Employers with less than 500 employees are subject to the Families First Coronavirus Response Act provisions, which went into effect on April 1. Enforcement began on April 18. Our Covid-19 page details the leave rights provided by this new law.
California Family Rights Act
Under the California Family Rights Act (CFRA), an eligible employee of an employer with at least 50 employees within 75 miles of the employee’s worksite is entitled to unpaid leave of up to 12 workweeks in a 12-month period for reason of (1) birth, adoption, or foster-care placement of a child, or (2) serious health condition of the employee or the employee’s child, spouse, registered domestic partner, or parent. Employees are eligible if they have more than 12 months of service with the employer, and at least 1,250 hours of service with the employer during the previous 12-month period. California employers must not interfere with an employee exercising or attempting to exercise CFRA rights.
CFRA entitles an employee to intermittent leave for bonding without the employer’s permission, and the basic minimum duration of that leave generally is two weeks. Further, California employers cannot require “medical facts” (e.g., symptoms or a diagnosis) and certain other information as part of a medical certification, and also cannot obtain a second or third medical opinion as to the serious health condition of a family member (as opposed to the employee’s own medical condition, where second and third opinions are permitted). CFRA also imposes additional employer requirements with respect to pregnant employees. An employee who has taken a pregnancy disability leave of up to four months under the California PDLL may take an additional 12 weeks of CFRA leave to bond with her child (or for any other CFRA-qualifying reason), during which the employer must continue health insurance coverage.
California’s New Parent Leave Act
Employers (with at least 20 employees within 75 miles of the employee’s worksite) must provide parental leave to eligible employees (those who have worked more than 12 months and at least 1,250 hours). These employees are entitled to unpaid leave of up to 12 workweeks in a 12 month period to bond with a new child within a year of the child’s birth, adoption, or foster care placement. An employer employing both parents need not provide more than 12 weeks in total to the employees, and may choose to grant the leave for both parents simultaneously. Employers must maintain coverage for group health plans while the employee is on leave, but can recover costs for employees who decide not to return after their leave exhausts, if the reason not to return is something other than a serious health condition (or other circumstances beyond the employee’s control).
Pregnancy Disability Leave
California law requires a pregnancy disability leave, not a maternity leave. Under the Pregnancy Disability Leave Law (PDLL), California employers with five or more employees must grant up to “four months” (17.33 weeks) of unpaid leave per pregnancy to employees disabled by pregnancy or pregnancy-related conditions regardless of whether the employer allows disability leaves. Regulations state that the reinstatement must be to the exact same position (as opposed to an equivalent or comparable position), and that the employee is entitled to a written guarantee of reinstatement upon request. A pregnancy disabled employee who exhausts her four months of PDLL leave also may be entitled to additional leave under the Fair Employment & Housing Act as a reasonable accommodation for a disability. The PDLL requires further accommodations, such as temporary transfers, for conditions related to pregnancy, childbirth, or related medical conditions. California employers must maintain and pay for group health benefits during the employee’s pregnancy disability leave as if she were actively working during the leave, up to a maximum of four months within a 12-month period (commencing on the date the pregnancy disability leave begins). Employers must maintain health coverage for up to seven months if employees take their full PDLL leave and then their full California Family Rights Act leave for baby bonding.
Since 2002 California has entitled employees to take unpaid breaks to express milk in a private location (other than a toilet stall), in close proximity to the work area, unless this break time would “seriously disrupt the operations of the employer.” Effective in 2019, California amended its statute to require that the lactation location be other than a “bathroom.” California extends lactation-accommodation benefits to all employees, not just nonexempt employees. And as of 2020, California requires employers to provide a lactation room for employees that meets the following requirements: not a bathroom, in close proximity to the employee’s work area, shielded from view, free from intrusion while the employee is lactating, safe, clean, and free of hazardous materials, containing a surface to place a breast pump and personal items, containing a place to sit and having access to electricity or alternative devices (e.g., extension cords, charging stations) that may be needed to operate an electric or battery-powered breast pump. While a sink and refrigerator (or other cooling device suitable for storing milk) do not necessarily have to be in the lactation room, they must be in “close proximity” to the employee’s workspace. If a multipurpose room is used for lactation and other uses, then lactation must take precedence over the other uses. The new law makes denial of lactation break time or space an unlawful denial of a rest break, and subjects the employer to a $100 penalty per violation. The bill contains an anti-retaliation provision and will also require an employer to develop and implement a policy regarding any lactation accommodations. The policy must describe the employee’s right to file a complaint with the Labor Commissioner for an alleged violation, must appear in the employer’s handbook or policies, and must be distributed to new hires and to employees who ask about or request parental leave rights.
