possible. 29 U.S.C. § 2612.

It is the employer’s responsibility to designate the leave as FMLA leave, paid or unpaid. The employer must give the employee notice of its designation, which can be oral or in writing; oral notice must be confirmed in writing. 29 C.F.R. § 825.208. 

California Family Rights Act

The California Family Rights Act (CFRA) is similar, but not identical, to FMLA. Under CFRA, an employee can take up to 12 work weeks of leave in any 12-month period for family care and medical leave. To qualify, the employee must have more than 12 months, and at least 1,250 hours, of service with the employer during the previous 12-month period.  In addition, the employee must work for an employer who maintains on the payroll, as of the date of the leave request, at least 50 full- or part-time employees within 75 surface miles of the employee’s worksite. Cal. Govt. Code § 12945.2(a); Cal. Code Regs. tit. 2, § 7297.0.

Leave can be taken due to the employee’s own “serious health condition.” The serious health condition must make the employee unable to perform the functions of his or her job. Cal. Govt. Code § 12945.2(c).

Leave can also be taken to care for a parent or spouse who has a serious health condition. Finally, leave can be taken because of the birth of a child, the placement of a child for adoption or foster care, or the serious health condition of the child. Cal. Govt. Code § 12945.2(c).

An employer is subject to CFRA if it engages in any business or enterprise in California and directly employs 50 or more employees in any state, the District of Columbia or a territory or possession of the United States. Cal. Code Regs. tit. 2, § 7297.0(d). The law applies if the employer maintains an aggregate of at least 50 full- or part-time employees on its payroll for each working day during each of 20 or more calendar work  weeks in the current or preceding calendar year. The state, counties, cities and their political subdivisions are also subject to the law, regardless of the number of employees. CFRA does not require that the 50 employees work at the same location or are employed full time. CFRA leave is unpaid. Cal. Govt. Code § 12945.2(e); Cal. Code Regs. tit. 2, § 7297.5. Individuals on CFRA might be entitled to disability benefits to cover their wage loss.

If the leave is taken because of the serious health condition of the employee or a relative, the employer may require the employee to provide a medical certification. The employer cannot require any more information from the health care provider than the statute allows (and the amount of information that can be requested is less than that allowed under FMLA). Cal. Govt. Code § 12945.2(j); Cal. Code Regs. tit. 2, § 7297.4. Model forms are provided in the regulations. Cal. Code Regs. tit. 2, § 7297.11. Employees returning from leave may be required to provide a return-to-work certification.

Leave does not have to be taken continuously when it is requested due to the birth, adoption or foster care placement of a child, but the leave must be completed in one year. If leave is taken due to the serious health condition of a child, parent or spouse, or of the employee, leave can be taken intermittently or on a reduced work schedule when medically necessary. Cal. Code Regs. tit.2, § 7297.3.

If both parents entitled to CFRA leave work for the same employer, the employer is not required to grant leave in connection with the birth, adoption or foster care of a child that would allow the parents more than 12 work weeks of leave in a 12-month period between the two. This does not impact their entitlement to leave for other purposes. Cal. Code Regs. tit. 2, § 7297.1(c). This restriction applies even if the parents are not married to each other.

If the need for the leave is foreseeable, the employee may be required to provide 30 days advance notice, or otherwise as soon as practicable. If the employer adopts notice requirements, it must give employees reasonable advance notice that it has done so. Upon receipt of a leave request, the employer must respond as soon as practicable, but no later than 10 calendar days after receipt. Cal. Code Regs. tit. 2, § 7297.4. It is the employer’s responsibility, however, to designate the leave, whether paid or unpaid, as CFRA or FMLA leave. Cal. Code Regs. tit. 2, § 7297.4(a)(1)(A).

Leave taken pursuant to CFRA runs concurrently with leave taken under FMLA. There is a significant exception to this rule, however: pregnancy disability leave does not run concurrently with CFRA. Cal. Govt. Code § 12945.2(s). Thus, if an employee meets all of the requirements of both CFRA and California’s pregnancy disability leave law, she may be entitled to up to four months of leave under the state’s pregnancy disability law, which would exhaust her leave rights under FMLA, but still be entitled to another 12 weeks of leave under CFRA to care for and bond with her child. Cal. Code Regs. tit. 2, § 7291.13 & 7297.6. 

