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FMLA: California

FMLA requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: Michelle Barrett Falconer and Natasha L. DeCourcy, Littler

Summary

  • In addition to being covered by the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA) and the California Pregnancy Disability Leave laws may provide employees with additional rights and benefits. See Family and Medical Leave in California.
  • While the CFRA and the FMLA parallel each other to a large degree, California employers must look at both laws when making any family and medical leave decisions. See Covered Employers Under the CFRA.
  • In order to be eligible for leave under the CFRA, employees must fulfill the eligibility requirements. See Employee Eligibility Under the CFRA.
  • Employees in California may take up to 12 workweeks in a 12-month period for certain qualifying reasons. See Purposes and Length of Leave.
  • California employers should select one of four methods for measuring the 12-month period in which 12 workweeks of family and medical leave may be taken. See Measuring the 12-Month Period Under the CFRA.
  • For CFRA leave an employee's certification issued by a health care provider of an employee's spouse (including a same-sex spouse), registered domestic partner, child, or parent with a serious health condition will be sufficient if it includes certain delineated information. See Notice and Certification Requirements Under the CFRA.
  • All female employees, regardless of their length of service, who are disabled by pregnancy, childbirth or related medical conditions must be granted a leave for a reasonable period not to exceed four calendar months (17.33 weeks) by employers with five or more employees. See Employees Qualified for Pregnancy Disability Leave.
  • An employee affected by pregnancy may be entitled to temporarily transfer to a less strenuous or hazardous position for the duration of her pregnancy or to receive another reasonable accommodation if certain criteria are met. See Reasonable Accommodation for Pregnancy-Related Disabilities.
  • Under the New Parent Leave Act, California employers that directly employ 20-49 employees within 75 miles must provide up to 12 weeks of unpaid leave to employees who are new parents. See New Parent Leave Act.
  • California's Family Temporary Disability Insurance program provides up to six weeks of paid family leave insurance benefits every 12 months through California's state-run disability insurance program. See Paid Family Leave.
  • Employees must be allowed to use sick leave to care for a sick family member. See Kin Care Leave.
  • California employers must provide paid sick and safe time to employees. See Paid Sick and Safe Time.
  • Spouses of military service members may be entitled to take leave due to the deployment of the service member. See Family Military Leave.
  • Localities including Los Angeles, San Diego and San Francisco have requirements pertaining to sick leave. See Local Requirements.

Family and Medical Leave in California

Generally, family and medical leave laws require that covered employers provide eligible employees with job-protected leaves of absence for qualifying reasons. The primary federal law governing leave is the Family and Medical Leave Act (FMLA). Employers covered under the FMLA may also be required to provide leave under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).

In addition to the federal laws, California employees may also be entitled to leave under the California Family Rights Act (CFRA), the California Pregnancy Disability Leave Law and local leave laws.

Employers should note that leave required by a state or local law is not taken into account when determining the amount of leave provided by an employer for federal tax credit purposes under the federal tax reform law.

Same-Sex Marriage

Under the Defense of Marriage Act (DOMA), only opposite-sex married couples were allowed to take FMLA leave to care for their spouse. Initial rulings by the Supreme Court and rules issued by the Department of Labor on this topic provided FMLA rights to same-sex spouses based on whether a state recognized same-sex marriage. The definitive decision came when the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Accordingly, same-sex marriage is legal nationwide, and couples lawfully married in any state, including California, are entitled to FMLA spousal leave benefits.

The CFRA expressly includes coverage for same-sex spouses and registered domestic partners (not a roommate or live-in boyfriend or girlfriend). The federal FMLA does not extend coverage to domestic partners. Therefore, leave taken to care for a same-sex spouse under California state law will run concurrently with leave taken under the FMLA. However, when an employee utilizes CFRA leave to care for a domestic partner, his or her employer cannot count this time against the employee's FMLA time, and the employee retains any FMLA leave to which he or she is entitled and can use the FMLA leave for a qualifying reason. +Cal Gov Code § 12945.2(c)(3); +Cal Fam Code § 297; +Cal Fam Code. § 297.5; +2 CCR § 11052; +2 CCR § 11090(b).

Practical Example

John is a long-term employee of Acme Marketing. John's registered domestic partner, Fred, just found out he has cancer and has to undergo extensive treatment. John requests 12 weeks of CFRA leave to care for Fred. After reviewing John's request and supporting documents, Acme Marketing grants John's request. Three months after returning from CFRA leave, John finds out that he has a serious heart condition that requires immediate surgery. John requests FMLA leave to take care of his own serious health condition. Assuming John provides the appropriate certification and meets the other FMLA eligibility requirements, Acme Marketing must now provide John with an additional 12 weeks of leave under the FMLA (thus totaling 24 weeks of leave in the same year).

If John and Fred were legally married, leave to care for a spouse's serious health condition would be covered under the FMLA and John would not be entitled to an additional 12 weeks of leave because he would have exhausted his FMLA leave taking care of Fred (the two leaves run concurrently).

In addition, a California employer should be careful if it seeks to confirm an employee's same-sex spousal relationship to ensure it does not discriminate in any way. While the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).

Apart from FMLA considerations, employers with employees residing in California should look at existing policies that provide for leave based on spousal relationships, such as non-FMLA leave, bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised.

The California Family Rights Act (CFRA)

While the CFRA and the FMLA parallel each other to a large degree, California employers must look at both laws when making any family and medical leave decisions. CFRA and FMLA leave run concurrently, as long as the reason for leave qualifies under both laws.

Covered Employers Under the CFRA

The CFRA covers all public and private employers that directly employ 50 or more persons to perform services for a wage or salary. Directly employ means employing 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The workweeks do not have to be consecutive.

For purposes of determining employer coverage, not all of the employees need to be in California. An employer with 10 employees in California but more than 50 employees nationwide is covered by the CFRA; however, as explained more fully below, in order to be eligible for CFRA leave, employees must work at a location with 50 or more employees within 75 miles of that work location. +Cal Gov Code § 12945.2(c)(2); +2 CCR § 11087(e)(3).

The amendments to the CFRA regulations, which became effective July 1, 2015, expand employer coverage to include successors-in-interest and joint employers. The regulations are consistent with the expanded theory of joint employer liability created for wage and hour matters as set forth in +Cal Lab Code § 2810.3. The regulations do not define a joint employment relationship; instead, they state that such a relationship is "not determined by the application of any single criterion, but rather the entire relationship is to be viewed in its totality based on the economic realities of the situation." Despite not giving a precise definition, the regulations set forth several examples of circumstances under which a joint employment relationship will be deemed to exist. If an employee performs work that simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in the following situations:

  • Where there is an arrangement between employers to share an employee's services or to interchange employees;
  • Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or
  • Where the employers are not completely disassociated with respect to the employee's employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by or is under common control with the other employer.

+2 CCR § 11087(d). See also Overtime: Federal. Employers are recommended to consult with counsel to determine whether they may be considered a joint employer for purposes of the CFRA.

Employee Eligibility Under the CFRA

An employee will be eligible to take leave under the CFRA if the employee:

  • Worked for the employer for at least 12 months;
  • Worked 1,250 hours during the 12-month period prior to the commencement of the leave. The 1,250 hours must be actual hours worked - vacation hours, sick leave hours and other leave time do not count toward the 1,250-hour minimum; and
  • Works at a location where there are at least 50 employees employed within 75 miles of the employee's worksite. The 75 miles are measured by surface road miles.

+Cal Gov Code § 12945.2(a); +Cal Gov Code § 12945.2(b); +2 CCR § 11087(e).

An employee must have at least 12 months of service with the employer, at any time prior to the commencement of CFRA leave. Under the FMLA, employers generally can exclude employment prior to a break in service of seven years or more when calculating the amount of an employee's service. Likewise, under the CFRA, employment periods prior to a break in service of seven years or more do not have to be counted when determining whether the employee has been employed by the employer for at least 12 months, except for a break in service caused by a military service obligation or written agreement to the contrary. However, nothing prevents an employer from considering employment prior to a continuous break in service of more than seven years, as long as it does so uniformly with respect to all employees with similar breaks in service. +2 CCR § 11087(e)(2).

For purposes of calculating the 12-month length of service requirement, an employee may become CFRA-eligible while out on a leave of absence. If an employee is not eligible for CFRA leave at the start of a leave (i.e., because the employee has not met the 12-month length of service requirement), the employee may meet this requirement while on leave, because leave to which they are otherwise entitled counts toward length of service (but not the 1,250-hour requirement). The employer should designate the portion of the leave in which the employee has met the 12-month requirement as CFRA leave. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave during which other benefits or compensation are provided by the employer, the week counts as a week of employment. +2 CCR § 11087(e)(5).

A worksite can refer to either a single location or a group of contiguous locations. For employees with no fixed worksite, the worksite is the site to which they are assigned as their home base, from which their work is assigned or to which they report.

Purposes and Length of Leave Under the CFRA

Employees in California may take up to 12 workweeks of CFRA leave in a 12-month period for the following reasons:

  • The birth or placement of a child for adoption or foster care;
  • The serious health condition of the employee that prevents the employee from working; or
  • To provide care for the employee's child, parent, spouse (including a same-sex spouse), registered domestic partner (does not include a roommate or live-in boyfriend or girlfriend) or registered domestic partner's child who has a serious health condition.

Leave for the birth or placement of a child must be concluded within 12 months of the birth or placement and can be taken in two-week increments. However, if an employee so requests, this leave can be taken in an increment of less than two weeks on any two occasions. +2 CCR § 11090(d).

An employee can start using her CFRA leave while still pregnant, only if:

  • Employee has exhausted her pregnancy disability leave (PDL); and
  • Employer and employee voluntarily agree to let the employee start her CFRA leave.

Under the CFRA, pregnancy is not considered a serious health condition, but it is under the FMLA. Therefore, CFRA does not apply to time off work for disability due to pregnancy and childbirth but it does provide 12 weeks of baby bonding time that is available to both mothers and fathers. As a result, a pregnant woman may be entitled to as much as 29.33 weeks of leave associated with her condition (i.e., FMLA and PDL run concurrently, providing up to 17.33 weeks, and then the employee may take up to 12 weeks of CFRA leave for bonding). +Cal Gov Code § 12945. See Employees Qualified for Pregnancy Disability Leave.

Relationship Between CFRA Leave and FEHA Disability Leave

The CFRA regulations address the interplay between the CFRA and the Fair Employment and Housing Act (FEHA) and expressly provide that the right to take CFRA leave is separate and distinct from the right to take disability leave under the FEHA. The maximum CFRA entitlement of 12 workweeks of leave does not include leave provided as a reasonable accommodation for a physical or mental disability under the FEHA. If an employee has a serious health condition that also constitutes a disability under the FEHA and cannot return to work at the conclusion of CFRA leave, the employer has an obligation to initiate the interactive process with the employee to determine whether an extension of leave would constitute a reasonable accommodation under the FEHA. +2 CCR § 11093.

Spouses Employed by Same Employer

Spouses (including same-sex spouses) or unmarried parents employed by the same employer may be limited to a total of 12 workweeks of leave to bond with a newborn or newly placed child. The employer may not limit two spouses' entitlement to CFRA leave for any other qualifying purpose. For example, parents employed by the same employer each may take 12 weeks of CFRA leave if needed to care for a child with a serious health condition. +Cal Gov Code § 12945.2(q); +2 CCR § 11088(c).

Under the FMLA, spouses working for the same employer are limited to 12 weeks of leave between them. If one spouse is not eligible for FMLA leave, for example if he or he had previously exhausted leave for another purpose, the other spouse could take the entire 12 weeks. However, this does not apply to unmarried parents. +29 C.F.R. § 825.120; +29 C.F.R. § 825.201.

The FMLA allows an eligible employee to take up to 12 weeks of leave in a 12-month period because of any qualifying exigency arising out of the foreign deployment of the employee's spouse, son, daughter or parent. The FMLA also provides eligible employees up to 26 weeks per single 12-month period to care for a covered servicemember with a serious illness or injury. The CFRA does not include qualifying exigency leave and military caregiver leave as qualifying reasons for leave. Therefore, a California employee may be entitled to additional leave. But see Family Military Leave.

Measuring the 12-Month Period Under the CFRA

California employers should select one of the following four methods for measuring the 12-month period in which 12 workweeks of family and medical leave may be taken:

  1. A calendar year;
  2. Any fixed 12-month leave year, such as a fiscal year or a year starting on an employee's anniversary date;
  3. The 12-month period measured forward from the date an employee's first FMLA leave begins (the forward method); or
  4. A rolling 12-month period measured backward from the date an employee first takes a family and medical leave (the rolling method). +2 CCR § 11090(b); +29 C.F.R. § 825.200(b).

While the rolling method is the most advantageous to employers because it prevents employees from stacking leave at year-end, it can be an administrative problem for California employers. Because FMLA and CFRA leaves do not run concurrently in the case of a pregnancy-related condition, a pregnant employee's rolling 12-month period would begin on a different date for FMLA leave than for CFRA leave. This discrepancy can create administrative problems.

The method that appears to be the most advantageous in terms of recordkeeping and limiting the potential for stacking leave at year-end is the forward method. Under this method, the 12-month period is measured forward from the date an employee first takes an FMLA-qualifying leave.

For example, if an employee first takes an FMLA-qualifying leave on June 15, 2014, then that employee has until June 15, 2015, to take up to 12 workweeks of leave. The next 12-month period would begin the next time the employee takes an FMLA leave. Thus, if this employee takes another FMLA-qualifying leave on August 1, 2015, then the next 12-month period runs until August 1, 2016. Stacking leave is still a potential problem with the forward measuring method, but it is not as serious a problem as with the calendar and fiscal year methods.

Practical Example

In April, Jane, a long-term employee of Acme Pharmacy requested 10 weeks of leave to care for her daughter, who sustained a serious injury during her military service in Iraq. Upon review of Jane's documentation submitted in support of her leave request, Acme approved Jane's leave and designated the time as FMLA military caregiver leave only. When Jane returned from leave in June, her registered domestic partner, Mary was in a car accident and in intensive care. Jane requested leave to care for Mary. Upon review of Jane's certification Acme approved Jane's request and determined Jane is eligible for up to 12-weeks of CFRA leave to care for Mary, a registered domestic partner. She was not entitled to FMLA leave since the FMLA does not provide leave to care for a domestic partner. Therefore, Jane's 12 weeks of FMLA leave (or 16 weeks of military caregiver leave) were left intact for future use.

If Jane was married to Mary, Acme would be able to run her 12 weeks of FMLA leave time, concurrently with her CFRA leave.

An employer must inform its employees of which method of calculating the 12-month period it employs. If an employer fails to select one of the above methods for measuring the 12-month period, the method that provides the most beneficial outcome for the employee will be applied, generally considered the calendar year method. An employer wishing to change to another method is required to give at least 60 days' notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. +2 CCR § 11090(b).

Reduced Schedule and Intermittent Leave Under the CFRA

Leave taken due to an employee's own serious health condition under the CFRA may be taken intermittently or on a reduced schedule basis only when medically necessary. +2 CCR § 11090(e). Under the FMLA, if an employee needs intermittent or reduced schedule leave for a planned medical treatment, the employee must make a reasonable effort to schedule the treatment to not unduly disrupt their employer's operations. Therefore, if an employee requests CFRA/FMLA leave, the employer cannot require the employee to consider the employer's operations.

An employer may require that an employee who requests intermittent or reduced schedule leave based on planned medical treatment be temporarily transferred to an available alternative position with equivalent pay and benefits that better accommodate the recurring periods of leave. The alternative position need not be one of equivalent duties. +2 CCR § 11090(e).

