Leaves of Absence

Leaves of Absence

Leaves of Absence are enforced by both California and Federal Law – which provide employees with various protected leaves of absence. Here are some of the bigger ones. If you’re looking for information about maternity leave, paternity leave, military leave, CFRA, or FMLA leave, you’ve come to the right place.

California Family Rights Act

The California Family Rights Act, or CFRA, covers private employers, with 50 or more part-time or full-time employees, within 75 miles of the workplace of the employee seeking leave, for each working day, of each of 20 or more calendar weeks in the current, or preceding year. CFRA typically provides up to 12 weeks of unpaid leave to qualified employees. To qualify for leave under the California Family Rights Act, an employee must have worked for the employer for 1 year and have 1250 hours of service during the 12-month period immediately preceding the leave.

Under CFRA it is illegal for a covered employer to deny a covered employee’s request for leave for family care and medical leave such as leaves for:

  • adoption or foster placement of a child by or with the employee;
  • care of a serious health condition of a spouse, child, or parent;
  • care of the employee’s own serious health condition; or
  • care for a newborn child.

Covered employers are prohibited from taking any benefit accrued before the leave from the employee. But, they aren’t typically required to allow the accrual of additional seniority or benefits during the leave. After leave, the employee must be reinstated to the same or a comparable job. But, there is no right to reinstatement if the employee would not have been employed at the time reinstatement is requested. For example, if the employee goes out on leave, and there is a pandemic, and the company has to layoff half its workforce, and you would have been one of the employees laid off, it doesn’t matter that you’re out on leave. The employer can probably still lay you off.

Employees must typically provide 30 days’ notice for any necessary leave, unless the leave is an emergency. In which case, the employee should provide as much notice as possible. The notice should be “sufficient to make the employer aware that the employee needs CFRA-qualifying leave,” including anticipated timing and duration. There is no requirement the request be in writing. But, it should be in writing. Your employer probably has their own form they would like you to use. That’s probably fine. Just make sure you keep a copy of the request for leave form you turn in. If your employer doesn’t have a form, you can find one here: https://legalaidatwork.org/wp-content/uploads/2017/02/Memos_Requesting_Leave.doc. While you’re out on leave it probably makes sense to keep your employer apprised of what is going on and when you expect to return to work.

An employee is also protected from retaliation for taking a CFRA leave. An employee can demonstrate retaliation in violation of the California Family Rights Act by demonstrating:

  • the employer was covered by CFRA;
  • the employee was eligible to take CFRA leave;
  • the employee exercised the right to take CFRA for a qualifying purpose; and
  • the employee suffered an adverse employment action (termination, demotion, reduction in pay, unfavorable change in schedule) because of exercising that right.

Employees who have had their rights under the California Family Rights Act violated can recover:

  • backpay and frontpay;
  • emotional distress;
  • punitive damages; and
  • attorneys’ fees and costs.

Family Medical Leave Act

The Family Medical Leave Act, or FMLA, is very similar to CFRA, so we won’t go into too much detail. Like CFRA, it guarantees eligible employees unpaid leave for any one of the following reasons:

  • the birth of a child of the employee;
  • the placement of a child with the employee for adoption or foster care;
  • the employee’s own serious health condition, which makes the employee unable to perform his or her job; or
  • any “qualifying exigency” arising out of the fact that the employee’s spouse, child, or parent, is on active military duty.

Leave as an Accommodation for a Disability

Even if your employer is not covered by the California Family Rights Act or the Family Medical Leave Act, you still might be entitled to leave as a reasonable accommodation for your own disability. Under California law, employers with 5 or more employees are covered by the Fair Employment and Housing Act, or FEHA. FEHA requires employers to provide reasonable accommodation to employees with disabilities. Finite amounts of unpaid leave are typically considered a reasonable accommodation, that would not create an undue hardship on even the smallest of employers.

Pregnancy Disability Leave

Disability caused by pregnancy is specifically excluded from coverage under the California Family Rights Act, to afford more employees such leave. California employers with 5 or more employees are subject to FEHA’s pregnancy disability leave law, which gives employees who are disabled because of a pregnancy up to 4 months of unpaid leave. Employees should typically submit a doctor’s certification requesting pregnancy disability leave. You can find a sample letter here: https://legalaidatwork.org/wp-content/uploads/2017/02/Letter_Supporting_Pregnancy_Leave-3.doc.

The employer must maintain group health insurance coverage for employees during a pregnancy leave on the same terms as if the employee had continued to work. If the employee fails to return to work after the leave expires, the employer can typically recover premiums paid during the leave.

While the leave is unpaid, employees can typically qualify for pregnancy disability pay from the EDD. An employee can get protected leave for up to 22 weeks:

  • 4 weeks prior to birth and 6 weeks after the birth under Pregnancy Disability Leave/FMLA; and
  • 12 weeks to bond and continue health insurance under the California Family Rights Act / New Parent Leave Act.

An employee can get money for up to 16 weeks while on pregnancy leave:

  • 10 weeks of state disability insurance of 60-70% of wages (4 weeks before birth and 6 weeks after); and
  • 6 weeks of Paid Family Leave of 60-70% of wages after State Disability Insurance is up.

New Parent Leave Act

California’s New Parent Leave Act requires employers with 20 or more employees to allow eligible employees (those who have worked for the employer for 1 year and have 1250 hours of service during the 12-month period immediately preceding the leave) to take up to 12 weeks of unpaid, job-protected leave to bond with a newborn, or a child placed with the employee for adoption or foster care.

USERRA

The Uniformed Services Employment and Reemployment Rights Act, or USERRA, limits an employer’s right to discharge employees who leave work to serve in the armed forces or the uniformed services. If the employee served more than 180 days in the service, on his or her return to work, the employee may not be discharged except for cause for 1 year after the date of reemployment. If an employee served more than 30, but less than 180 days, the employee may not be discharged except for cause for 180 days after the date of reemployment.

Other Types of Leave

There are quite a few other types of unpaid leave that are protected in California. The following are all afforded at least some protections in certain circumstances:

  • Jurors;
  • Witnesses;
  • Victims of domestic violence/sexual assault/stalking;
  • Employees needing to attend judicial proceedings by certain felony victims, and immediate family;
  • Military duty;
  • Alcohol and drug rehabilitation;
  • Voting;
  • Election officers;
  • Employees needing to visit their children’s school;
  • Volunteer firefighters, reserve police officers, and emergency rescue personnel; and
  • Employees needing sick leave to tend to the illness of a family member.

In addition, California provides paid sick leave:

  • As accrued under the Healthy Workplaces, Healthy Families Act; and
  • As provided under other sick leave statutes like the Coronavirus Aid, Relief, and Economic Security Act.

If you have questions about leave, or feel like you were retaliated against for taking leave, you should consult with an experienced employment attorney. We offer a free, confidential, case evaluation. We take most cases on a contingency fee. And even if we don’t take on your case, we want to provide you with resources to help you understand your rights, find an attorney, and do stuff yourself.

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