The Fair Employment & Housing Act also includes breastfeeding and related medical conditions within its very expansive definition of “sex” and thus forbids California employers to discriminate against those who breastfeed. While the California Labor Code specifies that breaks must be provided when the employee needs to express milk “for the employee’s infant child” an employee expressing milk for another purpose (e.g., donation) should be accommodated under the Fair Employment & Housing Act.
Paid Family Leave
Employees of private California employers who take time off work to care for a seriously ill child, spouse, parent, or domestic partner or to bond with a new child are entitled to up to six weeks of Family Temporary Disability Insurance (FTDI) benefits (i.e., Paid Family Leave (PFL) benefits) during a 12-month period. Legislation enacted during 2019 will increase the benefit to eight weeks, as of July 2020. An employee can claim benefits at any time after being employed. The program is administered in conjunction with the state disability insurance program, with insurance payments funded by an employee payroll tax. The level of benefits provided to individuals in the PFL and State Disability Insurance (SDI) programs for periods of disability and family leave is either 60 or 70 percent, depending on the applicant’s income, up to a cap. An employer may require an employee to take up to two weeks of earned but unused vacation leave prior to the employee’s initial receipt of FTDI benefits. The PFL law does NOT create leave rights. Thus, an employee eligible for PFL benefits is not entitled to reinstatement unless the leave is otherwise protected by law (e.g., CFRA), and employers need not provide employee benefits during the paid leave unless other statutes provide for continuation of benefits.
Rehabilitation and Adult Literacy Leave / Accommodation
Employers of 25 or more employees must provide a “reasonable accommodation” (e.g., an unpaid leave) for employees who wish to participate in alcohol or drug rehabilitation programs or adult literacy programs and must take reasonable steps to safeguard the privacy of the employee who has enrolled in a rehabilitation program.
An employer may require that employees on jury duty report to work when not called to serve on a jury. California requires exempt employees receive a salary of a fixed amount per week regardless of the amount worked that week so that a partial-week jury leave may amount, as a practical matter, to fully paid leave for exempt employees.
Victim-Related Court Appearance
California employers must not discharge, discriminate, or retaliate against an employee who takes time off, after giving reasonable advance notice (where feasible), to appear at any proceeding involving the right of a victim of any of certain crimes. The law specifies that the information needed to certify the absence can include a police report, court order, or medical documentation. A “victim” protected under this law includes the employee or the employee’s spouse, parent, child, sibling, or guardian.
Victims of domestic violence, sexual assault, or stalking may need to miss work for victim-related judicial proceedings or special safety and medical needs.
California employers must engage in an interactive process and provide reasonable accommodations for employees victimized by domestic violence, sexual assault, or stalking who have disclosed that status and who have requested a safety accommodation while at work. Reasonable accommodations may include such “safety measures” as modified schedules, changed telephone numbers, and installation of locks. The employer, in considering a reasonable accommodation, may require certification of the employee’s continued victim status.
California employers with 25 or more employees must permit employees who are victims of domestic violence, sexual assault, or stalking to take time off work to obtain victim-related services, such as medical attention, psychological counseling, or help in safety planning.
California employers must post, at least ten days before each statewide election, a notice that employees who lack time to vote during nonworking hours may take paid leave of up to two hours to vote. This time off to vote should be at the start or end of the regular work shift, whichever allows the most time for voting.
School Parent Leave
Employers with 25 or more employees at the same location must grant unpaid leave of up to 40 hours each year to an employee who is a parent to participate in various activities of the parent’s child in grades kindergarten through 12, or at a licensed child care provider. Among the activities covered are finding and enrolling in school or licensed child care activities, and addressing a school or child-care-provider emergency. “Child care provider or school emergency” includes a request that the child be picked up from school or child care, an attendance policy that prohibits the child from attending the school or licensed child care provider, behavioral or discipline problems, closure or unexpected unavailability of the school or child care provider (excluding planned holidays), and a natural disaster. An eight-hour-per-month limit applies to leave for non-emergency activities. Employers must not discriminate against an employee for taking time off for these activities. Employers also must not discriminate against an employee who, at a teacher’s request, appears in school as the parent or guardian of a suspended pupil. The law defines “parent” expansively to include a parent, guardian, stepparent, foster parent, or grandparent of—or a person who stands in loco parentis to—a child.
Kin Care Leave
Under the Healthy Workplaces, Healthy Families Act, all California employers must provide paid sick leave to all employees for their own or a family member’s illness or injury and other specified reasons. Employers must permit employees to use in a calendar year the amount of sick leave that accrues during six months, for certain purposes, including the diagnosis, care, medical treatment, or preventive care of any “family member”—a spouse, registered domestic partner, grandparent, grandchild, sibling, parent, or child. Both “parent” and “child” are defined very broadly to cover all varieties—biological, adopted, foster, step, ward, or in loco parentis. The rule applies to grants of sick leave in excess of the statutory minimum of 24 hours (or 3 days) annually. California employers must grant kin care leave to—and must not discriminate against—an employee who attempts to use kin care leave, and must not count that leave as an absence that may lead to discipline of the employee. Aggrieved employees are entitled to reinstatement and actual damages, or one day’s pay, whichever is greater. Employees who prevail in a court action are entitled to attorney fees. California employers must not deny an employee the right to use sick leave for kin care purposes and must not take discriminatory action against an employee for using—or attempting to exercise the right to use—sick leave for those purposes.