Intermittent or reduced schedule leave may be used for a serious health condition of the employee's child, parent or spouse when medically necessary, as determined by the family member's health care provider. Intermittent or reduced schedule leave may also be taken for absences where the family member is incapacitated because of a chronic serious health condition, even if the person does not receive treatment by a health care provider. An employer must limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave provided it is not greater than one hour. +2 CCR § 11090(e).

Leave taken for birth or placement of a child need not be taken in one continuous period. The minimum duration of leave taken for the birth or placement of a child is two weeks, but an employer must grant a request for such leave in increments of at least one day but less than two weeks, on any two occasions. An employer may grant requests for additional occasions of leave lasting less than two weeks. +2 CCR § 11090(d).

Under the FMLA, eligible employees can work an intermittent or reduced schedule for baby bonding only if the employer agrees. +2 CCR § 11090(e)(1).

Notice and Certification Requirements Under the CFRA

Notice Requirements

Unless an employer waives the employee notice obligations, an employee must provide at least verbal notice of their need for CFRA-qualifying leave and the leave's anticipated timing and duration. While an employee does not have to explicitly mention the CFRA or the FMLA, the employee must communicate that the leave is needed for a qualifying reason in order to meet the employee's notice obligations. The regulations specify that a mere mention of "vacation," other paid time off or resignation does not render the notice insufficient, provided the underlying reason for the request is CFRA-qualifying and the employee communicates that reason to the employer. The employer should make further inquiries to determine whether the employee is requesting leave for a CFRA-qualifying reason. +2 CCR § 11091(a).

Under the regulations, an employee has an affirmative obligation to respond to an employer's questions designed to determine whether an absence is potentially CFRA-qualifying. Failure to respond to permissible employer inquiries regarding the leave request may result in denial of CFRA protection if the employer is unable to determine whether the leave is CFRA-qualifying. +2 CCR § 11091(a).

Reasonable advance notice of foreseeable leave is required. An employer may require that employees provide at least 30 days' advance notice if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or a family member. An employee must schedule medical treatments so as to avoid the disruption of an employer's business operations. Employers may require an employee provide a medical certification to support his or her leave. If 30 days' notice is not feasible due to lack of knowledge of approximately when leave will be required to begin, a change in circumstances or a medical emergency, notice must be given as soon as practicable. An employer cannot deny CFRA leave that is unforeseeable or due to an emergency on the basis that the employee did not provide advance notice of the need for the leave, as long as the employee provided notice to the employer as soon as practicable. +2 CCR § 11091(a).

Designation of Leave by Employer

It is the employer's responsibility to designate leave, paid or unpaid, as CFRA-qualifying, based on information provided by the employee. An employer may not retroactively designate leave as CFRA leave after the employee has returned to work, except with appropriate notice to the employee and where the employer's failure to timely designate does not cause harm or injury to the employee. +2 CCR § 11091(a).

Both the CFRA and the FMLA require an employer to respond to an employee's leave request within five business days from the time the employer has enough information to determine whether the leave is being taken for a qualifying reason. +2 CCR § 11091(a); +29 C.F.R. § 825.300(d).

Certification Requirements

For CFRA leave, a certification issued by a health care provider of an employee's spouse, registered domestic partner, child, or parent with a serious health condition will be sufficient if it includes the following:

  • Certification that the patient has a serious health condition as defined by law;
  • The date on which the serious health condition commenced;
  • The probable duration of the condition;
  • An estimate of the amount of time the health care provider believes the employee needs to care for the individual requiring care; and
  • A statement that the serious health condition warrants the participation of the family member to provide care during a period of the treatment or supervision of the individual requiring care. +Cal Gov Code § 12945.2(j)(1); +2 CCR § 11087(a)(1).

The certification provided by a health care provider treating an employee's own serious health condition shall be sufficient if it includes the following:

  • Certification that the employee has a serious health condition as defined by law;
  • The date on which the serious health condition commenced;
  • The probable duration of the condition; and
  • A statement that, due to the serious health condition, the employee is unable to perform the functions of his or her position.

+Cal Gov Code § 12945.2(k)(1); +2 CCR § 11087(a)(2).

An employer should not use the DOL Certification forms for an employee who is eligible for both CFRA leave and FMLA leave.

An employer is not permitted under the CFRA to ask the employee for more information than what is contained in the certification. +2 CCR § 11091(b)(2)(A)(1). An employer may require that the employee submit the health care provider's certification within 15 calendar days, unless it is not practicable for the employee to do so, despite the employee's good-faith efforts. At the time the employer requests certification, the employer also must advise the employee of the anticipated consequences of his or her failure to provide adequate certification. If the employee fails to timely return the certification, the employer may deny CFRA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided. +2 CCR § 11091(b)(3). The FMLA regulations contain a similar provision. +29 C.F.R. § 825.305(b). However, the employer's deadline for submission of the completed certification may be equitably tolled, meaning the court will look at the reasonableness of any delay. See Waltmon Ecology & Environmental, Inc., +2001 U.S. Dist. LEXIS 5981 (N.D. Cal. 2001) (deadline equitably tolled where the employee's doctor mailed the form and the employee telephoned daily for four days preceding the deadline to inquire whether it was received).

The FMLA regulations allow an employer to request, in addition to the information allowed by state law, a statement regarding the medical facts of the condition. +29 C.F.R. § 825.306(a)(3). The CFRA does not allow an employer to request information that identifies the nature of the serious health condition involved. +2 CCR § 11087(a)(1); +2 CCR § 11087(a)(2). A covered California employer should avoid requesting specific information concerning the nature or specific diagnosis of the medical condition. +2 CCR § 11097.

An employer may not contact a health care provider for any reason other than to authenticate a medical certification. +2 CCR § 11091(b).

Second and Third Opinions Under the CFRA

If an employer has a good-faith, objective reason to doubt the validity of the certification for leave due to an employee's serious health condition, the employer may require a second opinion from a health care provider designated or approved by the employer. +Cal Gov Code § 12945.2(k)(3); +29 U.S.C. § 2613(c); +29 C.F.R. § 825.307(b)(1); +2 CCR § 11091(b)(2)(A). If the second opinion differs from the original certification, the employer may require the employee to obtain the opinion of a third health care provider designated or approved jointly by the employer and the employee. +2 CCR § 11091(b)(2)(B); +29 C.F.R. § 825.307(c).

Under the CFRA, an employer is not required to request a third opinion if the second opinion differs from the original certification. An employer that chooses not to utilize a third opinion does not forfeit any right to claim in subsequent litigation that the employee did not qualify for CFRA leave. See Lonicki v. Sutter Health Cent., +43 Cal. 4th 201, 212-13 (2008). However, the employer risks a lawsuit by the employee and the possibility that a court or jury may conclude that the employer violated the employee's rights under the CFRA and/or the FMLA. Several federal courts have held otherwise under the FMLA, and thus, employers also covered by the FMLA should seriously consider whether to seek the third opinion rather than face the risk of losing the right to contest the employee's eligibility under the FMLA. See, e.g., Sims v. Alameda-Contra Costa Transit Dist., +2 F. Supp. 2d 1253, 1260-63 (N.D. Cal. 1998) (employer that did not seek a second medical opinion after the employee submitted his certification form could not contest the certification's validity in a later civil action); Wheeler v. Pioneer Dev. Servs., Inc., +349 F. Supp. 2d 158, 167 (D. Mass. 2004); Washington v. Fort James Operating Co., +110 F. Supp. 2d 1325, 1333-34 (D. Or. 2000) (certification from an employee's physician, without a second or third opinion at the request of the employer, is prima facie proof that the employee's absence resulted from a serious health condition).

If an employer requires a second or third opinion, the employer must bear the costs of those opinions. The opinion of the third provider is final and binding on both parties. +2 CCR § 11091(b)(2)(C); +29 C.F.R. § 825.307(c). Upon the request of the employee, the employer must provide a copy of the second and third opinions, where applicable, without cost. +2 CCR § 11091(b)(2)(D); +29 C.F.R. § 825.307(d). Unlike the FMLA, which allows an employer to request second and third opinions as to the serious health condition of the employee's family member, the CFRA permits an employer to require a second and third opinion only to verify the serious health condition of an employee. +Cal Gov Code § 12945.2(k)(3). Employers covered by the CFRA should thus only request second or third opinions to verify an employee's own serious health condition.

Recertification Process Under the CFRA

An employer may require recertification of the serious health condition of the employee or the employee's spouse, registered domestic partner, child, or registered domestic partner's child, a parent upon the expiration of the leave, if additional leave is required. +Cal Gov Code § 12945.2(j)(2),(k)(2); +2 CCR § 11091(b)(1), (2).

The FMLA regulations allow employers to require recertification in connection with an absence no more than once every 30 days. Where the medical certification indicates that the duration of the condition is more than 30 days, the employer must wait until that minimum time frame expires before requesting a recertification. However, an employer can request recertification more often than every 30 days if the employee requests an extension of leave or circumstances in the previous certification have changed significantly. The California requirement, however, is arguably more favorable to employees. California employers should require recertification only when additional leave is needed.

Return-to-Work Releases and Fitness-for-Duty Examinations

As a condition of an employee's return from medical leave, an employer may require that the employee obtain a release to return to work from his or her health care provider stating that the employee is able to resume work, but only if the employer has a uniformly applied practice or policy of requiring such releases from other employees returning to work after illness, injury or disability and there is no collective bargaining agreement in place that states otherwise. An employer is not entitled to a return-to-work release for each absence taken on an intermittent or reduced leave schedule. However, an employer is entitled to a release for such absences once every 30 days if reasonable safety concerns exist regarding the employee's ability to perform his or her duties.

However, an employer may not require an employee to undergo a fitness-for-duty examination as a condition of an employee's return. After an employee returns from CFRA leave, any fitness-for-duty examination must be job-related and consistent with business necessity. See also Fitness-for-Duty Examinations.

+2 CCR § 11091(b)(2)(E).

Compensation and Benefits During Leave Under the CFRA

An employer is not required to pay an employee taking FMLA and/or CFRA leave. An employer may however, provide greater benefits than required by law. For example, an employer may choose to offer paid leave, or provide benefits for more than the four-month period of time the employee is allowed leave under the Act. However, in no event may the employer maintain the health benefits for a period of time less than the four-month period. See Pregnancy Disability Leave. +Cal Gov Code § 12945; +2 CCR § 11092(b).

Employees may be eligible to receive compensation through state disability insurance (SDI), paid family leave (PFL) benefits, paid sick and safe time, vacation or other forms of employer-provided paid time off. In addition, the California Employment Development Department (EDD) has an integration program that helps employers who provide their employees with paid leave. This program allows an employee to coordinate state benefits with employer leave benefits. Integration of PFL benefits is a process in which the full PFL weekly benefit amount is paid to the employee and the employee is also being paid wages from the employer. With this process, the employee could potentially receive up to 100 percent of his or her normal gross weekly wages for the benefit period (provided the employee has leave balances available).

Once an employee has applied for and received notice of his or her award of PFL benefits, the employee must provide the PFL benefit information to the employer to ensure the accurate amount of wages are paid by the employer to the employee during a period of disability or family care leave. In short, the amount of wages the employer pays to the employee during leave is reduced by the amount of PFL benefits the employee is also receiving. See EDD Integration of Paid Family Leave Benefits. In addition, an employee receiving PFL benefits is not considered to be on unpaid leave, and, therefore, an employer may not require the employee to use paid time off, sick leave or accrued vacation. +2 CCR § 11092(b)(3).

Under the FMLA, employers may dock exempt employees' pay for intermittent leave or reduced work schedule if the employee's entitlement to paid leave has been exhausted. +29 C.F.R. 825.206(a). In other words, during a regular work week, if an exempt employee uses FMLA intermittent leave to take one day off, the employer is not required to pay the employee for five days of work. There is no such provision under the CFRA.

Continuation of Benefits

The CFRA, FMLA, and California pregnancy disability leave law all require the employer to keep an employee covered in the group medical plan and continue to pay the employer-paid portion of the employee's health premium. Under the FMLA, the employer may condition continued payment of the employer's portion of the premium on the employee continuing to pay her share of the premium. +29 U.S.C. § 2614(c); +29 C.F.R. § 825.100(b); +29 C.F.R. § 825.209; +29 C.F.R. § 825.211; +29 C.F.R. § 825.215.

An employer must maintain group health plan coverage for an employee on CFRA leave until:

  • The employee exhausts his or her CFRA leave entitlement;
  • The employer can show that the employee would have been laid off and the employment relationship would have terminated for lawful reasons during the CFRA leave period; or
  • The employee provides unequivocal notice of intent not to return to work.

+2 CCR § 11092(c)(6).

If an employee is required to pay premiums for any part of group health coverage, the employer must provide the employee with advance written notice of the terms and conditions under which premium payments must be made. If CFRA leave is paid, the employee's share of premiums must be paid by the method normally used during any paid leave, typically as a payroll deduction, unless a voluntary agreement between the employer and the employee dictates otherwise. If CFRA leave is unpaid, the employer may require that payment be made to the employer or to the insurance carrier, but no additional charge may be added to the employee's premium payment for administrative expenses.

+2 CCR § 11092(d).

Interaction With Pregnancy Disability Leave

Under the CFRA and the state pregnancy disability leave law, an employer must maintain and pay for the employee's health coverage at the same level and under the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. +Cal. Code Regs. tit. 2, § 11092(c)(1); +Cal. Code Regs. tit. 2 § 11044(c)(1). Thus, if the employer's group health plan requires an employee to pay a portion of the premium, the employee must continue to pay her portion during leave.

Depending on the employee's reason for taking leave, an employer's obligations regarding paying for continued health coverage during leave may differ. California's pregnancy disability leave regulations state that the time an employer maintains and pays for group health coverage during a pregnancy disability leave cannot be used to meet an employer's obligation to continue and pay for 12 weeks of group health coverage under a CFRA leave. The regulations also state that: "[t]his shall be true even where an employer designates pregnancy disability leave as family and medical leave under FMLA. The entitlements to employer-paid group health insurance coverage during pregnancy disability leave and during CFRA are two separate and distinct entitlements." +Cal. Code Regs. tit. 2, § 11044(c)(1). The amendments to the CFRA regulations mirror this language. +2 CCR 11092(c)(2).

In other words, both the CFRA regulations and the pregnancy disability regulations effectively create an obligation to continue group health coverage for up to a maximum of seven months for a woman who takes both a PDL and leave protected by the FMLA or CFRA. However, this regulation conflicts with existing statute and regulations governing the CFRA. Specifically, +Cal Gov Code § 12945.2(f)(1) states that an employer must only provide continued health care coverage for a maximum of 12 workweeks in a 12-month period regardless of whether the leave is a CFRA leave only or a FMLA/CFRA leave. +Cal Gov Code § 12945.2(f)(1). The CFRA states the same. +2 CCR 11092(c)(2); +2 CCR 11092(c)(4).

In light of the changes to the CFRA regulations, the current best practice is to provide continuation of benefits in line with the PDL statute, PDL regulations and amended CFRA regulations. This computation results in a maximum of four months plus 12 weeks of benefits coverage, for a total of roughly 29.33 weeks of coverage.

Use of Accrued Paid Time Off Under the CFRA

Family and medical leave may be paid or unpaid under both the CFRA and the FMLA. An employee may choose to use accrued vacation leave for the unpaid period of family and medical leave. If the employee asks for time off that would qualify as leave under the CFRA, the employer may require the employee to use any accrued vacation time. +Cal Gov Code § 12945.2; +2 CCR 11092(b).

