It would be hard to overstate the intricacies of the laws and underlying regulations surrounding California employee leave of absence entitlements. In a state known to employers for its oftentimes byzantine levels of complexity, deciphering and staying on the “good side” of California leave laws presents employers with significant challenges. HR managers must regularly deal with a host of employment-related issues, from having to understand the parameters of leave entitlement and whether an absence is payable, to dealing with emergencies and unforeseen circumstances like employees quitting without notice.
There are many resources available that provide information on managing the web of intertwined laws, including your HR Consultant, California Chamber of Commerce and from the Society of Human Resource Management (SHRM).
“Leave” to an employee in California means time off, but it more accurately refers to entitled time away from work under state law. Common forms of time off from work are vacation, personal and sick time; however, an employee may be entitled to additional time off under California’s leave laws, depending on their individual circumstances. It can get even more complicated from there!
The following explains some of the most important areas of California-specific employee leave that HR professionals frequently encounter in the workplace.
1.) The California Family Rights Act (CFRA)
The CFRA, distinct from the federal law known as the Family and Medical Leave Act (FMLA), applies to all employers with five or more employees. In contrast, the FMLA applies to all employers with 50 or more employees. CFRA and FMLA are unpaid job-protected leaves for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. There are thresholds that employees must meet before they can claim leave benefits under the CFRA, including at least one year’s service. Additional requirements exist around the number of hours worked in the 12-month period preceding the leave, currently pegged at 1,250 hours, as well as an employee’s location if the individual resides outside of the state. There are real differences between the two laws, thus it is to the employee’s benefit – and an obligation for the HR department – to understand whether an absence falls under CFRA, FMLA or both. In many cases, the reason for time off will qualify the employee for both CFRA and FMLA. When that situation occurs, the two leaves will run concurrently, providing the employee with a maximum amount of 12 weeks.
However, these two leaves are not identical, and there may be situations when one leave law will apply while the other does not. For example, the CFRA covers some absences relating to domestic partners, siblings and parents-in-law, whereas this is not covered by the FMLA. Perhaps the single most dramatic difference between CFRA and FMLA has to do with pregnancy and childcare, particularly as CFRA does not cover absences relating to pregnancy disability and the FMLA does. Both laws provide time off for baby bonding, meaning that in cases of pregnancy and childbirth, an employee is entitled to two separate banks of 12 weeks off — one for pregnancy-related disability, under the FMLA, and another set of 12 weeks off for baby bonding, under the CFRA. It’s important to keep in mind that California potentially offers more time off under the state’s Pregnancy Disability Leave (PDL) law.
2.) Wage Replacement Programs
In addition to time off entitlements, an employee may be eligible for wage replacement benefits under one of California’s two benefit programs: Paid Family Leave (PFL) and State Disability Insurance (SDI).
California’s PFL benefit provides wage replacement pay to employees who need to take time off from work for qualifying reasons to care for an eligible family member, including time off for baby bonding.
California’s SDI program provides wage replacement pay for employees who are unable to work due to their disability status.
PFL and SDI are administered by the State’s Employment Development Department (EDD), and they both pay between 60% to 70% of wages earned in the 5 to 18 months prior to the claim start date.
California employers are required to provide SDI and/or PFL notifications to an employee when they are eligible for these benefits, so it’s critical that employers understand these two programs in order to remain compliant with statutory notifications to the employee.
3.) Paid Sick Leave
One would be pressed to find a more complicated instance of conflicting regulations than paid sick leave in California. The reason for this is that even after the state law went into effect in 2015, many city sick leave laws were left in place. There continues to be a great deal of misalignment between local jurisdiction and state laws – even within major urban centers like San Francisco, Los Angeles and San Diego. When this discrepancy occurs, employers should adhere to the law that is most favorable to the employee.
4.) And So Much More! The subsequent list contains some of the other leaves of absence found in California – many of which allow for some form of paid time off and all of which call for careful administration by employers.
- Family and Medical Leave
- New Parent Leave
- Pregnancy Disability Leave
- Sick Leave
- Bereavement Leave
- Jury Duty, Subpoena, or Witness Duty Leave
- Domestic Violence Victim, Sexual Assault or Stalking Victim Leave
- Crime Victim Leave
- Leave for School Activities or Disciplinary Proceedings Leave
- Literacy Education Leave
- Drug/Alcohol Rehab Leave
- Kin Care Leave
- Organ Donor/Bone Marrow Donor Leave
- Military Injury Leave
- Military Spouse Leave
- Voting Leave
- Emergency Responder Leave
- Civil Air Patrol Leve
- Adult Literacy Leave
- Court Proceedings Leave
- Election Officer Leave
As you can see, employee absences in California can easily fall under protected time off laws, and employers are expected to comply. Violations can result in a high cost for the employer, as they can include any of the following:
- Penalty pay for damages relating to injuries or losses that the employee suffered, including loss of back pay and front pay for lost future wages
- Pay for pain, suffering, humiliation and embarrassment
- Punitive damages
- Attorneys’ fees
- Expert witness fees to the prevailing party
There is so much at stake with leave law compliance in California. It’s imperative that employers are equipped to respond appropriately when an employee requests time off from work. Is your head spinning? BPM’s HR Consulting team can help you. We can assess and advise on your leave administration practices, ensure that your organization is in regulatory compliance, develop policies and practices, train managers – and more. If you would like to speak with one of our consultants, please reach out to Jill Pappenheimer.