California employers must not discharge a returning employee who was on active military duty with the National Guard, except for cause, within one year after being restored to the position. Violation of the California statute is a misdemeanor.
Military Spousal Leave
California employers with 25 or more employees must grant up to ten days of unpaid leave to employees married to members of the active military service who themselves are on leave from a combat zone. Employees who work an average of at least 20 hours per week are eligible for military spousal leave if they are spouses of a “qualified member” of the military. A “qualified member” is a member of the US Armed Forces deployed to a combat zone, or a member of the National Guard or Reserves who has been deployed anywhere during a military conflict. Employees requesting leave must notify the employer of their intention to take time off within two business days of receiving official notice that the employee’s spouse will be on leave from military deployment. There is no provision allowing an employer to deny or delay the leave.
Paid Sick Leave
In 2014 California became the second state (after Connecticut) to impose a state-wide Paid Sick Leave law. The Healthy Workplaces Healthy Families Act (the California Paid Sick Leave Law) created a poster requirement, an amended Wage Theft Prevention Act Notice requirement, and a PSL entitlement provision (including specific PSL accrual provisions). The California PSL law covers virtually all employees (including part-time, temporary, and seasonal employees) who work in California for 30 or more days within a year. Covered employees accrue one hour of PSL for every 30 hours worked. An employer may select a different accrual method so long as the accrual is on a regular basis that gives employees no less than 24 hours of PSL or paid time off by the 120th calendar day of employment, or in each 12-month period. The accrual rate for exempt employees is based on a presumed 40-hour workweek, except that an exempt employee whose normal workweek is less than 40 hours accrues PSL based on that employee’s normal workweek. Employees must be permitted to carry over all their accrued, unused PSL to the following year, but employers may cap the accrual of PSL at 48 hours or six days. Instead of using the accrual method, employers can choose to give covered employees at least three days or 24 hours of PSL at the beginning of each year; under this option, no one-hour-per-30-hour accrual or carry-over is required.
Los Angeles defines “employee” to include any individual who performs two or more hours per week within the geographic boundaries of the City of Los Angeles, regardless of whether the individual is a city resident and regardless of whether the individual is legally authorized to work. The Los Angeles ordinance excludes government employees and employees who are exempt from state minimum wage laws. “Employer” is defined as including “a corporate officer or executive, who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee.” The Los Angeles ordinance might hold corporate officers and executives individually accountable. Los Angeles employees can use up to 48 hours of PSL in “each year of employment, calendar year or 12-month period.” Unused PSL shall carry over to the following year of employment, but may be capped at 72 hours. Employers may set a higher cap or no cap. Employers can choose either (1) “frontloading” (providing the entire 48 hours to an employee at the beginning of each year) or (2) having PSL accrue at the rate of one hour for every 30 hours worked. While state law provides that if an employer front-loads, then unused PSL does not carry over, with the unused balance simply being replaced by the new grant, Los Angeles is different. Under the Los Angeles ordinance, up to 72 hours must carry over year to year. So, while a Los Angeles employee can use only 48 hours of sick pay in a year, the employee can carry over 72 hours of PSL (or more, if the employer allows it). The universe of family members is broader under the Los Angeles ordinance. Family includes not only children (biological, adopted, step, loco parentis), siblings, spouses, registered domestic partners, parents (including parents of the spouse or domestic partner), grandparents, or grandchildren, but also “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”
Paid Leave for Organ or Bone Marrow Donation
California employers must grant eligible employees leaves of absence to donate an organ or to donate bone marrow. An employee employed for at least 90 days may take up to five business days of paid leave during any one-year period to donate bone marrow, and up to 30 business days of paid leave during any one-year period to donate an organ. As of 2020, employers must grant an additional unpaid leave of absence, up to 30 business days during a one-year period, for the purpose of organ donation. The one-year period is measured forward from the date an employee’s leave begins. Employers may require employees to use up to five days of earned but unused sick leave or vacation or paid time off during the initial bone-marrow donation leave, and up to two weeks of earned but unused sick leave or vacation or paid time off during the initial organ-donation leave. These leaves are not a break in service for purposes of any right to salary adjustments, sick leave, vacation, annual leave, or seniority, and employers must maintain and pay for group health coverage during the leaves. These leaves do not run concurrently with CFRA leaves. Employees returning from leave generally must be reinstated to their same position or an equivalent position.