If leave is taken for the employee's own serious health condition, the employee may elect or the employer may require that any accrued sick leave be used. Employees also have the right to use to one half of their annual accrued sick time to care for a sick family member. +Cal Gov Code § 12945.2; +Cal Lab Code § 233; +2 CCR 11092(b). See Kin Care Leave. If the employee's kin care leave qualifies for CFRA protection, the kin care leave would run concurrently with the leave entitlements offered by the CFRA.

An employee taking leave for his or her own serious health condition may also substitute leave taken pursuant to a short- or long-term disability leave plan, as determined by the terms and conditions of the employer's leave policy, during the otherwise unpaid portion of the CFRA leave. This paid disability leave runs concurrently with CFRA leave and may continue longer than the CFRA leave if permitted by the disability leave plan. An employee receiving any form of disability payments is not on "unpaid leave" and, therefore, an employer may not require the employee to use paid time off, sick leave or accrued vacation. +2 CCR 11092(b)(2).

Any employer that provides sick leave accrual for employees must permit an employee to use a portion of that leave to attend to the illness of the employee's child, parent, spouse (including a same-sex spouse) or registered domestic partner. The amount of sick leave that must be made available for the illness of a family member is "an amount not less than the sick leave that would be accrued during six months at the employee's then current rate of entitlement" per year.

Sick leave is defined as accrued increments of compensated leave for use by an employee during an absence from employment:

  • Because the employee is physically or mentally unable to perform his or her duties due to illness, injury or a medical condition;
  • To obtain professional diagnosis or treatment for a medical condition of the employee; or
  • Due to other medical reasons of the employee such as pregnancy or obtaining a physical examination.

Sick leave does not include any benefit provided under an employee welfare plan subject to ERISA or to any benefit not payable from the employer's general assets. +Cal Lab Code § 233. All conditions and restrictions on the use of sick leave by an employee also apply to the use of sick leave to attend to the illness of a family member. An absence control policy that counts sick leave taken pursuant to section 233 as an absence that may lead to or result in discipline, termination, demotion or suspension is unlawful. +Cal Lab Code § 233; +Cal Lab Code § 234.

Reinstatement Under the CFRA

Upon return from family or medical leave, the CFRA entitles an employee to be reinstated to the same position or to a comparable position that is equivalent (i.e., virtually identical) to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. Comparable has the same meaning as equivalent position under the FMLA and means the position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority. The job must be performed at the same or geographically proximate worksite, and ordinarily means the same shift or same or equivalent work schedule. +2 CCR § 11089(g).

Importantly, reinstatement is guaranteed even if the employee has been replaced during leave or his or her position has been restructured to accommodate the employee's absence. +2 CCR § 11089(a)(2)(A). However, an employer may deny reinstatement to an employee if his or her position ceases to exist, for example, due to a reduction in force. +2 CCR § 11089(d). An employer must be cautious in eliminating positions during a business restructuring so as not to give rise to an inference of discrimination. An employer that terminates an employee or eliminates his or her position because the employee took family or medical leave is in violation of the CFRA. See Prohibited Actions Under the CFRA.

If an employee somehow became unqualified for his or her former position while on leave, the employee must be afforded a reasonable opportunity to requalify for the position. For example, if an employee's job duties require a license that lapsed as a result of having to take leave, the employee must be allowed a reasonable opportunity to renew the license. +2 CCR § 11089(a)(2)(A).

The amendments to the regulations strengthen the prohibition against CFRA abuse by employees. An employee who fraudulently obtains or uses CFRA leave is not protected by the CFRA's job restoration or maintenance of health benefits provisions. The employer bears the burden of proving that the employee fraudulently obtained or used CFRA leave. For a general discussion of preventing and detecting family and medical leave abuse, see Curbing FMLA Fraud and Abuse.

Key Employees

The CFRA's general guarantee of reinstatement after leave may not apply to key employees. A key employee means an employee who is paid on a salary basis and is amongst the highest paid 10 percent of the employer's employees working within 75 miles of the employee's worksite at the time of the leave request. +2 CCR § 11087(k).

An employer may refuse to reinstate a key employee to his or her same position or to a comparable position if the employer establishes that all of the following conditions exist:

  1. The employee is a salaried employee;
  2. The employee is among the highest paid 10 percent of the employer's employees who are employed within 75 miles of the worksite at which that employee is employed at the time of the leave request; and
  3. The refusal to reinstate the employee is necessary because the employee's reinstatement will cause substantial and grievous economic injury to the employer's operations.

+Cal Gov Code § 12945.2(r); +2 CCR § 11089(d)(2).

The CFRA regulations set forth special rules for notification surrounding a key employee's request for CFRA leave. The employer must notify the employee in writing at the time the employee requests CFRA leave that the employee is a key employee and risks losing the right to reinstatement. The employer must then notify the employee at the beginning of leave that while the employer cannot deny CFRA leave, it intends to deny reinstatement upon completion of the leave. This notice must be served either in person or by certified mail. The notice must explain the basis for the employer's finding that substantial and grievous economic injury will result and, if leave has begun, must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the duration of the leave and the urgency of the need for the employee to return. +2 CCR § 11089(d)(2)(D).

After an employer notifies an employee that substantial and grievous economic injury will result if the employer reinstates the employee, the employee still is entitled to request reinstatement at the end of the leave period even if he or she did not return to work in response to the employer's notice. The employer must then determine again whether reinstatement will result in substantial and grievous economic injury, based on the facts at that time. If the employer determines that substantial and grievous economic injury will result, the employer must notify the employee in writing (in person or by certified mail) of the denial of reinstatement. +2 CCR § 11089(d)(2)(F).

An employer that fails to provide the required notices will lose its right to deny restoration even if substantial and grievous economic injury will result from reinstating the key employee. +2 CCR § 11089(d)(2)(D).

An employee is entitled to continuation of health benefits during leave even if the employer has provided notification that it intends to deny reinstatement. An employee's rights under the CFRA continue until he or she informs the employer that he or she does not wish to return to work or until the employer actually denies reinstatement at the conclusion of the leave. +2 CCR § 11089(d)(2)(F).

Prohibited Actions Under the CFRA

An employer may not refuse to hire, terminate, fine, suspend or discriminate against an employee because the employee:

  • Exercised or attempted to exercise his or her right to leave under the CFRA; or
  • Provided information or testimony as to his or her leave under the CFRA, in any inquiry or proceeding related to rights guaranteed under the CFRA.

In addition, an employer may not:

  • Interfere with an employee's right to obtain leave under the CFRA; or
  • Restrain or deny employees the right to exercise or attempt to exercise any rights under the CFRA.

The amended regulations provide that any violation of the CFRA or its regulations constitutes interfering with, restraining or denying the exercise of CFRA rights. Interference includes refusing to authorize CFRA leave and discouraging an employee from using such leave. It also includes actions by an employer to avoid responsibilities under the CFRA. For example:

  • Transferring employees from one worksite to another for the purpose of reducing worksites or keeping worksites below the 50-employee threshold for employee eligibility under the CFRA;
  • Changing the essential functions of a job in order to preclude employees from taking leave;
  • Reducing an employee's work hours in order to avoid employee eligibility; and
  • Terminating an employee when the employer anticipates an otherwise eligible employee will be asking for a CFRA-qualifying leave in the future.

However, under the CFRA, employees may be terminated for the misuse of CFRA leave.

Additionally, employees (or their collective bargaining representatives) may not waive, nor may employers induce employees to waive, their prospective rights under the CFRA. This does not, however, prevent the settlement or release of CFRA claims by employees based on past employer conduct without the approval of a court. Nor does the waiver rule prevent an employee's voluntary acceptance (e.g., not as a condition of employment) of a light-duty assignment while recovering from a serious health condition. An employee's acceptance of a light-duty assignment does not constitute a waiver of the employee's prospective rights, including the right to be reinstated to the same position the employee held at the time the employee's CFRA leave commenced or to a comparable position.

+Cal Gov Code § 12945.2(t); +2 CCR § 11094.

Posting Requirement

The CFRA requires covered employers to post a notice in a conspicuous location in the workplace describing the right to CFRA leave and providing information concerning the procedures for filing complaints of violations with the Department of Fair Employment and Housing. The notice must be posted prominently where it can be readily seen by employees and applicants for employment, and the poster and text must be large enough to be easily read and contain fully legible text. Electronic posting is sufficient to meet the posting requirement. The employer must translate the notice into every language, other than English, that is spoken by at least 10 percent of the workforce at any facility. +2 CCR § 11095.

In addition to posting the notice in the workplace, employers are also encouraged to give a copy of the notice to each current and new employee and/or include the notice (or substantially similar language) in an employee handbook.

Pregnancy and Pregnancy-Related Disability Leave

Employees Qualified for Pregnancy Disability Leave

An employer with five or more full- or part-time employees must grant all female employees (including transgender employees) who are disabled by pregnancy, childbirth or related medical conditions (including medical conditions relating to lactation) a leave for a reasonable period not to exceed four actual calendar months (which equals approximately 17.33 weeks). +Cal. Gov't Code § 12945; +2 CCR § 11042.

An employee must be granted this leave regardless of her length of service or amount of hours worked. +2 CCR § 11037. In addition, this leave applies to each pregnancy (not per year) and is in addition to leave under the CFRA (the two leaves do not run concurrently).

A woman is disabled by pregnancy if, in the opinion of her health care provider, she is unable, because of pregnancy, to work or is unable to perform at least one of the essential functions of her job or to perform these functions without undue risk to herself, the successful completion of her pregnancy or other persons. +2 CCR § 11035.

The term disabled by pregnancy also applies to certain pregnancy-related conditions, including but not limited to the following:

  • Morning sickness;
  • Bed rest;
  • Gestational diabetes;
  • Pregnancy-induced hypertension;
  • Preeclampsia;
  • Post-partum depression;
  • Loss of pregnancy;
  • End of pregnancy; or
  • Recovery from childbirth, loss or end of pregnancy.

The PDL can also cover:

  • Prenatal or postnatal care;
  • Intermittent leave;
  • Reduced work schedule leave;
  • Pregnancy;
  • Childbirth; and/or
  • Related medical conditions, as set forth above.

Lactation is considered to be a potentially disabling related medical condition. However, lactation without medical complications is generally not disabling and would not require a leave of absence.

In some circumstances, lactation could require a job transfer to a different position or less stressful job (if medically advisable even if not disabled by pregnancy) or other reasonable accommodation if it is disabling.

California employers should note that California law prohibits discrimination against mothers who are breastfeeding and medical conditions related to breastfeeding. Therefore, employers may be prevented from reassigning employees to other work, requiring them to work different shifts or requesting them to take additional leave. +Cal. Gov't Code § 12926(r)(1)(C).

Notice of Pregnancy Disability Leave

Employers may require female employees to provide reasonable notice of the approximate date the employee expects to start her leave and the estimated duration of the leave. Similar to the FMLA, if the need for the leave is foreseeable, an employee must provide 30 days' notice of the date the leave will begin and the estimated duration. If 30 days' notice is not possible, the employee must give notice as soon as practicable. +2 CCR § 11050(a).

An employer may require medical certification as a condition of granting the leave or transfer, and as a condition of returning from leave, if it does so for other similarly situated employees (e.g., temporarily disabled employees).

The medical certification from the employee's health care provider should state that the employee is disabled due to pregnancy or that it is medically advisable for the employee to be temporarily transferred or to receive some other requested accommodation.

The definition of health care provider was expanded under the amended regulations to include physician assistants, marriage and family therapists, acupuncturists, licensed midwives, chiropractors, clinical psychologists and clinical social workers.

In cases of reasonable accommodations or transfers, a medical certification is considered sufficient if it contains the following:

  • A description of the reasonable accommodation or transfer;
  • A statement outlining the medical advisability of the reasonable accommodation or transfer because of the employee's pregnancy; and
  • When (the date) the need for the reasonable accommodation or transfer is medically advisable and the estimated length of need for such accommodation or transfer.

While an employer may develop its own certification form, the Fair Employment and Housing Council (FEHC) provides a medical certification form for pregnancy-related issues that the employer may use. +2 CCR § 11050(b).

An employer may not deny leave due to lack of notice where the need arises due to an emergency or other unforeseeable circumstances. +2 CCR § 11050(a)(4).

An employer must give employees advance written notice of the employee's rights and responsibilities. It must provide information about how to contact the Department of Fair Employment and Housing to file a complaint or learn more about rights and obligations under the law. While the employer may create its own notice, the FEHC provides a notice the employer can use.

Employers must distribute the notice in all of the following ways:

  • Posting in a conspicuous place - electronic posting and email is permitted. The poster and text must be large enough to be easily read and must contain fully legible text;
  • Providing it as soon as practicable to an employee who notifies the employer of her pregnancy or inquires about a pregnancy-related accommodation, transfer or leave; and
  • Including it in an employee handbook (if applicable) or distributing it annually - electronic distribution is permissible.

The employer must translate any written forms of the notice if 10 percent or more of its workforce has a primary language other than English. The FEHC provides a Spanish version of the relevant notice.

Length of Pregnancy Disability Leave

The four months of leave available to an employee due to her pregnancy-related disability is defined as the number of days (and hours) the employee would normally work within four calendar months or 17.33 workweeks. So, for example, if a full-time employee works 40 hours a week, he or she would be entitled to 693.20 hours of leave (40 hours x 17.33 weeks); whereas, if an employee normally works a 50 hours a week, that employee would be entitled to 866.5 hours of leave (50 hours x 17.33 weeks).

If an employee's schedule varies from month to month, a monthly average of the hours worked over the four months prior to the beginning of the leave should be used for calculating the employee's normal work month. Leave entitlement for part-time workers should be calculated on a pro-rata basis. For example, if an employee works 20 hours per week, the employee would be entitled to 346.60 hours of PDL (20 hours per week x 17.33 weeks), which equals four months of the employee's normal part-time schedule.

Leave must be calculated in the smallest increment offered for any other type of leave. However, PDL should never be deducted in increments of more than one hour. For example, if the smallest increment of leave offered by an employer for other leaves is one hour, then if an employee takes off one and one-half hours for a post-natal visit, the employer can deduct two hours of leave. However, if the smallest increment the employer uses is one-half hour, then the employer can only deduct one and one-half hours from the employee's leave entitlement. +2 CCR § 11042.

In addition, under certain circumstances employers may be required to extend an employee's pregnancy leave beyond four months. For example:

  • If an employer has a more generous leave policy for other temporary disabilities (providing more leave time), the employer must also provide the more generous leave to employees temporarily disabled by pregnancy;
  • If the terms of an employer's collective bargaining agreement regarding employees with temporary disabilities provides more generous leave time, the employer must provide these benefits to pregnant employees; or
  • If an employee is eligible for FMLA she may be entitled to an additional 12 workweeks of leave.

The CFRA excludes pregnancy, childbirth and related medical conditions from the definition of a serious health condition. +Cal Gov Code § 12945.2(c)(8). Thus, time off from work taken by an employee because of a pregnancy- or childbirth-related medical condition is not counted toward the CFRA 12-week time period.

Reasonable Accommodation for Pregnancy-Related Disabilities

In addition to leave time, an employee affected by pregnancy may also be eligible for a temporary transfer or another reasonable accommodation.

An employee is considered affected by pregnancy if she is pregnant or has a related medical condition (including medical conditions relating to lactation), and because of pregnancy, her health care provider has certified that it is medically advisable (not the "medically necessary" standard for other disabilities under the FMLA or CFRA) for her to temporarily transfer or to receive some other accommodation. +2 CCR § 11035(a).

An employer may not force a pregnant employee to take a leave of absence or transfer to a different position, if the employee objects, unless it is for reasons unrelated to pregnancy.

