Leave of Absence Laws

Leave of absence laws can be very confusing, with good reason.  There are both federal and state laws that guarantee a leave of absence to employees and require the employer to reinstate the employee to a job of similar status and pay upon return to work.  Some of these laws overlap, and sometimes they can be very different.  Sometimes they run concurrently, and sometimes they must run consecutively.  Some programs referred to as "leave" do not create a right to a leave of absence but rather are insurance programs to provide wage replacement while an employee is out on a leave.  The following is a general explanation of various leave laws affecting California workers and employers.

Family Medical Leave of Absence Act (FMLA)

This is a federal law that allows an employee to take a leave of absence of up to twelve (12) weeks for his or her own serious health condition, the serious health condition of a spouse, parent, or child, or so-called "baby bonding" (childbirth, adoption, or placement of a foster child with the employee). 

Whether leave is available under FMLA is a separate question than if the leave is paid.  Whether pay is available depends upon a company's particular policy, State Disability Insurance (SDI) , and California's Paid Family Leave (PFL).  Further, an employer can require an employee to use available paid time off such as vacation, or, in the event of the employee's own serious health condition, sick leave, concurrent with FMLA time.

FMLA is only applicable to employers with fifty (50) or more employees within a 75-mile radius.  FMLA is available only to employees who have one (1) year of service with the employer AND have worked 1250 hours within the previous twelve (12) months.  A key employee (one who is in the top 10% of wage earners) may be denied FMLA leave if the leave would create a grievous economic injury to the employer.  Such employees must be notified that they are key employees.  In certain circumstances, spouses may be limited to a combined total of twelve (12) weeks of leave.

California Family Rights Act (CFRA)

CFRA is a state law that is very similar to FMLA, but it is not completely identical.  The differences can be very subtle and an employer or employee with questions about a specific situation should consult an employment law attorney for advice.  CFRA and FMLA run concurrently, except in the case of pregnancy or some other very limited circumstances where one type of leave is available and the other is not.  In the case of pregnancy, CFRA does not begin to run until either the employee is no longer disabled or until the four (4) months of leave available under PDL (see below) runs out, whichever is first.

Pregnancy Discrimination Act (PDA)

Under the Pregnancy Discrimination Act, an employee must be given up to six (6) weeks of leave for a normal pregnancy, childbirth, and related medical conditions.  Unlike with FMLA and CFRA, there is no one (1) year waiting period, and it applies to employers with as few as 5 employees.

Pregnancy Disability Leave (PDL)

This is a California law that guarantees an employee up to four (4) months for pregnancy-related disability.  There is no one (1) year waiting period.  Further, it applies each time the employee gets pregnant.  Recently, the California Supreme Court ruled that an employer may be required to provide additional leave beyond the four (4) months of PDL as a reasonable accommodation of a disability under the Fair Employment and Housing Act.  Further, an employee has a right to reinstatement to the same position, with certain exceptions.

Here are links to Notice A (English) and Notice B (English) for 2013, which must be either posted or published electornically.  For FEHA-covered employers whose work force's primary language is other than English, employers must have the notice translated into the language spoken by those employees.

Paid Family Leave

This is a California law that does not truly confer a right to a leave of absence, but rather is an insurance program that provides some wage replacement in the event of the disability of a family member (because the employee cannot collect State Disability Insurance except for her or his own disability).

© Alexandra M. Steinberg 2016 All rights reserved.