Question:

Can you please explain the various types of family leave in California? Sorta confusing, tbh.

Answer:

We understand the confusion. There are a handful of types of family leave out there, and they all have their own nuances. Part of the reason for this is because the term “family leave” encompasses several different types of leave! This includes maternity leave, family bonding leave, and leave for serious medical conditions. We’ll explain as best we can, but remember that every situation is different, and your best bet to understanding how each type of leave applies to you is by speaking to an attorney.

The Family and Medical Leave Act

Before going any further, please note that this federal law only applies to (1) public agencies, including local, State, and Federal employers, and schools; and (2) private employers who have 50 or more employees for at least 20 workweeks in the current or preceding calendar year. If you don’t fall under those categories, you’re not considered a “covered employer” and you should feel free to skip this section!

The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 workweeks of unpaid leave per year, and requires group health insurance benefits to be maintained during the leave, as if employees continued to work instead of taking leave. Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave.

But who is an “Eligible” Employee? This is important! An eligible employee for the purposes of the FMLA is one that:

1. works for a covered employer;
2. has worked for at least 12 months, though they need not be consecutive;
3. has worked at least 1,250 hours for the employer during the 12 month period immediately before the leave; and
4. has worked at a location where the employer has at least 50 employees within 75 miles.

As the name would suggest, FMLA leave can be taken for family or medical reasons (also some military leave. Sorta weird, we know). Specifically, FMLA leave can be taken for:

• for the birth of a child, and to bond with the newborn child;
• for the placement of a child through adoption or foster care, and to bond with that child;
• to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
• to take medical leave when the employee is unable to work because of a serious health condition; or
• for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.
• Oh, and the FMLA also allows eligible employees to take up to 26 workweeks of unpaid, job-protected leave in a “single 12-month period” to care for a covered service member with a serious injury or illness.

It’s important to note that this type of leave is unpaid, however, you may be able to “level up” your leave (not a legal term) by using accrued paid vacation leave, paid sick days, or other paid family leave for some or all of the FMLA leave period. Per the Department of Labor, “An employee must follow the employer’s normal leave rules in order to substitute paid leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected.”

This is just the tip of the iceberg when it comes to the details of the FMLA. For a basic primer on the FMLA, visit the Department of Labor’s FAQ, or speak to an attorney for more specific questions.

The California Family Rights Act

The California Family Rights Act (CFRA) law mirrors the FMLA in many ways. For example, the covered employer standard is the same as the FMLA: this law applies to (1) all public employers regardless of the number of employees; and (2) private employers with 50 or more employees for at least 20 workweeks in the current calendar year or the preceding calendar year. If this doesn’t apply to you, keep it moving!

Similar to the FMLA, the CFRA also allows eligible employees up to 12 weeks of unpaid leave in a 12-month period for various family/medical reasons, including the birth of a child, the adoption of a child, or the placement of a foster child, to care for a seriously ill family member, or for the employee’s own serious health condition.

However, there are some differences between the laws, so it’s important to have a good grasp on either if you are a covered employer. For example, under both the FMLA and CFRA, same-sex spouses are included in the definition of “family member.” The CFRA expands the definition of family member to cover registered domestic partners, which the FMLA does not. These laws also define “serious health condition” a little bit differently. For example, the FMLA includes pregnancy in its definition, whereas the CFRA does not. There are also different rules around intermittent leave between the two.

Again, it’s always smart to speak to an attorney about your unique situation!

California’s Pregnancy “Disability” Leave + Insurance

Remember how we said the CFRA doesn’t cover pregnancy? Well, that’s because there are other types of state leave that do! Employers with 5 or more employees are covered by California’s pregnancy disability leave (PDL) law. PDL allows a pregnant employee up to 16 weeks of unpaid, job-protected leave with continuation of health care coverage during the period in which the employee is unable to continue working due to pregnancy, childbirth, or a pregnancy-related medical condition. To utilize this form of leave, an employee should speak to their employer and should be prepared to provide medical documentation, such as a doctor’s note.

Note that PDL is just a form of leave and it is unpaid by the employer. However, while on PDL leave, and employee may qualify for state-sponsored wage replacement benefits under California’s state disability insurance fund (SDI). This leave benefit is available to all California employees (regardless of their employer’s employee pool size). To qualify for maternity “disability” leave under SDI, the employee must:

• Be unable to perform regular work duties for at least 8 consecutive days;
• Hold a job or actively be looking for work at the time SDI begins;
• Have lost wages due to the pregnancy if employed;
• Have earned at least $300 from which SDI deductions were withheld;
• Be under the care of a licensed physician or accredited religious practitioner during the first 8 days of leave and be under this ongoing care during the SDI benefit period;
• Complete and submit a claim form (DE 2501) no earlier than nine days after the employee’s first day of disability begins but no later than 49 days after the employee’s disability; and
• Have the medical care professional (from above) fill out a medical certification of disability.

The usual SDI period for a “normal” pregnancy is up to 4 weeks before the expected delivery date and up to 6 weeks (for vaginal delivery) or 8 weeks (for C-section). This means anywhere from a total of 10-12 weeks of benefits. However, an employee’s doctor may certify to longer periods if there are medical complications or if the employee is unable to perform their regular or customary job duties. Ultimately, the length of benefits will be determined by California’s Employment Development Department (EDD) based on statements by the employee’s health care provider and will depend on the length of time that the employee is actually disabled by the pregnancy.