An employer should provide a temporary transfer to a less strenuous or hazardous position or duties or other accommodation to an employee affected by pregnancy if:

  • The employee requests the transfer;
  • The employee's request is based on the certification of her health care provider as medically advisable; and
  • The transfer can be reasonably accommodated by the employer under applicable law.

+2 CCR § 11041.

The right to a reasonable accommodation under the PDL is separate from any other accommodation rights that the employee may be entitled to under the Americans with Disabilities Act (ADA). In addition, there is no undue hardship defense for employers.

If an employee is granted a reasonable accommodations or a transfer, this will not reduce the employee's four-month PDL entitlement unless the employee's accommodation includes a reduction in the number of hours that the employee works (i.e., an employer can consider a reduced hours/intermittent leave as PDL time and deduct those hours from the four-month leave entitlement).

There is no length of service or minimum hours worked requirement in order for an employee to be eligible for an accommodation or transfer.

When accommodating a temporary transfer request, an employer does not have to create a new job position or make unreasonable adjustments to its structure or staffing.

An employer must create a light duty assignment for pregnant employees if it does so for occupationally injured employees.

An employer cannot transfer an employee if the employee objects unless the employee's health care provider states that a reduced schedule or intermittent leave is medically advisable and the employer temporarily transfers the employee to a position that better meets the needs of the employee. +2 CCR § 11041(c).

The length of the transfer depends upon the employee's physical condition before and after childbirth.

Reasonable accommodation for pregnancy and related medical issues includes specific types of accommodations such as:

  • Modifying work schedules to provide earlier or later hours or permit more frequent breaks (e.g., to use the restroom);
  • Modifying work duties, practices or policies;
  • Providing furniture (such as stools) and modifying equipment and devices; and
  • Providing a reasonable amount of break time and a location to express breast milk.

+2 CCR § 11035(s).

An employer should engage an employee in a good-faith interactive process to identify and implement the employee's request for reasonable accommodation. Whether a requested accommodation is reasonable should be looked at on a case-by-case basis.

Pregnancy Disability Leave on an Intermittent or Reduced Leave Schedule

Employees are not required to use pregnancy leave in one consecutive period of time and cannot be disciplined for taking intermittent pregnancy-related absences that may start shortly after the employee becomes pregnant.

When intermittent leave or leave on a reduced work schedule is medically advisable based on planned medical treatment because of pregnancy, the employer may require the employee to transfer to a temporary position with equivalent pay and benefits if it better accommodates recurring periods of leave. The employee must be reinstated to her same or a comparable position. +2 CCR § 11041.

Compensation and Benefits During Pregnancy Disability Leave

Pregnancy disability leave is not a paid leave of absence, unless the employer pays other similarly situated employees for their leave. The pregnant employee may use any accrued vacation during the leave. The employer may require, or an employee may elect to use, accrued sick leave during any unpaid portion of the leave.

Employers must provide pregnant employees with the same benefits (i.e., fringe benefits) granted to other similarly situated employees.

Employers with between four and 15 employees no longer have an exemption from offering health coverage or allowing pregnant employees to participate in certain training programs.

Employers must maintain group medical insurance coverage for up to four calendar months for PDL, on the same terms as if the employee had not taken leave. In addition, if an employee is also covered by the FMLA or the CFRA, then the employer may be obligated to continue the employee's health insurance coverage for up to 12 additional workweeks (for a period of up to seven months if the employee takes the maximum pregnancy disability and CFRA baby bonding leave). +2 CCR § 11044.

Employers' Obligations for Employees Returning from Pregnancy Disability Leave

Upon granting a disability leave or transfer, an employer must provide the employee with a written guarantee of reinstatement if requested.

An employee returning from PDL must be returned to her original job unless the job ceases to exist because of legitimate reasons unrelated to pregnancy. This entitlement to the same positions is different from the FMLA and the CFRA which requires reinstatement to the same or comparable position. If an employee takes CFRA leave after PDL, CFRA controls the reinstatement process.

An employer cannot deny reinstatement because the employer believed that holding the employee's job open would have substantially undermined the employer's ability to operate its business safely and efficiently. However, an employer can refuse to reinstate an employee if the employer can show that the job was eliminated for a legitimate business reason (even if a written guarantee of reinstatement was provided).

If an employee's same position is not available in the employee's scheduled return date, the employer should provide the employee with a comparable job on their scheduled return date or within 60 calendar days of that return date. A comparable job is one that is virtually identical to the employee's pre-leave position, in terms of pay, benefits and working conditions. The job must have the same or substantially the same duties and responsibilities, skill requirements, effort and authority.

An employer has an affirmative duty to provide notice of available (open and comparable) positions to the employee. It is not enough for an employer to just give the employee the option to search for jobs - a link to a website job posting would be sufficient.

An employer can refuse to reinstate an employee to a comparable position if the employer can show that it would not have offered the comparable position to the employee even if she had not taken leave. In addition, an employer does not have to provide pay or benefits during the 60-day period.

If an employer and employee agreed upon a specific return date from pregnancy disability leave, the employer must reinstate the employee on that date. In cases where an employee takes longer than the four calendar month period of leave, the employee must be reinstated within two business days, where feasible, after the employer is notified.

Before the employee will be allowed to return to work in their regular job following a leave of absence or a transfer, the employee must provide his or her supervisor with a certification from a health care provider that the employee can perform safely all the essential duties of the position, with or without a reasonable accommodation. +2 CCR § 11043.

Practical Example

Petra is a stock room employee for Acme Grocery Stores. Petra is currently out on pregnancy disability leave. Before Petra went out on leave she received a written guarantee of reinstatement to her same job.

Unfortunately, while Petra was out on leave, Acme Grocery suffered huge monetary losses which forced them to conduct a reduction-in-force (RIF) that included the elimination of all stock room employees. Acme Grocery can include Petra in the RIF (even though she had a written guarantee of reinstatement) if she would have been included in the RIF had she not taken leave. Acme Grocery should, however, notify Petra of the RIF while she is out on leave.

If Acme Grocery decides that, instead of terminating all stock room employees they will just cut the number of employees in half and require each employee to interview for the slots - they must give Petra the opportunity to interview for the position while on leave. Acme Grocery should engage Petra in an interactive process to determine how to best do the interview (e.g., by phone or in person).

Prohibited Actions

It is an unlawful employment practice for an employer to:

  • Discriminate against an employee due to her pregnancy (or a perception that an employee is affected by her pregnancy); or
  • Discriminate against an employee because she exercised her right to take pregnancy disability leave or a transfer.

Employers do not have to grant transfers, accommodations or leaves based on perceived pregnancy. Employers should include perceived pregnancy as a protected characteristic under any discrimination, harassment and retaliation policies. +2 CCR § 11036; +2 CCR § 11039.

Practical Example

Marlene is pregnant. She is eligible to take leave under the FMLA, CFRA and California's Pregnancy Disability Leave (PDL) law. During her first two trimesters of pregnancy, she missed 20 days (or four weeks) of work because of morning sickness and prenatal doctor appointments. She has presented a note from her doctor stating that she will be disabled due to her pregnancy two weeks prior to the baby's birth and for six weeks after the baby's birth. Marlene also wants to bond with the baby once the baby is born. The time Marlene took off for morning sickness and prenatal appointments (i.e., pregnancy related disabilities or conditions) is considered to be time off due to a serious health condition under FMLA. It is also time considered to be taken off from work covered under PDL.

As of the date the baby is born, Marlene has used six weeks of her FMLA entitlement and six weeks of PDL. The six week period after the baby's birth-certified by her health care provider as time she is disabled due to pregnancy - will also be covered as a serious health condition under the FMLA and a pregnancy disability under PDL. By the time she is no longer disabled due to the pregnancy, Marlene will have used up her 12 weeks of FMLA and 60 days (or 12 weeks) of PDL. Once she is no longer disabled due to the pregnancy, Marlene will also have 12 weeks of CFRA available to her to bond with the baby.

If at the end of Marlene's PDL and baby bonding leave she advises her supervisor that she has postpartum depression and is still unable to return to work - Marlene's supervisor should not automatically terminate her. Instead, Marlene's supervisor needs to consider if Marlene is disabled under the ADA or the FEHA. If Marlene is disabled, her employer should consider their obligations under these other laws and determine whether or not to grant additional leave or otherwise accommodate Marlene.

New Parent Leave Act

Under the New Parent Leave Act (NPLA), California employers that directly employ 20-49 employees within 75 miles must provide up to 12 weeks of unpaid leave to employees who are new parents. +Cal Gov Code § 12945.6.

Employers with 50 or more employees are covered by the California Family Rights Act (CFRA) and federal Family and Medical Leave Act (FMLA).

While the NPLA does not define "directly employ," an employer may wish to look to the CFRA's definition.

Employee Eligibility

New parent leave is available to employees:

  • Who have worked for the employer for more than 12 months prior to the commencement of leave;
  • Who have worked at least 1,250 hours during the previous 12-month period; and
  • Who work at a worksite with 20-49 employees within 75 miles.

Qualifying Reasons for Leave

Employees may request leave to bond with a new child within one year of the child's birth, adoption or foster care placement.

If both parents work for the same employer, they may receive a combined 12 weeks of leave total. The employer may, but is not required to, grant simultaneous leave to the two parents.

Compensation and Benefits During Leave

An employee on leave has the option to use any accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer. Employees may also be eligible for paid family leave insurance benefits during NPLA leave.

An employer must maintain and pay for the employee's group health plan coverage during leave at the level and under the conditions that coverage would have been provided had the employee not taken leave. However, the employer may recover the cost of the premiums it paid if:

  • The employee does not return to work after the period of leave has expired; and
  • The employee's failure to return to work is for a reason other than the continuation, recurrence or onset of a serious health condition or other circumstances beyond the employee's control.

Reinstatement Rights

Prior to the beginning of an employee's leave, an employer must provide a guarantee of reemployment to the same or a comparable position when the leave ends. If an employer does not provide such a guarantee, it will be deemed to have refused to allow the leave.

Employer Notice Requirements

The NPLA requires covered employers to post a notice in a conspicuous location in the workplace describing the Act's provisions and providing information concerning the procedures for filing complaints of violations with the Department of Fair Employment and Housing (DFEH). The notice must be posted prominently where it can be readily seen by employees and applicants for employment, and the poster and text must be large enough to be easily read and contain fully legible text. Electronic posting is sufficient to meet the posting requirement. The employer must translate the notice into every language, other than English, that is spoken by at least 10 percent of the workforce at any facility.

If the employer publishes an employee handbook that describes other kinds of personal or disability leaves available to its employees, then it must include a description of NPLA leave.

In addition, employers are encouraged to give a copy of the notice to each current and new employee, to ensure that copies are otherwise available to all employees and to disseminate the notice in any other way.

+2 CCR § 11095.

Employee Notice Requirements

The NPLA does not address an employee's notice obligations. However, NPLA regulations providing a model notice for employers to display (discussed above) says that employees must, if possible, provide at least 30 days' advance notice for foreseeable absences (e.g., birth of a child, planned medical treatment). For unforeseeable absences, an employee must provide notice (at least verbally) as soon as the employee learns of the need for leave. Failure to comply with these notice rules may be grounds for deferral of the requested leave until the employee complies.

Prohibited Actions

An employer is prohibited from:

  • Interfering with, restraining or denying the exercise of, or the attempt to exercise, any right provided by the NPLA; and
  • Refusing to hire, terminating, fining, suspending, expelling or discriminating against an individual because he or she:
    • Exercised the right to parental leave; or
    • Gave information or testimony as to his or her own parental leave, or another person's parental leave, in an inquiry or proceeding related to rights guaranteed by the NPLA.

Mediation

The NPLA requires the DFEH to create a parental leave mediation pilot program. Under the mediation program, an employer may request to participate in mediation within 60 days of receiving a right-to-sue notice. During this time, the employee's statute of limitations is tolled, and the employee may not file a civil suit against the employer until:

  • The mediation is complete, meaning either party notifies the DFEH that it is electing not to participate in, or is withdrawing from, the mediation; or
  • The DFEH notifies the parties that it believes further mediation would be fruitless.

The mediation pilot program provisions have an automatic repeal date of January 1, 2020. The remainder of the NPLA remains in effect after that date.

Interaction With Other Laws and Policies

The NPLA does not apply to workers who are covered by the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). Eligible employees who work in a location with 50 or more employees within 75 miles are already entitled to receive 12 weeks of unpaid leave for new parents under those laws. An employer should be mindful that, depending on the location of its worksites and the number of employees working at each site, it may have employees covered by the NPLA in addition to employees covered by the FMLA and CFRA and must ensure that its leave policies and procedures comply with the relevant laws.

New parent leave may be taken in addition to leave under California's pregnancy disability leave law, if the employee qualifies for both leaves.

Employer Action Steps

An employer should:

  • Consult with knowledgeable employment counsel to determine if any employees are covered by the new parent leave law;
  • Create leave policies and procedures that comply with the law; and
  • Train HR, management and supervisory staff on the law and the administration of relevant policies and procedures.

State Disability Insurance

California's State Disability Insurance (SDI) program provides partial wage replacement under a variety of programs to workers that qualify, including Temporary Disability Insurance and paid family leave under Family Temporary Disability Insurance. This is a monetary benefit, not a leave entitlement. These paid SDI benefits can be received while the employee is on leave under the CFRA and the federal FMLA. SDI is available for a maximum of 52 weeks and is paid for with contributions from taxes withheld from employees' wages. The SDI program is administered by the state and applies to employers with one or more employees that pay $100 or more in wages in a calendar quarter. Employees receive 60 percent of their average weekly earnings. Paid benefits begin after the first seven days of the disability.

California's Family Temporary Disability Insurance (FTDI) program provides up to six weeks of paid family leave (PFL) insurance benefits every 12 months through California's SDI program. See Future Developments.

San Francisco has an ordinance for paid parental leave benefits that supplements the state PFL insurance program. See Local Requirements.

Covered Employers

Covered employers are those with one or more employees, whose employees participate in the SDI program. +Cal. Unemp. Ins. Code § 2602; +Cal. Unemp. Ins. Code § 675.

Employee Eligibility

There is no length of service requirement for an employee to receive PFL benefits. An employee is eligible to receive FTDI benefits if the individual has made a claim for temporary disability benefits as required by the law and has filed a certificate to establish medical eligibility. +Cal. Unemp. Ins. Code § 3303.

An employee may not receive PFL benefits if:

  • The employee is receiving SDI, unemployment insurance or workers' compensation benefits;
  • The employee is not working or looking for work when the employee begins family care leave;
  • The employee is not suffering a wage loss;
  • The need for care is not supported by a health care provider's certification;
  • The employee is in custody because of a criminal conviction; or
  • Another family member is ready, willing, able and available for the same time period in a day that the employee is providing the required care (i.e., the employee is not the primary caregiver).

+Cal Unemp Ins Code § 3303; +Cal Unemp Ins Code § 3303.1; +Cal Unemp Ins Code § 2680.

More than one individual can be considered a caregiver, but individuals can only receive PFL benefits for the days/hours they are the primary caregiver. +22 CA ADC § 3303.1(a)-1.

Qualifying Reasons for Leave

An eligible employee may file a claim for PFL benefits for the following reasons:

  • To care for a seriously ill parent, child, spouse (including a same-sex spouse), registered domestic partner, grandparent, grandchild, sibling or parent-in-law (including the parent of a registered domestic partner); and
  • To bond with a minor child within the first year of the child's birth, adoption or foster care placement.

+Cal. Unemp. Ins. Code § 3301. See Future Developments.

A child includes a biological, adopted or foster son or daughter; a stepson or stepdaughter; a legal ward; a son or daughter of a domestic partner; or the person to whom the employee stands in loco parentis.