Pregnancy Disability Leave

Under California’s Pregnancy Disability Leave law (PDL), it is an unlawful employment practice for an employer to refuse to allow a female employee disabled by “pregnancy, childbirth, or related medical conditions to take a leave for a reasonable period of time not to exceed four months.” Cal. Govt. Code § 12945(a). The four-month period is a maximum. If, however, the employer provides more than four months of leave for other types of temporary disabilities, the employer must make the extended leave period available to women taking PDL. Leave may be taken intermittently, or it may be taken on a reduced work schedule. Cal. Code Regs. tit. 2, § 7291.7(a)-(b). Leave can be taken for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth and related medical conditions. There is no length of service requirement before an employee is entitled to take this leave. Cal. Code Regs. tit. 2, § 7291.7(c). At the end of the leave or transfer period, an employee is generally entitled to reinstatement. Cal. Code Regs. tit.2, § 7291.9.

If an employee requests, upon the advice of her health care provider, reasonable accommodation for her disabling condition, the employer shall grant it. If an employee requests, with the advice of her physician, a temporary transfer to a less strenuous or hazardous position for the duration of her pregnancy, the employer shall comply if the transfer can be reasonably accommodated. Cal. Govt. Code § 12945(b).

An employer is subject to California’s pregnancy disability leave law if the employer regularly employs five or more full- or part- time employees. Cal. Govt. Code §§ 12926(d) & 12945; Cal. Code Regs. tit. 2, § 7291.2(h). The state, political or civil subdivisions of the state, and cities must also comply, regardless of the number of employees.

Employers may require employees to provide reasonable notice of when they intend to take PDL leave or request a transfer, and the estimated length of the leave or transfer. The employee must provide this notice at least 30 days in advance, unless it is not practicable to do so. If the employer puts any notice requirements into place, it must give employees advance notice of those requirements. Also, as soon as practicable after receiving the employee’s notice, but no later than 10 calendar days, the employer shall respond to the employee’s request. Cal. Code Regs. tit. 2, § 7291.10.

The employer may require a written medical certification, but only if the employer also does so for similarly situated employees. The employer may not require any more information than is allowed by the regulations. If the certification expires, the employer may ask for recertification. The employer may also require the employee to provide a “return-to-work” release from a health care provider. Cal. Code Regs. tit.2, § 7291.10(b)-(c).

PDL is not paid leave. Employees may be entitled, however, to disability benefits to replace lost wages.

If the woman’s leave qualifies as a “serious health condition” under FMLA, and if the employer is subject to FMLA, the pregnancy disability leave will run concurrently with FMLA. Cal. Code Regs. tit. 2, § 7291.12. The leave does not run concurrently with CFRA, however, even if the disability would also qualify as “serious health condition” under CFRA. Cal. Govt. Code § 12945.2(s); Cal. Code Regs. tit. 2, § 7291.13. The right to take a pregnancy disability leave is separate and distinct from the right to leave under CFRA.

Paid Family Leave

Effective July 1, 2004, employees who were otherwise eligible could begin filing claims with the state under California’s Paid Family Leave law (PFL). A component of the State Disability Insurance program (SDI), PFL provides up to six weeks of wage replacement benefits to employees who take leave to care for a seriously ill child, spouse, parent or domestic partner or to bond with a new child. Cal. Unemp. Ins. Code §§ 3300-3305. 

Employees do not have to work a certain number of hours or days to be eligible for PFL. If employees pay into SDI, they are eligible for paid leave; the size of the employer’s workforce is not relevant. There is, however, a 7-day waiting period before benefits start. 

No more than six weeks of benefits shall be paid in any 12-month period. According to the EDD, the leave can be taken intermittently. For bonding with a baby, the leave must be taken within a year of the birth or placement.

PFL benefits are for leaves taken following the birth of a child of the employee or the employee’s domestic partner, or the placement of a child for adoption or foster care with the employee or the employee’s domestic partner. PFL benefits will also be paid if the leave is taken in order to care for a parent, spouse, domestic partner or child (of the employee, spouse or domestic partner) with a serious health condition.

PFL does not create new leave rights, nor does it change FMLA or CFRA; instead, for qualifying leaves, it provides a paid benefit. A leave under PFL runs concurrently with FMLA and CFRA, assuming the requirements of all laws are met and the employer is subject to FMLA and CFRA. 

A person is not eligible for PFL if he or she is receiving unemployment compensation, workers’ compensation or state disability insurance benefits. A person is not eligible for PFL “with respect to any day that another family member is able and available for the same period of time that the individual is providing the required care.”

California kin care

California employers are not required to provide sick leave for their employees. If they do, they must allow employees to use a portion of that leave to take time off to attend to an illness of a child, parent, spouse or domestic partner. Cal. Lab. Code § 233. This right to take leave to care for an ill family member is sometimes referred to as “kin care.”