There’s a 7 day waiting period before benefits start, but if approved by the EDD, the mother will receive up to 70% of her normal salary for the SDI benefit period through the state fund (not the employer).

Before we move on, let’s make sure one thing is crystal clear: PDL and SDI are NOT the same thing. PDL is unpaid, but job-protected leave; conversely, SDI is wage replacement, but not job-protected leave. These two laws interact with each other and when they overlap, we have another “level up” situation— wage replacement AND job-protection. However, there are situations where they may not overlap, and because of this, it’s important to speak to an attorney about your specific situation. Are we seeing a theme yet?

California’s Paid Family Leave

Paid Family Leave (PFL) provides wage replacement benefits for an employee who is taking leave to care for their own serious medical condition, or a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner.

Additionally, this leave can be utilized to bond with (1) a newborn child within the first year, or (2) a newly adopted or foster child within the first year in the employee’s home. This benefit is available to all California employees (regardless of their employer’s employee pool size), and it’s important to note that this is not specific to mothers—fathers can use this bonding time, too!

Under this leave, the employee, once approved by the EDD, is paid up to 70% of the their normal salary for the benefit period through the state fund (not the employer). Approved employees may receive up to 8 weeks of PFL benefits in a 12 month period.

New mothers with an active SDI-related pregnancy claim will automatically be sent a form to transition to PFL once the SDI period is coming to a close. Mothers who weren’t previously utilizing SDI for their pregnancy and all other eligible claimants should complete a Claim for Paid Family Leave (PFL) Benefits (DE 2501F) form using SDI Online or by mail.

Who’s an “eligible” claimant under PFL? This is pretty similar (but not identical, so pay attention!) to SDI. A claimant must:

• Be unable to do their regular or customary work due to the need to provide care for a seriously ill family member or to bond with a new child;
• Be employed or actively looking for work at the time leave begins;
• Have lost wages because they were caring for a seriously ill family member or bonding with a new child;
• Have earned at least $300 from which State Disability Insurance (SDI) deductions were withheld during their base period;
• Complete and submit a claim form no earlier than the first day leave begins, but no later than 41 days after leave begins; and
• Provide medical documentation if the leave is being taken due to medical condition.

As you can see, the eligibility requirements will be a little bit different depending on if leave is taken for bonding or caregiving. While we’re on the subject, let’s talk about what we consider a “serious medical condition” for the purposes of PFL. This would include:

• An illness, injury, impairment, or physical or mental condition of a patient that involves any period of incapacity;
• Inpatient care in a hospital, hospice, or residential medical care facility and any subsequent treatment in connection with this care; or
• Continuing treatment by a physician/practitioner.

Incapacity is a pretty broad term, at first glance, but remember that this is for serious medical issues. Being at home in bed with a cold doesn’t render you incapacitated! Unless complications arise, cosmetic treatments, the common cold, influenza, earaches, upset stomach, minor ulcers, and non-migraine headaches, are examples of conditions that do not meet the definition of a serious health condition for purposes of PFL.

2021 Update to PFL: Military Assist Claims

Beginning January 1, 2021, PFL will expand by adding a new claim type called “Military Assist.” PFL Military Assist benefits will be available to eligible Californians who need time off from work because of the military deployment of their spouse, registered domestic partner, parent, or child to a foreign country.

This time off under the new California law provides employees with paid benefits to:

• Spend time with their family member before deployment or during temporary rest and recuperation leave;
• Make arrangements for the care of their family member’s child or parent;
• Attend official military events or support programs; or
• Attend to other needs arising from their loved one’s deployment.

The EDD may require employees to provide a copy of the covered active duty orders and/or other documentation issued by the military before approving leave under this new type of claim. If approved, claimants would receive the same benefits as any other PFL claimant.

The New Parent Leave Act

The New Parent Leave Act (NPLA) came into effect in 2018, expanding parental leave rights in California. This state law applies to employers with 20 or more employees, which means smaller employers that aren’t subject to the FMLA or CFRA may be covered employers under this law. The NPLA requires that covered employers provide eligible employees with up to 12 workweeks of unpaid leave per year, and requires group health insurance benefits to be maintained during the leave, as if employees continued to work instead of taking leave. Employees are also entitled to return to their same or an equivalent job at the end of their NPLA leave.

Under this law, an employee is eligible for leave if the employee:

• Worked for a covered employer for at least 12 months;
• Worked at least 1,250 hours in the last 12-month period before taking leave; and
• Works at a worksite that has at least 20 employees within a 75-mile radius.

However, note that employees are not eligible if they are covered under the FMLA and CFRA. That means leave can’t be stacked to take 24 weeks under FMLA/CFRA and then also under NPLA!

The employee must take leave within 1 year of the child’s birth, adoption or foster care placement. This law requires employers to provide parental leave only for baby bonding; it does not require employers to provide leave for other reasons, such as a family member’s medical issue.

Wrapping It All Up….

What a ride, yeah? We know that was a lot to take in. Many of these forms of job-protected leave and wage replacement benefits can run concurrently, so if you still have questions, feel free to email bertie@inbetterwetrust.com to set up a free 30-minute consultation with our team to speak about your situation.