A parent includes a biological, foster or adoptive parent; a stepparent; a legal guardian; or other person who stood in loco parentis to the employee when the employee was a child.

A sibling is a person related to the employee by blood, adoption or affinity through a legal or biological parent.

+Cal Unemp Ins Code § 3302.

A serious health condition for which an employee may receive PFL benefits means an illness, injury, impairment, or physical or mental condition of the care recipient that includes:

  • Inpatient care in a medical care facility or subsequent, connected treatment;
  • Continuing treatment by a health care practitioner, including:
    • Incapacity for over three consecutive calendar days;
    • Incapacity due to pregnancy or for prenatal care;
    • Incapacity due to a chronic serious health condition;
    • Incapacity that is permanent or long term; or
    • Any period of absence to receive multiple treatments by a health care practitioner.

Generally, cosmetic treatment and common, minor illnesses are not considered serious health conditions. +22 CA ADC 3302-2.

Benefit Amounts

An eligible employee may collect a weekly benefit amount that is 60 percent of average weekly earnings shown in the highest quarter of the employee's base period (or 70 percent for employees earning under a certain income level). +Cal Unemp Ins Code § 2653; +Cal Unemp Ins Code § 2655.

Unlike SDI, no waiting period applies for PFL benefits.

Employees may choose to use, but the employer may not require that employees use, any accrued but unused sick leave benefits prior to receiving PFL benefits. An employer may require an employee to use up to two weeks of earned but unused vacation leave or paid time off (PTO) prior to the employee's initial receipt of PFL benefits in any 12-month period in which the employee is eligible for PFL benefits. +Cal Unemp Ins Code § 3303.1.

Required Notices

An employer must prominently post notice DE 1857A or DE 1858 on SDI and PFL. Employers registered with the EDD are provided with the appropriate notice under the Unemployment Insurance Code.

An employer must also provide appropriate brochures to employees, including:

  • DE 2511 on PFL to new employees and to each employee who leaves work to care for a seriously ill family member or for new-child bonding; and
  • DE 2320 to all terminated employees.

+Cal Unemp Ins Code § 2613.

Integration/Coordination of Benefits

While an employee is receiving PFL benefits, an employer may choose to provide wages, including allowing the employee to use available paid leave time (e.g., sick, bereavement), so the employee could potentially receive up to 100 percent of normal gross weekly wages for the benefit period. It is both the employer's and employee's responsibility to ensure the employee does not receive more than the equivalent of 100 percent of normal gross wages. The employer must notify the EDD in order to use (or stop using) this integration/coordination process.

Employers should note that leave required by a state or local law is not considered when determining the amount of leave provided by an employer for federal tax credit purposes under the federal tax reform law.

Interaction With Other Laws

If an employee is entitled to take leave under the federal Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA), the leave must be taken while the employee receives PFL benefits. PFL benefits do not provide an employee with job protection or reinstatement rights, but such protections exist under the FMLA and CFRA. +22 CA ADC 3301(a)-1.

Kin Care Leave

State law requires employers to provide paid sick leave to employees. See Paid Sick and Safe Time. Employees must be permitted to use one-half of their accrued annual sick leave allotment (i.e., what would be accrued in six months of employment) to care for a sick family member. For example, an employee who earns one week of sick leave per year could use two and one-half days to care for a child with bronchitis - but only after the employee earns those days; if the employee accrues 10 days of sick leave each year, then five days may be used to care for the child. The remaining sick leave may be restricted to use for the employee's own illnesses. This is in contrast to the state paid sick leave law, which allows an employee to use all available accrued leave time to care for a family member.

A covered family member includes the employee's:

  • Child - includes a biological, adopted or foster child, stepchild, legal ward or a child to whom the employee stands in loco parentis (e.g., an aunt who raises her sister's child). The law does not require that the child be a minor;
  • Parent - includes a biological, adoptive or foster parent, stepparent or legal guardian of an employee or the employee's spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child;
  • Spouse;
  • Registered domestic partner;
  • Grandparent;
  • Grandchild; and
  • Sibling.

Unlike family leave, kin care applies to small employers and does not require that the individual have a serious illness. The kin care law defines sick leave as accrued increments of compensated leave meant for any of the reasons specified in California's paid sick leave law:

  • Diagnosis, care or treatment of an existing health condition of, or preventive care (e.g., annual physicals or flu shots) for, an employee or an employee's family member; and
  • For an employee who is a victim of domestic violence, sexual assault or stalking:
    • To obtain or attempt to obtain any relief (e.g., a temporary restraining order, restraining order or other injunctive relief) to help ensure the health, safety or welfare of the victim or his or her child;
    • To seek medical attention for injuries caused by domestic violence, sexual assault or stalking;
    • To obtain services from a domestic violence shelter, program or rape crisis center as a result of domestic violence, sexual assault or stalking;
    • To obtain psychological counseling related to an experience of domestic violence, sexual assault or stalking; or
    • To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault or stalking, including temporary or permanent relocation.

Sick leave does not include benefits such as workers' compensation benefits, unemployment compensation disability benefits, or benefits not payable from the employer's general assets.

The law does not require that the amount of days available for kin care carry over from one year to the next. An employer can limit the amount of kin care leave to one-half of the year's allotment of sick leave, regardless of the amount of leave taken or not taken the year before.

An employer can place the same conditions and restrictions on kin care leave that it places on an employee's use of sick leave. For example, if an employer requires that an employee provide a doctor's note when the employee uses sick leave, the employer can require a doctor's note for kin care leave (e.g., a note from the pediatrician of the employee's sick child). An employer can also require an employee to sign a statement saying that the time the employee is taking off is for kin care. The statement could say, for example:

I, Annie Employee, will be absent on [date] for a reason [insert reason] that qualifies under California's kin care law (e.g., leave to care for an ill child or parent, spouse or registered domestic partner). I hereby certify, as indicated by my signature below, that my request for leave meets the definition of kin care and I request that this absence be charged against my sick leave and counted as kin care. I understand that providing false or misleading information about my use of sick leave/kin care is a violation of Company policy and can result in a disciplinary action, including termination.

[Insert Signature]

However, an employer should be cautious with respect to the circumstances under which it requires a doctor's note. The state paid sick leave law does not have an express provision allowing employers to require medical certification. See Employee Leaves > Other Leaves: California > Paid Sick Leave.

If an employer offers another leave option, such as paid time off (PTO), the entire allotted time will be considered sick leave for kin care purposes. Half of the total PTO accrual will be subject to kin care.

The kin care law does not extend the maximum period of leave to which an employee is entitled under the CFRA or the FMLA. Therefore, if the employee's kin care leave qualifies for FMLA or CFRA protection, the paid sick leave (kin care leave) would run concurrently with the leave entitlements offered by the FMLA and CFRA.

+Cal Lab Code § 233.

An employer faces financial penalties imposed by the state or through a lawsuit if it:

  • Denies an employee the right to use sick leave to provide kin care;
  • Takes another adverse action (e.g., termination, demotion) against an employee for using or attempting to use sick leave for kin care; or
  • Has an absence control policy that counts sick leave taken for kin care as an absence that may lead.

+Cal Lab Code § 234.

California passed the Healthy Workplaces, Healthy Families Act (HWHFA), becoming the second state behind Connecticut to pass a paid sick leave law requiring private employers to provide paid sick and safe time to eligible employees. The California Labor Commissioner subsequently released FAQs.

The HWHFA applies to any employer that has at least one employee who works 30 days or more in a year in the state of California. Unlike other paid sick leave laws, the HWHFA does not have a carve out for small employers. The HWHFA applies to all private employers, and for-profit and not-for-profit employers.

Under the HWHFA, eligible employees are those who have worked in California for the same employer for 30 days or more within a year of beginning employment, with limited exceptions. This includes:

  • Part-time employees;
  • Per diem employees;
  • Temporary employees;
  • Out-of-state employees who work enough time within California (i.e., 30 days or more per year);
  • Temporary employees hired through a staffing agency, if the employer is considered a joint employer; and
  • Providers of in-home supportive services.

+Cal Lab Code § 245.5; +Cal Lab Code § 246.

Practical Example

Acme Consultants has offices in Colorado, Utah, New Mexico and Arizona. Marie, a long-term employee from the Arizona office works from home, in California, two days a week. Marie will be eligible for paid sick and safe time because she will have worked in California, for Acme, for 30 days or more in a year.

There are limited exceptions to employee eligibility. The following employees are not eligible for paid sick and safe time:

  • Individuals employed by an air carrier as flight deck or cabin crew members who are subject to the provisions of Title II of the federal Railway Labor Act and who are provided compensated time off equal to or exceeding the amount required under the HWHFA;
  • Employees covered by a valid collective bargaining agreement (CBA), if the agreement expressly provides for the wages, hours of work and working conditions of employees, and expressly provides for paid sick days or a paid leave or paid time off (PTO) policy that permits the use of sick days for those employees, final and binding arbitration of disputes concerning the application of its paid sick days provisions, premium wage rates for all overtime hours worked, and regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate; or
  • Employees in the construction industry covered by a valid CBA if the agreement expressly provides for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and regular hourly pay of not less than 30 percent more than the state minimum wage rate, and the agreement either:
    • Was entered into before January 1, 2015; or
    • Expressly waives the requirements of the HWHFA in clear and unambiguous terms.

Properly classified independent contractors are not covered by the HWHFA.

An eligible employee may begin to use granted paid sick and safe time beginning on their 90th day of employment, after which they may use leave as it accrues.

Upon an employee's oral or written request, an employer must provide paid sick and safe time for the following purposes:

  • Diagnosis, care or treatment of an existing health condition of, or preventive care (e.g., annual physicals or flu shots) for, an employee or an employee's family member; and
  • For an employee who is a victim of domestic violence, sexual assault or stalking:
    • To obtain or attempt to obtain any relief (e.g., a temporary restraining order, restraining order or other injunctive relief) to help ensure the health, safety or welfare of the victim or his or her child;
    • To seek medical attention for injuries caused by domestic violence, sexual assault or stalking;
    • To obtain services from a domestic violence shelter, program or rape crisis center as a result of domestic violence, sexual assault or stalking;
    • To obtain psychological counseling related to an experience of domestic violence, sexual assault or stalking; or
    • To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault or stalking, including temporary or permanent relocation.

+Cal Lab Code § 230(c); +Cal Lab Code § 230.1(a); +Cal Lab Code § 246.5.

Family member includes:

  • A biological, adopted or foster child, stepchild, legal ward or a child to whom the employee stands in loco parentis;
  • A biological, adoptive or foster parent, stepparent or legal guardian of an employee or the employee's spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child;
  • A spouse;
  • A registered domestic partner;
  • A grandparent;
  • A grandchild; and
  • A sibling.

The definition of a child is applicable regardless of age or dependency status. +Cal Lab Code § 245.5.

Because the definition of family member is broader under the HWHFA than under the FMLA and the CFRA, employers need to be careful how they track and charge time. For example, the FMLA and CFRA do not cover care for a grandchild. If an employee takes paid sick leave to care for his or her grandchild, such time cannot be charged against his or her FMLA and/or CFRA leave bank. When a request for leave comes in, the employer should always check to see which leave laws are implicated and then track time accordingly.

With respect to interaction with the CFRA and the kin care law, the HWHFA expressly states it does not preempt, limit or otherwise affect the applicability of any other law, regulation, requirement, policy or standard that provides for greater accrual or use by employees of sick days, whether paid or unpaid, or that extends other protections to an employee. +Cal Lab Code § 249. Thus, to the extent an employee wishes to use accrued paid sick and safe time for a qualifying purpose under both the CFRA and the HWHFA, the employee could receive pay for a portion of a CFRA leave.

With respect to interaction with an employer's sick leave policies, an employer is not required to provide additional paid sick days if:

  • The employer has a paid leave policy or paid time off policy;
  • The employer makes available an amount of leave that may be used for the same purposes and under the same conditions as specified by the paid sick and safe time law; and
  • The policy:
    • Satisfies specified accrual, carryover and use requirements as set forth in the paid sick and safe time law; or
    • Was in effect prior to January 1, 2015, and provided no less than one day or eight hours of accrued sick leave or paid time off within three months of employment of each calendar year or 12-month period, and employees were eligible to earn at least three days or 24 hours of sick leave or paid time off within nine months of employment.

For additional information on this law, including accrual and use, employee and employer notice requirements, recordkeeping and more, please see Employee Leaves > Other Leaves: California.

Family Military Leave

All employers with 25 or more employees must allow the spouse (including a same-sex spouse) of a qualifying servicemember to take up to 10 days of unpaid leave while their spouse is on leave from deployment. Qualifying servicemembers include:

  • A member of the Armed Forces of the United States who has been deployed during a period of military conflict to an area designated as a combat theater or combat zone by the President of the United States;
  • A member of the National Guard who has been deployed during a period of military conflict; or
  • A member of the Reserves who has been deployed during a period of military conflict.

To be eligible for California family military leave, an employee must have worked at least an average of 20 hours per week. +Cal Mil & Vet Code § 395.10(b). The employee must provide the employer with notice of their intent to take the leave within two days of receiving notice that the servicemember will be on leave from deployment. Written documentation may be required by the employer.

CFRA leave does not include a military exigency leave, so qualifying employees who use military exigency leave under the FMLA are still eligible for CFRA leave. See Employee Leaves > FMLA > Qualifying Reasons for Leave.

Interaction of State and Federal Leave Laws

There are numerous types of other leaves that may be available to California employees - some required by federal, state, or local law, and some provided by company policy, as well as several sources of income replacement. See Other Leaves: California.

California employers must be conscious of the interaction between the FMLA, the CFRA, and the federal Americans with Disabilities Act (ADA). An employee with a serious health condition who exhausts his or her leave entitlement under the CFRA and FMLA may nonetheless be entitled to additional leave, if additional leave would be considered a reasonable accommodation under the ADA and the employee is otherwise eligible for protection under the ADA. The FMLA regulations state that the ADA allows an indeterminate amount of leave, barring undue hardship to the employer, as a reasonable accommodation. Leave is also a recognized accommodation under the California Fair Housing and Employment Act. +29 C.F.R. § 825.702(b). See also Disabilities (ADA) > ADA Interplay; Disabilities (ADA): California.

Further, as discussed above, the Pregnancy Disability Leave Law provides for leave separate and distinct from that provided for under the FMLA and CFRA.

Some of these laws can run at the same time, while others cannot. California employers should remain alert to the various types of leave available and take care to track employees' leaves of absence, including:

  • The date the leave begins;
  • The type of leave; and
  • The expected return date.

For more information on the various other state leaves, please see Employee Leaves > Other Leaves: California.

Local Requirements

Berkeley Paid Sick Leave

Under the City of Berkeley's Paid Sick Leave Ordinance (BPSLO), employers with 25 or more employees during a given week must provide up to 72 hours of paid sick leave per year, while smaller employers with 24 or fewer employees during a given week must provide up to 48 hours.

To determine the number of employees performing work for an employer during a given week, all persons performing work for compensation on a full-time, part-time or temporary basis must be counted, including those made available through a temporary services or staffing agency or similar entity. Berkeley, California Code of Ordinances Sec. 13.100.030.

Berkeley is located near the San Francisco Bay area. Due to its close proximity to San Francisco, Oakland and Emeryville, all of which have paid sick leave ordinances, Bay Area employers may have overlapping paid sick leave compliance obligations at the local and state level.  When any laws differ, the employer must follow whichever provision or benefit is most favorable to the employee.

Covered Employers

The BPSLO applies to all employers, regardless of size and regardless of where they are located. Berkeley, California Code of Ordinances Sec. 13.100.030.