Employees who take time off for these purposes are entitled to use not less than the amount of sick leave they would accrue during a six-month period at their current rate of entitlement. The kin care law does not extend the maximum period of time a person is allowed under either CFRA or FMLA. 

The law applies to all employers who provide sick leave; it is not limited to companies of a certain size. It also applies to the state, political subdivisions of the state and municipalities.

Posting requirements

FMLA, CFRA and PDL all include employer posting requirements. In addition, if the employer has an employee handbook that describes employee leave and disability rights, descriptions of FMLA, CFRA and PDL must be included. Under FMLA and PDL, notices must be provided directly to employees in specified circumstances. Under FMLA, CFRA and PDL, postings and information on leave may have to be translated into the language in which the employer’s workforce is literate. For PFL, EDD has prepared a brochure to be distributed to employees. A poster is also available describing PFL as well as other state benefits.

Relationship between the laws

The best way to understand the interrelationship between these federal and state leave laws is to look at a situation involving a woman who is on leave because she is pregnant, because it presents the most potentially complicated scenario.

A woman who is disabled by pregnancy is entitled to up to a maximum of four months of PDL leave, if her doctor certifies that she is disabled for that period of time. If her employer is subject to FMLA, and if she is eligible to take FMLA leave, her PDL leave runs concurrently with FMLA. On the other hand, if her employer is subject to CFRA (and most employers subject to FMLA are also subject to CFRA), and if she is eligible to take CFRA leave, under state law her PDL leave does not run currently with her CFRA designated leave. So, a woman disabled by pregnancy is entitled to up to four months of disability leave under PDL, and then up to another 12 weeks of family leave under CFRA. While on PDL leave, the woman may be entitled to receive SDI benefits to replace some of the wages she is losing. As soon as her period of disability ends and the SDI payments stop, she may then immediately begin receiving PFL benefits while bonding with her child. The PFL period will run concurrently with CFRA for the first six weeks of the leave (at which point PFL benefits will cease, but the employee may still be entitled to an additional six weeks of CFRA leave).

• Marilyn A. Monahan practices with the Los Angeles firm of Emmer & Graeber, which specializes in insurance law and employee benefits. She is a member of the executive committee of the State Bar’s Solo and Small Firm Section.

SELF-ASSESSMENT TEST

Certification

• This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour.
• The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.
• Indicate whether the following statements are true or false after reading the MCLE article on employee leaves of absence. Use the answer form provided to send the test, along with a $25 processing fee, to the State Bar. If you do not receive your certificate within four to six weeks, call 415-538-2504.

1. Employees are entitled to full pay while on FMLA leave.
2. Pregnancy disability leave runs concurrently with FMLA and CFRA leave, if all other requirements of the leave laws are met.
3. If a married couple work for the same employer, they are each entitled to up to 12 work weeks of leave under FMLA to care for a sick parent.
4. In the case of a leave taken under FMLA due to the birth or placement for adoption of a son or daughter, the employer must allow the parent to take leave intermittently.
5. Paid family leave is only available to employees who work for employers who have 50 or more employees.
6. Paid family leave is available to an employee who wants to take time off to care for a domestic partner with a serious health condition.
7. Pregnancy disability leave applies to employers who regularly employ five or more full- or part- time employees.
8. All women are entitled to four weeks of pregnancy disability leave, regardless of medical condition.
9. The employee is obligated to designate his leave as CFRA leave.
10. An employee can take FMLA leave to care for a domestic partner with a serious health condition.
11. FMLA applies to employers who employ 50 or more employees each working day during each of 20 or more calendar work weeks in the current or preceding calendar year.
12. If the employer gives notice that it has designated an employee’s leave as FMLA leave, written or oral notice is permissible.
13. To determine if an employer is subject to CFRA, only California-based employees are counted.
14. Under FMLA and CFRA, if intermittent leave is requested to care for a relative with a serious health condition, the employer only has to grant the request if it is medically necessary.
15. An employer does not have to provide more than four months of leave for a pregnancy-related disability, even if the employer provides longer leave periods for other temporary disabilities.
16. To determine if an employer is subject to CFRA, only full time employees are counted.
17. Under California’s pregnancy discrimination law, employees can request a transfer to a less hazardous position if medically advised.
18. Paid family leave begins immediately, without a mandatory waiting period.
19. California employers are obligated to provide employees with paid sick leave.
20. Employees are entitled, under California’s kin care law, to use all of their accrued sick leave to take time off to attend to the illness of a child, parent, spouse or domestic partner.