Employee Eligibility

To be eligible for leave under the BPSLO, an employee (including part-time and temporary employees) must:

  • Perform at least two hours of work in a calendar week for a covered employer within the geographic boundaries of Berkeley; and
  • Qualify as an employee entitled to payment of the state minimum wage from any employer or participate in a Welfare-to-Work Program.

Berkeley, California Code of Ordinances Sec. 13.100.030.

An employee does not need to be a resident of Berkeley.

Qualifying Reasons for Sick Leave

An eligible employee may use paid sick leave for the following reasons:

  • When the employee is ill, injured or receiving medical care, treatment or diagnosis; and
  • To care for an eligible family member who is ill, injured or receiving medical care, treatment or diagnosis.

A family member includes an employee's:

  • Child (including a biological, foster, adopted and stepchild; a legal ward; a child of a domestic partner; and a child of a person standing in loco parentis);
  • Parent (including a biological, foster, adoptive and stepparent and a legal guardian);
  • Sibling (including a biological, foster, adopted and stepsibling);
  • Grandparent (whether a biological, foster, adoptive and stepgrandparent);
  • Grandchild (whether a biological, foster, adopted and stepgrandchild); and
  • Spouse or registered domestic partner (under any state or local law) or designated person.

An employee who does not have a spouse or registered domestic partner may designate one person for whom the employee may use paid sick leave to aid or provide care for that person. The opportunity to make such a designation must be extended to the employee no later than the date on which he or she has worked 30 hours after paid sick leave begins to accrue. The employee must then designate a person within 10 workdays of the employer providing the designation opportunity. After the initial designation period, an employer must provide an employee with the opportunity to make a designation (including changing a previously made designation) on an annual basis with a window of 10 workdays for the employee to make the designation.

Berkeley, California Code of Ordinances Sec. 13.100.040(B).

Accrual and Use of Sick Leave

Employees accrue one hour of paid sick leave for every 30 hours worked.

Employees hired before October 1, 2017, and who accrued paid sick leave under the state Healthy Workplaces, Healthy Families Act (HWHFA) prior to this date continue to accrue and use paid sick leave in accordance with the HWHFA. Employees who had not accrued paid sick leave under the HWHFA by October 1, 2017, begin to accrue leave under the BPSLO the later of October 1, 2017, or when employment begins.

Employees may begin using their accrued leave 90 calendar days after employment begins (unless the employer allows leave to be used earlier).

An employer with 25 or more employees may cap accrual at 72 hours of paid sick leave, but may not cap employees' use of leave. An employer with fewer than 25 employees may cap accrual and use at 48 hours.

Accrued paid sick leave must carry over from year to year (whether calendar or fiscal), but it cannot exceed the accrual caps (i.e., 72 or 48 hours).

Berkeley, California Code of Ordinances Sec. 13.100.040.

Interaction With Other Laws and Policies

The BPSLO provides minimum requirements pertaining to paid sick leave. It does not preempt, limit or otherwise affect the applicability of any other law, regulation, requirement, policy or standard that provides for greater accrual or use of sick leave, whether paid or unpaid, or that extends other protections to employees. Berkeley, California Code of Ordinances Sec. 13.100.110.

Other policies. If an employer has an existing paid leave policy (e.g., vacation or paid time off (PTO) policy), the employer need not provide additional paid sick leave time as long as the policy allows paid leave to be taken for the same qualifying reasons and under the same conditions as the BPSLO (e.g., no additional notice or scheduling requirements permitted). Berkeley, California Code of Ordinances Sec. 13.100.040.

The BPSLO does not prevent an employer from adopting or retaining leave policies that are more generous than policies that comply with the law. Berkeley, California Code of Ordinances Sec. 13.100.120.

Collective bargaining agreements. All or any portion of the BPSLO may be waived in a bona fide collective bargaining agreement (CBA), as long as the waiver is explicitly set forth in the CBA in clear and unambiguous terms. Berkeley, California Code of Ordinances Sec. 13.100.050.

For more details, please see Other Leaves: California.

Emeryville Paid Sick Leave

Under the City of Emeryville's paid sick leave ordinance, large employers with 56 or more employees must provide up to 72 hours of paid sick leave per year, while smaller employers with 55 or fewer employees must provide up to 48 hours.

Emeryville is located in the San Francisco Bay area. Thus, due to the proximity to San Francisco and Oakland, both of which have paid sick leave ordinances, Bay Area employers may have overlapping paid sick leave compliance obligations at the local and state level. Emeryville's ordinance is similar to those of San Francisco and Oakland, and expressly states that it is intended to be broader than California's statewide law (for example, an employee only has to work two hours per week within Emeryville to be eligible, as opposed to California's requirement of 30 days per year).

The city has published final regulations and FAQs to help an employer comply with the ordinance.

Covered Employers

A covered employer is an employer with employees working within the Emeryville boundaries.

Employers not physically located in Emeryville may be subject to the ordinance if they have any eligible employees.

Employee Eligibility

Full-time, part-time and temporary employees who work at least two hours per calendar week within Emeryville are eligible to accrue paid sick time, regardless of where their employer is located.

An employee is ineligible for paid sick leave if he or she is a properly classified independent contractor or is subject to a bona fide collective bargaining agreement (CBA) that clearly and unambiguously waives the paid sick leave ordinance's provisions.

Accrual and Use of Leave

An employee accrues one hour of sick leave for every 30 hours worked in Emeryville, up to 48 or 72 hours (depending on employer size). Accrual starts on the first day of employment. If an employee reaches the accrual cap and then uses some of his or her sick time, then the employee begins accruing additional sick time until he or she reaches the accrual cap. Frontloading is allowed.

Employees may use accrued sick leave beginning on the 90th day of employment. In each year of employment, an employee may use up to the total number of leave hours accrued.

An employee's unused accrued time carries over from year to year (whether calendar or fiscal year), but it is limited to the accrual caps.

An employee may use accrued paid sick time for the following purposes:

  • The employee is physically or mentally unable to perform duties due to an illness, an injury or a medical condition;
  • To obtain professional diagnosis or treatment for an employee's medical condition;
  • For an employee's other medical reasons, such a pregnancy or obtaining a physical examination;
  • To aid or care for a family member who is ill, injured or receiving medical care, treatment or diagnosis;
  • To aid or care for a guide dog, signal dog or service dog of the employee, a family member or the employee's nonfamily designee; and
  • If the employee is a victim of domestic violence, to:
    • Receive medical attention and psychological counseling;
    • Obtain social services;
    • Relocate;
    • Seek legal assistance; and
    • Otherwise take actions to protect himself or herself from further domestic violence.

Family member has the same definition as under the state ordinance. In addition, the Emeryville ordinance allows an employee who does not have a spouse or a domestic partner to designate a nonfamily member for whom he or she may use paid sick leave to provide aid or care. An employer must provide employees with notice of this right to designate nonfamily members no later than 30 days after the employee begins to accrue time. After the employer provides notice, the employee has 14 days to designate a nonfamily member. The opportunity for an employee to make or change the designation must be provided on an annual basis, by January 31, and the employee must be provided 14 days to make or change the designation.

The definitions for guide, signal and service dogs are set forth in +Cal Civ Code § 54.1.

Interaction With Other Laws and Policies

The Emeryville ordinance states that it does not preempt or prevent the establishment of "superior employment standards," i.e., other laws that have greater requirements for paid sick leave. Further, the ordinance does not impact CFRA or FMLA leave, so an employer may designate paid sick leave under the ordinance as CFRA or FMLA leave if the leave is otherwise qualifying.

An employer may use a paid time off (PTO) policy that combines sick and vacation time, but it must meet the minimum requirements of the ordinance.

Emeryville, California Code of Ordinances Chapter 37, Title 5.

For more information on Emeryville's paid sick leave ordinance (e.g., notice, recordkeeping, retaliation provisions), see Other Leaves: California.

Long Beach Paid Sick Leave

A hotel worker who works for a covered hotel employer is entitled to five days of paid sick leave per year. For more information on this law, please see Other Leaves: California.

Los Angeles Paid Sick Leave

The Los Angeles Minimum Wage Ordinance (LAMWO) requires covered employers to provide paid sick time benefits. The LAMWO, effective July 1, 2016. However, employers with 25 or fewer employees are required to provide paid sick time benefits beginning July 1, 2017. The LAMWO applies to all businesses (including corporate officers and executives). Rules & Regulations Implementing the Minimum Wage Ordinance, Regulation #2.

Employee Eligibility for Leave

To be eligible for paid sick leave, an employee must:

  • Work at least two hours in the city in a particular week;
  • Work in the city for the same employer for 30 days or more within a year (any 12-month period) after employment begins; and
  • Qualify as an employee entitled to payment of minimum wage under state law.

Part-time, temporary, and seasonal employees that meet the above requirements are covered under the ordinance. Employees who live in Los Angeles and work from home are covered under the ordinance even if their employer is not based in Los Angeles.

Los Angeles, California Municipal Code Sec. 187.01; Rules & Regulations Implementing the Minimum Wage Ordinance, Regulations #1, #2, #7.

Qualifying Reasons for Leave

An eligible employee may use sick leave under the Los Angeles ordinance for the same reasons as under the state's Healthy Workplaces, Health Families Act (HWHFA):

  • Diagnosis, care or treatment of an existing health condition of, or preventive care for, an employee or an employee's family member; and
  • For an employee who is a victim of domestic violence, sexual assault or stalking to seek medical, legal and social services and other purposes.

The definition of a covered family member also mirrors the HWHFA (i.e., child, regardless of age or dependency status; spouse; registered domestic partner; parent; spouse or domestic partner's parent; sibling; grandparent; grandchild), except the Los Angeles ordinance also covers an individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Los Angeles, California Municipal Code Sec. 187.04.

Accrual and Use of Leave

Eligible employees may begin accruing paid sick leave on July 1, 2016 (July 1, 2017, for smaller employers), or the first day of employment, whichever is later, at a rate of one hour of sick leave for every 30 hours worked. Accrual may be capped at 72 hours (although an employer may set a higher cap or no cap at all). Frontloading is allowed.

An employee may begin using accrued sick time on July 1, 2016 (July 1, 2017, for smaller employers), or on the 90th day of employment, whichever is later, and may take up to 48 hours of paid sick leave each year.

Accrued but unused paid sick leave must be carried over to the following year of employment and may be capped at 72 hours (although an employer mayset a higher cap or no cap at all).

Los Angeles, California Municipal Code Sec. 187.04.

Notice Requirements

An employer must provide an employee with paid sick leave upon the employee's written or oral request. If the need for leave is foreseeable, then the employee must provide advance notice in a manner consistent with the employer's normal method of communication (e.g., to a supervisor). If the need for leave is not foreseeable, then the employee should provide notice as soon as practicable. The employer may require reasonable documentation of an absence if the employee has used more than three consecutive days of sick leave.

The employer must post of notice of rights in the workplace and provide employees with written notice of the employer's name, address and telephone number.

Los Angeles, California Municipal Code Sec. 187.04; Los Angeles, California Municipal Code Sec. 188.03; Rules & Regulations Implementing the Minimum Wage Ordinance, Regulations #4.

Interaction With Other Laws and Policies

An employer that has a paid leave or paid time off policy or provides payment for compensated time off, such as vacation days, sick days, paid time off, holidays, floating holidays or personal days, which is at least equal to 48 hours, need not provide additional time. Los Angeles, California Municipal Code Sec. 187.04. Rules & Regulations Implementing the Minimum Wage Ordinance, Regulation #4.

The ordinance is not intended to create any power or duty in conflict with any federal or state law. Los Angeles, California Municipal Code Sec. 187.10. Thus, a Los Angeles employer may designate leave taken under the ordinance as FMLA and/or CFRA leave where applicable.

The LAMWO does not supersede the paid time off ordinance for hotel employers, which encompasses sick leave. Accordingly, employers that must comply with the hotel workers ordinance do not have to comply with comparable provisions under the LAMWO. However, managerial, supervisory and confidential employees are not covered under the hotel workers ordinance and must be provided sick time in accordance with the LAMWO

For more details on this ordinance, please see Other Leaves: California.

Los Angeles Paid Time Off and Sick Leave - Hotel Employers

The City of Los Angeles passed an ordinance requiring hotel employers to provide eligible hotel workers with paid and unpaid time off.

An eligible hotel worker will be entitled to accrue up to 96 hours of paid time off per year for sick leave, vacation or personal necessities. An eligible employee who exhausts his or her paid time off for a year is entitled to take up to an additional 80 hours of unpaid sick leave for the illness of the employee or his or her immediate family member.

For more information on this ordinance, please see Employee Leaves > Other Leaves: California.

Oakland Paid Sick Leave

All employers, regardless of size or location, must provide paid sick leave to employees who work within the City of Oakland. The amount of paid sick leave an employee may accrue depends on the size of the employer.

Employee Eligibility

Employee means any person who:

  • Performs at least two hours of work within a particular week within the geographic boundaries of the Oakland, including on a part-time or temporary basis; and
  • Is entitled to minimum wage under state law.

Independent contractors are not considered employees for purposes of the ordinance. Employees who travel through Oakland and stop in Oakland for work, including travel within the city to and from the work site(s), are covered and accrue leave for all hours worked in Oakland. However, employees who work outside of Oakland and who travel through Oakland, but do not stop in the city for work, are not covered. Telecommuters who live in Oakland and perform work for an employer from home, including for employers located outside of Oakland, are covered and accrue leave for all hours they work from home in Oakland.

+Oakland, California Code of Ordinances Sec. 5.92.010; Regulations Interpreting the Oakland Minimum Wage Law, § 4.

Accrual and Use of Paid Sick Leave

Employees may accrue up to 72 hours of paid sick time in a calendar year. Employees of small businesses (employers with fewer than 10 employees working for compensation during a given week) may accrue up to 40 hours of paid sick time per calendar year.

Existing employees may begin to accrue and use paid sick leave on March 2, 2015. Employees hired after this date begin accruing paid sick leave upon hire, but may not use accrued paid sick time until after 90 calendar days of employment.

+Oakland, California Code of Ordinances Sec. 5.92.030.

Qualifying Reasons for Leave

Employees may use accrued paid sick time for the following purposes:

  • The employee is physically or mentally unable to perform duties due to an illness, an injury or a medical condition;
  • To obtain professional diagnosis or treatment for an employee's medical condition;
  • For an employee's other medical reasons, such a pregnancy or obtaining a physical examination; and
  • To aid or care for a family member who is ill, injured or receiving medical care, treatment or diagnosis.

A family member includes an employee's:

  • Child (including a child of a domestic partner and a child of a person standing in loco parentis);
  • Parent;
  • Legal guardian or ward;
  • Sibling;
  • Grandparent;
  • Grandchild;
  • Spouse; and
  • Registered domestic partner.

An employee without a spouse or registered domestic partner may designate one person for whom he or she may use paid sick leave to provide aid or care.

+Oakland, California Code of Ordinances Sec. 5.92.010; +Oakland, California Code of Ordinances Sec. 5.92.030; +Cal. Lab. Code § 233(b)(4).

Impact on FMLA/CFRA

The ordinance is not intended to limit or affect the applicability of other laws; it expressly states its purpose is to set minimum labor standards. Thus, Oakland employers may designate leave taken under the ordinance as FMLA and/or CFRA leave where applicable.

For more information on leave accrual; employee notice and documentation requirements; and employer notice, posting and recordkeeping requirements, please see Other Leaves: California.

San Diego Paid Sick Leave

San Diego voters approved Proposition I, the City of San Diego Earned Sick Leave and Minimum Wage Ordinance, which took effect July 11, 2016. The San Diego City Council then passed an implementing ordinance that helped clarify the ordinance, effective September 2, 2016.

The ordinance applies to all employers, regardless of size, that have employees working in the City of San Diego. Persons that receive services under the California In-Home Supportive Services program are not considered employers. San Diego, California Municipal Code Sec. 39.0104.

Employee Eligibility for Leave

To be eligible for earned sick leave, an employee must work at least two hours in the city in one or more calendar weeks of the year and:

An employee does not include:

  • Independent contractors;
  • Individuals with mental or physical disabilities who are authorized to be employed at less than the minimum wage;
  • Persons employed under a publicly subsidized summer or short-term youth employment program; and
  • Student employees, camp counselors or program counselors of an organized camp.

San Diego, California Municipal Code Sec. 39.0104.

Qualifying Reasons for Leave

An eligible employee may use earned sick leave for the following reasons:

  • The employee's or a family member's illness, injury or medical condition;
  • The employee's or a family member's need for professional diagnosis or treatment for a medical condition;
  • Another medical reason of the employee, such as pregnancy or obtaining a physical examination;
  • The employee or a family member is a victim of domestic violence, sexual assault or stalking and needs time off to:
    • Obtain medical attention;
    • Obtain services from a victim services organization;
    • Obtain psychological or other counseling;
    • Relocate; or
    • Obtain legal services; and
  • The employee's place of business or a child's school or care provider closes due to a public health emergency.

San Diego, California Municipal Code Sec. 39.0106.

A family member includes the employee's:

  • Child (including a biological, adopted or foster child; stepchild; legal ward; child of an employee standing in loco parentis; child of a registered domestic partner or spouse);
  • Spouse (including a registered domestic partner);
  • Parent (including a biological, foster or adoptive parent; stepparent; legal guardian; person who stood in loco parentis when the employee was a minor child; parent of a registered domestic partner or spouse);
  • Grandparent;
  • Grandchild; and
  • Sibling (including a whole or half blood, adoptive or stepsibling).

San Diego, California Municipal Code Sec. 39.0104.

Accrual and Use of Leave

Eligible employees may begin to accrue earned sick leave July 11, 2016, or when employment begins, whichever is later. Employees accrue one hour of earned sick leave for every 30 hours worked within the boundaries of the city, up to 80 hours total of accrued sick leave.

Accrued leave may be used beginning July 11, 2016, or on the 91st calendar day of employment, whichever is later; after which employees may use earned sick leave as soon as it is accrued. An employer may limit an employee's use of earned sick leave to 40 hours in a benefit year.

As an alternative to employees accruing earned sick leave based on hours worked, an employer may choose to frontload 40 hours of earned sick leave at the beginning of a benefit year (i.e., a regular and consecutive 12-month period as determined by the employer).

San Diego, California Municipal Code Sec. 39.0105.

Interaction With Other Laws and Policies

The ordinance states that it is not intended to supersede any applicable current or future state or local law, rule, or regulation.

With respect to internal policies, an employer that provides an amount of paid leave (e.g., paid time off, paid vacation or paid personal days) sufficient to meet the ordinance's requirements, and allows the paid leave to be used for the same reasons and under the same conditions as the ordinance, is not required to provide additional earned sick leave. San Diego, California Municipal Code Sec. 39.0105.

An employer that provides greater paid time off than required, whether through a contract, collective bargaining agreement, employment benefit plan or other arrangement, is considered in compliance even if it uses an alternative methodology for calculation of, payment of and use of earned sick leave or other paid time off that can be used as earned sick leave.

For more details on this ordinance, please see Other Leaves: California.

San Francisco Family Friendly Workplace Ordinance

The City of San Francisco adopted a Family Friendly Workplace Ordinance (FFWO), which prohibits caregiver discrimination and gives employees a right to request flexible or predictable working arrangements to care for:

  • A child or children (includes a biological, adopted or foster child, a stepchild, a legal ward and a child of a person standing in loco parentis to that child, who is under 18 years of age);
  • Family members with serious health conditions (includes parents, siblings, spouses, domestic partners, grandchildren and grandparents); or
  • Parents 65 years or older.

See Managing Employees in Special Situations: Federal.

The employee must be the primary contributor to the family member's ongoing care. See also Legislative Fact Sheet.

Coverage and Eligibility

A covered employer under the FFWO is an employer with 20 or more employees anywhere (i.e., not just in California). Therefore, if an employer has 19 employees in Oregon but one in San Francisco, that employer must comply with the FFWO as to that one San Francisco employee. See OLSE Presentation Regarding the FFWO; EEOC's Employer Best Practices for Workers with Caregiving Responsibilities.

The ordinance does not apply to federal, state or local government employers, other than the City and County of San Francisco.

To be eligible for an accommodation under the FFWO, employees, including part-time employees, must have worked for a covered employer for at least six months and must regularly work at least eight hours per week.

Accommodation

A flexible working arrangement is defined as a work arrangement that assists employees with caregiving responsibilities, and includes:

  • Changes in start and end times;
  • A reduction in the number of hours an employee is required to work;
  • Job-sharing;
  • Working from home;
  • Telecommuting; and
  • Changes in work duties or part-year employment.

A flexible working arrangement may also include taking time off from work to care for an eligible family member. Because the ordinance is very broad in the types of accommodations it allows, as well as in the reasons for requesting accommodations, a request for leave under the law could be for a discrete block of time or for intermittent leave. The ordinance does not mention any state and federal leave laws, except that it is not intended to conflict with federal or state law. Thus, if an employee requests time off from work as an accommodation under the ordinance, an employer may also designate the time off as leave under the FMLA, CFRA, and/or paid sick leave if the employee has not yet exhausted his or her available leave under those provisions. Employers should review their policies and procedures for providing both regular and intermittent leave.

A predictable working arrangement is defined as changes in terms and conditions of employment that give employees scheduling predictability to assist employees with caregiving responsibilities. Employees may request changes in the number of hours they work, the times they work, where they work and their work assignments.

Nothing in the FFWO creates a right to be paid when the employer does not have sufficient work for the employee.

Employers are required to inform employees of their rights under the FFWO by posting a notice in a conspicuous place at any workplace or job site where any employee works. The notice must be posted in English, Spanish, Chinese and any other language spoken by at least five percent of the employees at the workplace or job site.

For further discussion of caregiver responsibilities and flexible working arrangements generally, see Managing Employees in Special Situations: Federal; How to Manage Employees With Caregiving Responsibilities; How to Handle Requests for Flexible Work Arrangements.

For further information regarding the FFWO's accommodation procedure, prohibited actions under the ordinance and enforcement of the ordinance, see EEO - Discrimination: California.

Interactions With Other Laws

The FFWO does not mention other laws, so the employer must determine how flexible and predictable work arrangements will operate in conjunction with the FMLA, the CFRA, the California Pregnancy Discrimination Act, and PFL. Importantly, the ordinance contemplates changes in working conditions that are broader than those considered under the leave laws or the Americans with Disabilities Act (ADA). Also, unlike the FMLA and CFRA, the ordinance does not cap the duration of flexible or predictable work arrangements, so employees may exercise their rights under the ordinance indefinitely. Employers should require employees to exhaust FMLA and CFRA leave during these arrangements, if applicable.

San Francisco Paid Family Leave (Paid Parental Leave Ordinance)

California state law provides six weeks of wage replacement benefits to eligible employees who take time off from work to bond with a newborn baby, newly adopted child or newly placed foster child or to care for a seriously ill family member. An employee is eligible to receive 60 percent of his or her normal weekly wage to offset what would otherwise be an unpaid leave. San Francisco passed the Paid Parental Leave Ordinance (PPLO), plus a final administrative rule, requiring covered employers to supplement the state paid family leave (PFL) weekly benefit amount by providing the remainder of an employee's usual gross weekly wage when the employee takes time off to bond with a new child.

Practical Example

Ellie, an assistant professor at Acme University in San Francisco, earns $52,000 per year. When she takes leave after the birth of her daughter, her benefits under the state's PFL law are $600, or 60 percent of her weekly wage of $1,000. This means that Acme University's obligation under the San Francisco PPLO is capped at $400 per week, or 40 percent of her weekly wage.

When the state wage replacement rate changes, an employer's obligation to provide the remaining portion of a San Francisco employee's wages increases or decreases accordingly. For example, if the state wage replacement rate increases to 70 percent, the employer's obligation would decrease to 30 percent.

Covered Employers

The PPLO applies to covered employers with 20 or more employees, regardless of location. A covered employer includes any person, including corporate officers and executives, who directly or indirectly or through an agent or other person (including a temporary services or staffing agency), employs or exercises control over the wages, hours or working conditions of an employee. A covered employer does not include the City of San Francisco or any other governmental entity.

The following types of employees are included in determining whether an employer meets the PPLO coverage threshold:

  • Seasonal, permanent or temporary; full-time or part-time; contracted (whether employed directly by the employer or through a temporary staffing agency, leasing company, professional employer organization or other entity); or commissioned employees;
  • Employees presently on paid or unpaid leave (including leave under the California Family Rights Act); and
  • Employees who work within the San Francisco city boundaries and employees who work outside of San Francisco.

In addition, all employees must be counted regardless of whether they are considered covered employees under the PPLO. San Francisco PPLO Rule 2.1.

If the size of an employer's workforce fluctuates from week to week, the number of employees that the employer "regularly employs" is calculated by taking the average of the number of employees performing paid work for each week included in the PPLO lookback period (the three monthly pay periods, six bi-weekly or semi-monthly pay periods, or 12 weekly pay periods preceding the start of the first day of an employee's California PFL period or preceding the first day of any increment of intermittent PFL). The lookback period does not include any pay periods during which the employee was on unpaid or partially paid leave, including pregnancy disability leave. San Francisco PPLO Rule 2.2.

If an employer becomes a covered employer (i.e., reaches a given number of employees) after an employee has already commenced California PFL, the employer is only required to provide PPLO supplemental compensation for the period that occurs after the date that the employer became a covered employer. San Francisco PPLO Rule 3.

If an employee takes intermittent California PFL, the employer must determine whether it is a covered employer for each increment of intermittent leave. San Francisco PPLO Rule 8.6.

Covered Employees

To be eligible for San Francisco's PPL benefits, employees must:

  • Apply for and receive California PFL benefits for the purpose of bonding with a newborn baby, newly adopted child or newly placed foster child;
  • Be employed by the covered employer for at least 180 calendar days prior to the first day of leave for which California PFL benefits for bonding with a new child are payable; and
  • Work at least eight hours per week for the covered employer within the geographic boundaries of San Francisco, with at least 40 percent of total weekly hours worked within the geographic boundaries of San Francisco.

If an employee separates from employment before reaching 180 calendar days of employment and is rehired within one year of separation, his or her prior days of employment count toward the 180-day eligibility requirement. An employee who separates from employment after reaching 180 calendar days of employment and is rehired within one year of separation may not be required to complete a new 180-day eligibility period. San Francisco PPLO Rule 1.

If an employee's hours fluctuate from week to week, the determination of whether the employee meets the eight-hour or 40 percent threshold is based on the employee's average weekly hours worked for the employer during the three monthly pay periods, six biweekly or semimonthly pay periods, or 12 weekly pay periods immediately preceding the start of the California PFL period. Any pay periods in which the employee was on unpaid or partially paid leave are not counted toward the average. Instead, earlier corresponding pay periods are used to satisfy the designated number of pay periods, but pay periods occurring earlier than 26 weeks prior to the start of the leave period are not considered in the calculation.

The ordinance does not apply to employees covered by a collective bargaining agreement that expressly waives the ordinance's requirements or that was entered into before the ordinance took effect (May 21, 2016).

Multiple Employers

If an employee works for multiple covered employers, each employer is responsible only for its percentage of the employee's total gross weekly wages.

Practical Example

Ted earns $800 per week from Acme Inc. and $200 per week from ABC Corp. (both of which are covered employers) for a combined total of $1,000. Acme is responsible for 80 percent of PPL benefits, while ABC is responsible for 20 percent. If ABC were not a covered employer, it would pay nothing, while Acme would pay 80 percent.

Employee Responsibilities

An employer may require employees to use up to two weeks of unused, accrued vacation time during the leave period. If an employee does not agree to this, the employer need not provide PPL benefits. However, this does not affect an employee's eligibility for California PFL benefits.

If an employer requires an employee to use two weeks of vacation time prior to the initial receipt of PFL benefits, as allowed by the state law, it is still obligated to provide six weeks of PPLO benefits.

Additionally, an employee must agree in writing to reimburse the employer for the full amount of the employer's contribution if the employee voluntarily leaves employment within 90 days of the end of the leave period. The employer must request reimbursement in writing.

Finally, in order to receive PPL benefits, an employee must complete and submit the San Francisco Paid Parental Leave Form (PPL Form) to the employer and must also either:

  1. Provide the employer with a copy of his or her Notice of Computation of California Paid Family Leave Benefits from the California Employment Development Department (EDD); or
  2. At the time of applying for California PFL, provide the state with written authorization to disclose the weekly benefit amount to the employer so that the employer may request and obtain that information from the state.

The San Francisco Office of Labor Standards Enforcement (OLSE) strongly recommends that employees do both. An employer will not be required to provide PPL benefits until it has received the required information.

If an employee chooses to submit the Notice of Computation (option 1), then the employer is permitted to ask the employee to either notify it when he or she receives benefits or to provide his or her Electronic Benefit Payment Notification (Form DE 2500E or Notice of Payment) from the EDD, which verifies that the employee is in fact eligible for and receiving California PFL benefits. An employer that requires submission of the Notice of Payment must notify the employee of this fact within a reasonable time after learning he or she is expecting a new child.

If the employee chooses to authorize the state to disclose the benefit amount (option 2), then he or she must notify the employer when he or she receives benefits. The employer must then contact the EDD to obtain the benefit amount. The employer should make contact as soon as reasonably practicable. If the EDD does not respond within seven days, the employer may notify the employee of the delay and allow him or her to provide a Notice of Computation instead.

If a covered employee works for more than one covered employer, a covered employer has the right to request documentation from the employee verifying the wages earned from the other covered employers listed on the PPL Form, such as pay stubs.

San Francisco PPLO Rule 5.

Employees are permitted to use intermittent leave under the California PFL and must so designate on their documentation submitted to the California EDD. Employees who intend to use intermittent California PFL and plan to request supplemental compensation under the PPLO must notify their employers of the schedule of intermittent leave that they have provided to the EDD. If the schedule of intermittent leave changes, the employee must notify the employer of any such changes. San Francisco PPLO Rule 8.1.

Payment of Supplemental Compensation

If all PPLO requirements are met before or during the California PFL benefits period, an employer must make a good-faith effort to issue the first supplemental compensation payment in the next full pay period after requirements are met and then on subsequent, regular paydays. The total supplemental compensation amount owed to an employee must be paid within 30 days after the last day of the employee's California PFL period. Alternatively, if PPLO requirements are met after the California PFL period ends, the total supplemental compensation due must be paid within 30 days after requirements were met. San Francisco PPLO Rule 6.

The OLSE provides detailed instructions for calculating supplemental compensation.

Generally, the amount of supplemental compensation should be calculated once based on the employee's wages immediately preceding the first increment of the California PFL period. For purposes of intermittent use of California PFL benefits, an employer does not need to recalculate the supplemental compensation amount between California PFL periods if the employee's wages increase or remain the same. If, however, the employee's wages decrease between one increment of California PFL benefits and the next, the employer can choose to recalculate the supplemental compensation so that the employee does not receive more than 100 percent of normal gross weekly wages during any increment of California PFL.

Termination of Employment

If an employer terminates an employee during the leave period, the obligation to pay parental leave benefits will continue for the remainder of the period the employee is receiving California PFL benefits.

An employer that terminates an employee prior to the beginning of the leave period but within 90 days of the employee requesting or applying for California PFL benefits must have clear and convincing evidence that it did not terminate the employee in order to avoid its obligation to pay San Francisco PPL benefits.

Employer Notice and Recordkeeping Requirements

A covered employer must post a notice of an employee's rights under the PPLO. In addition to posting this notice, an employer must provide employees with a copy of the PPL Form within a reasonable time after the employee tells the employer of the fact that he or she is expecting a newborn, adopted or foster child, or sooner if the employee inquires about paid parental leave. If an employer publishes an employee handbook that describes other kinds of personal or parental leave available to its employees, the employer must include a description of PPLO rights in the next edition of its handbook published after December 23, 2016. An employer is also encouraged to give a copy of the PPL Form to each current employee and new hire.

Any employer whose workforce contains five percent or more of persons who speak a language other than English must provide the PPL Form in that language. The OLSE will make the PPL Form available in Spanish, Chinese and Tagalog. If the language spoken by five percent or more of the workforce is a language other than those listed, the employer bears the responsibility for translating the form and providing it to employees.

San Francisco PPLO Rule 4.

A covered employer must also keep records regarding payments to employees made under the PPLO for three years.

Interaction With Other Policies

An employer need not provide PPL benefits if it has an existing policy that provides employees with at least six weeks of fully paid parental leave within any 12-month period for the purpose of bonding with a new child. This paid leave may or may not include California PFL benefits. Unless the employee chooses otherwise, the leave must be provided in consecutive weeks.

Nothing in the ordinance prevents an employer from adopting or retaining leave policies that are more generous than policies that comply with the ordinance.

Prohibited Actions

An employer is prohibited from:

  • Interfering with, restraining or denying the exercise of or attempt to exercise any right protected by the ordinance; and
  • Terminating, threatening to terminate, demoting, suspending or in any manner discriminating or taking adverse action against an employee in retaliation for exercising protected rights.

Protected rights include, but are not limited to, the following:

  • The right to PPL benefits;
  • The right to file a complaint or inform any person about an employer's alleged violation;
  • The right to cooperate with an OLSE investigation of an alleged violation; and
  • The right to inform any person of his or her possible rights under the ordinance.

Taking an adverse action within 90 days of an employee exercising a protected right may be seen as illegal retaliation, unless the employer has clear and convincing evidence that its action is not retaliatory.

Likewise, reducing an employee's wages during the leave period or within 90 days of the employee notifying the employer of the intent to apply for and/or use California PFL benefits may be seen as an attempt to avoid San Francisco PPL obligations, unless the employer has clear and convincing evidence the reduction was made for another reason.

Enforcement

If the OLSE determines that a violation has occurred, it may order any appropriate relief, such as:

  • Payment of unlawfully withheld PPL benefits; and
  • Payment of an administrative penalty.

The administrative penalty for unlawfully withholding benefits is the greater of three times the dollar amount of withheld benefits or $250. The administrative penalty for other violations, such as failure to post the notice, is $50 to each employee or person whose rights were violated for each day the violation occurred or continued.

The City may bring a civil action in court. An individual may bring a civil action after providing written notice to the OLSE or the City Attorney of the intent to bring an action. In a civil action, an employer may be held liable for legal or equitable relief, such as:

  • Reinstatement;
  • Back pay;
  • Payment of unlawfully withheld PPL benefits;
  • Liquidated damages;
  • Injunctive relief; and
  • Reasonable attorney fees and costs.

San Francisco Paid Sick Leave

The San Francisco Paid Sick Leave Ordinance (PSLO or the Ordinance) applies to all employers, regardless of size, that have employees (including part-time and temporary employees) within the geographic boundaries of the City or County of San Francisco. It does not apply to employers operating on City-owned property outside of San Francisco, such as the San Francisco International Airport (SFO). San Francisco, California Administrative Code SEC 12W.2(d).

San Francisco has amended the rules implementing the PSLO, effective June 7, 2018.

Employee Eligibility for Leave

An employee is eligible for paid sick leave if he or she performs work for a covered employer within the geographic boundaries of San Francisco, regardless of where their employer is physically located.

An employee who works fewer than 56 hours in San Francisco in a calendar year is not covered by the PSLO.

Qualifying Reasons for Leave

An eligible employee may use sick leave for the following reasons:

  • The employee's own illness or injury, or need for medical care (including preventive care), treatment or diagnosis;
  • To care for or assist a family member with an illness or injury, or who needs medical care (including preventive care), treatment or diagnosis;
  • Purposes related to domestic violence, sexual assault or stalking suffered by the employee; and
  • Bone marrow or organ donation by the employee or a family member.

For example, an employee may take paid sick leave for his or her child's wellness visits, routine checkups or immunizations. San Francisco, California Administrative Code SEC 12W.2(e); San Francisco, California Administrative Code SEC 12W.4.

A family member includes the employee's:

  • Child;
  • Parent;
  • Legal guardian or ward;
  • Sibling;
  • Grandparent;
  • Grandchild; and
  • Spouse, including a same-sex spouse and any registered domestic partner under any state or local law.

The definition of child, parent, sibling, grandparent and grandchild includes biological relationships and those resulting from adoption, step-relationships and foster care relationships. A child includes a child of a domestic partner and a child of a person standing in loco parentis. A parent includes a person who stood in loco parentis when the employee was a minor child and a parent of the employee's spouse or registered domestic partner.

If an employee does not have a spouse or registered domestic partner, the employee may designate one person as to whom the employee may use his or her paid sick leave to aid or take care of. An employer must offer an employee the opportunity to designate a person no later than the date on which the employee has worked 30 hours after the date paid sick leave begins to accrue (i.e., 90 calendar days from the employee's first day of work). The employee then has 10 workdays to make the designation.

If an employee fails to make a designation or wants to change a designation, the employer is required to give the employee the opportunity to make or change the designation on an annual basis. In the interim, however, an employer may deny the employee's request to use paid sick leave for the nonfamily member.

San Francisco, California Administrative Code SEC 12W.4(a).

Accrual and Use of Leave

Employees accrue one hour of paid sick leave for every 30 hours worked in San Francisco. Depending on the employer's size, the amount of accrual is capped at 40 hours (if an employer has fewer than 10 employees) or 72 hours (if an employer has 10 or more employees) per year. Accrual begins when employment begins. Frontloading is allowed.

An employee may not begin using accrued leave until the 90th day of employment. After that, paid sick leave may be used as it is accrued.

Impact on FMLA/CFRA

The Ordinance is not intended to limit, preempt or affect the applicability of any other state or federal law. San Francisco, California Administrative Code SEC 12W.10; San Francisco, California Administrative Code SEC 12W.13. Thus, San Francisco employers may designate leave taken under the Ordinance as FMLA and/or CFRA leave where applicable.

For more information on eligibility requirements, leave accrual and use, compensation, employee notice and documentation requirements, employer notice and recordkeeping requirements, retaliation and more, please see Other Leaves: California.

Santa Monica Paid Sick Leave

Under the City of Santa Monica's Minimum Wage Ordinance (MWO), employers with 26 or more employees must provide up to 72 hours of paid sick and safe leave per year, while smaller employers with 25 or fewer employees must provide up to 40 hours of paid sick and safe leave per year.

The number of employees is determined by the average number of employees employed per quarter during the previous calendar year. Only employees in Santa Monica need to be counted, according to the FAQs. Franchises are considered separate entities for the purposes of calculating business size. However, multiple employers that form a single integrated enterprise under the federal Fair Labor Standards Act are considered a single employer under the MWO. Santa Monica, California Code of Ordinances Sec. 4.62.015; Santa Monica, CA Rules § 2.

Santa Monica is located near the Los Angeles area. Due to its close proximity to Los Angeles, which also has a paid sick leave ordinance, employers may have overlapping paid sick leave compliance obligations at the local and state level.  When any laws differ, the employer must follow whichever provision or benefit is most favorable to the employee.

The City of Santa Monica published several resources to help an employer implement the paid sick leave law, such as a checklist, a fact sheet and FAQs.

Covered Employers

The Santa Monica paid sick leave (SMPSL) provisions apply to all employers, regardless of size. Santa Monica, California Code of Ordinances Sec. 4.62.010(d).

Employee Eligibility

To be eligible for SMPSL, an employee (including a full-time, part-time, seasonal and temporary employee) must:

  • Perform at least two hours of work in a particular week for a covered employer within the geographic boundaries of Santa Monica; and
  • Qualify as an employee entitled to payment of the state minimum wage from any employer under the state Labor Code and wage orders published by the California Industrial Welfare Commission.

Santa Monica, California Code of Ordinances Sec. 4.62.010(c); Santa Monica, CA Rules § 1.

Qualifying Reasons for Sick Leave

An eligible employee may use paid sick and safe time under the MWO for the same reasons as under the state Health Workplaces, Healthy Families Act (HWHFA):

  • Diagnosis, care or treatment of an existing health condition of, or preventive care for, an employee or an employee's family member; and
  • For an employee who is a victim of domestic violence, sexual assault or stalking to seek medical, legal and social services and other purposes.

The definition of a covered family member also mirrors the HWHFA (i.e., child, regardless of age or dependency status; spouse; registered domestic partner; parent; spouse or domestic partner's parent; sibling; grandparent; grandchild).

Santa Monica, California Code of Ordinances Sec. 4.62.025(c).

Accrual and Use of Sick Leave

An employee begins to accrue paid sick leave when employment begins, at the rate of one hour of paid sick leave for every 30 hours worked in Santa Monica. For employers with 26 or more employees, an employee may accrue up to a maximum of 72 hours of leave. For employers with 25 or fewer employees, an employee may accrue up to a maximum of 40 hours of leave. Frontloading is allowed.

Employees may begin using their accrued leave after the first 90 calendar days of employment or consistent with the employer's policies, whichever is sooner. The ordinance does not cap the maximum amount of paid sick leave an employee may use. According to the FAQs, whenever an employee uses their leave so that the amount of accrued leave drops below the accrual cap, the employee begins to accrue leave again at the rate of one hour for every 30 hours worked and may use this additional leave in the same year.

Unused accrued paid sick leave must carry over from year to year (whether calendar, fiscal or year of employment), up to the applicable accrual cap (i.e., 40 or 72 hours), unless the employer's established policy is more generous.

Santa Monica, California Code of Ordinances Sec. 4.62.025.

Interaction With Other Laws and Policies

The MWO provides minimum requirements pertaining to paid sick leave. It does not preempt, limit or otherwise affect the applicability of any other law, regulation, requirement, policy or standard that provides for greater accrual or use of sick leave, whether paid or unpaid, or that extends other protections to employees. Santa Monica, California Code of Ordinances Sec. 4.62.025(g).

Other policies. Paid leave in the form of vacation time, or paid leave that employees may use for either vacation or sick leave, does not satisfy the MWO's paid sick leave requirements. Santa Monica, CA Rules § 6.

Collective bargaining agreements. The MWO does not apply to employees covered by a valid collective bargaining agreement (CBA) that expressly waives the ordinance's requirements in clear and unambiguous terms. However, any other waiver by an employer is considered against public policy and is void and unenforceable. Santa Monica, California Code of Ordinances Sec. 4.62.045; Santa Monica, California Code of Ordinances Sec. 4.62.050.

For more details, please see Other Leaves: California.

Future Developments

Effective July 1, 2020, an eligible employee may receive up to eight weeks of paid family leave insurance benefits, up from the current limit of six weeks. +2019 Bill Text CA S.B. 83.

Effective January 1, 2021, an employee may claim paid family leave insurance benefits if he or she is unable to work due to participation in a qualifying exigency related to the covered active duty or call to covered active duty of the employee's spouse, domestic partner, child or parent who is in the US Armed Forces. +2017 Bill Text CA S.B. 1123.

Covered active duty means duty during the deployment of:

  • A member of the regular US Armed Forces to a foreign country; and
  • A member of the reserve components of the US Armed Forces to a foreign country under a federal call or order to active duty.

A qualifying exigency means any of the following:

  • Activities undertaken within seven calendar days from the date the servicemember has been notified of an impending call or order to covered active duty to address any issue that arises from the call or order;
  • Attendance in either or both of the following if they are related to the servicemember's covered active duty or call to covered active duty:
    • An official ceremony, program or event sponsored by the military; and
    • A family support or assistance program and informational briefing sponsored or promoted by the military, military service organizations or the American Red Cross;
  • Any of the following activities related to the servicemember's covered child (i.e., biological, adopted or foster child; stepchild; legal ward; or child for whom the servicemember stands in loco parentis, who is aged under 18 or, if aged 18 or above, is incapable of self-care because of a disability at the time the paid leave is to begin):
    • Arranging for alternative childcare for the covered child when the servicemember's covered active duty or call to covered active duty requires a change in the existing childcare arrangement;
    • Providing childcare for the covered child on an urgent, immediate need basis because of the servicemember's covered active duty;
    • Enrolling or transferring the covered child to a new school or day care facility when required by the servicemember's covered active duty or call to covered active duty; and
    • Attending meetings with staff at the covered child's school or day care facility (e.g., meetings with school officials regarding disciplinary measures, parent-teacher conferences or meetings with school counselors) when these meetings are necessary due to circumstances arising from the servicemember's covered active duty or call to covered active duty;
  • To make financial and legal arrangements for either or both of the following purposes:
    • Making or updating financial or legal arrangements to address the absence of the servicemember while on covered active duty or call to covered active duty (e.g., preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or preparing or updating a will or living trust); and
    • Acting as the representative of the servicemember before a federal, state or local agency for purposes of obtaining, arranging or appealing military service benefits while the servicemember is on covered active duty or call to covered active duty, and for a period of 90 days following the termination of the covered active duty.
  • Attending counseling provided by someone other than a health care provider, for the employee, the servicemember, or the servicemember's covered child, if the need for counseling arises from the servicemember's covered active duty or call to covered active duty;
  • Accompanying a servicemember while he or she is on short-term, temporary rest and recuperation leave during the period of deployment in a foreign country, for up to 15 calendar days beginning on the date the leave begins;
  • Attending arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the servicemember's covered active duty;
  • Addressing issues that arise from the death of the servicemember while on covered active duty status (e.g., meeting and recovering the servicemember's body, making funeral arrangements and attending funeral services);
  • Any of the following activities related to the servicemember's parent while the parent is incapable of self-care (i.e., requires active assistance or supervision over daily self-care in three or more of the activities of daily living or instrumental activities of daily living):
    • Arranging for alternative care for the parent when the servicemember's covered active duty or call to covered active duty requires a change in the parent's existing care arrangement;
    • Providing care for the parent on an urgent, immediate need basis because of the servicemember's covered active duty or call to covered active duty;
    • Admitting or transferring the parent to a care facility when admission or transfer is required by the servicemember's covered active duty or call to covered active duty; and
    • Attending meetings with staff at the parent's care facility (e.g., meetings with hospice or social service providers when these meetings are necessary due to circumstances arising from the servicemember's covered active duty or call to covered active duty); and
  • Any other activities to address other events that arise out of the servicemember's covered active duty or call to covered active duty, as long as the employer and employee agree:
    • That the leave qualifies as an exigency; and
    • On both the timing and duration of the leave.

Activities of daily living include adaptive activities, such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories and using a post office.

Additional Resources

Employee Leaves > FMLA

Employee Leaves > Other Leaves: California

Employee Management > Disabilities (ADA)

California Department of Fair Employment and Housing

State of California, Employment Development Department