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Managing Medical Leave in California

   1/1/2014

Scope--This toolkit provides a general overview of various California state laws relating to managing employee medical leaves to care for employees or a family member or registered domestic partner with a medical condition. It briefly discusses paid vacation, sick time rules and paid time off policies, or statutes in California, as often these benefits are used in conjunction with such medical leaves. It also covers California state wage replacement programs that provide for partial compensation when the employee is absent for such medical leaves. It does not encompass California laws related to other nonmedical forms of protected leave such a voting leave, jury duty, crime victim or school visitation, nor does it cover workers’ compensation laws.

Overview

Managing medical leaves of absence in California can be a big challenge for HR professionals due to the state’s multiple leave laws and their interaction with federal laws and employer policies. California employers must consider both state and federal laws, such as the California Family Rights Act (CFRA), California Pregnancy Disability Leave (PDL) and the Family and Medical Leave Act (FMLA). Medical leaves of absence typically also implicate issues under the California Fair Employment and Housing Act (FEHA), Title VII of the Civil Rights Act, California Workers’ Compensation laws, and the Americans With Disabilities Act (ADA) Although some provisions of the California leave laws mirror the federal FMLA, other provisions do not. Therefore, organizations must be aware of all statutory obligations. This article provides an overview of California leave laws and, if applicable, the interaction of these laws with the federal FMLA. The following leave laws and types of leaves are examined:

  • The California Family Rights Act.
  • Pregnancy disability leave.
  • Organ and bone marrow donor leave.
  • Leave for voluntary drug or alcohol rehabilitation.
  • Leave for victims of serious crime or domestic violence.
  • Paid leave rights.
  • San Francisco Paid Sick Leave Ordinance.
  • Family Temporary Disability Insurance (Paid Family Leave) Program.
  • State Disability Insurance.

Managing employees’ absences in compliance with the state and federal leave laws and employer policies or practices is a complex process. Therefore, employers are well advised to consult with an employment law attorney with experience in both California and federal leave laws when administering medical leaves.

Business Case

California is known as having myriad employment laws related to medical leaves of absence that are often more generous than federal employment laws. Compliance with these laws is critical for any organization with employees in California because liabilities for noncompliance can be costly from legal, employee relations and employer brand perspectives. See, Managing Leaves of Absence in California Is Very Complicated, Experts Say and Tips to Untangle Leave Laws in California.

HR’s Role

The HR professional’s role in managing leaves of absence in California is as follows:

  • Understand the relevant employment laws in California and the employer’s legal responsibilities.
  • Educate managers to recognize when employees’ absences may fall under a leave law and to communicate such absences with HR.
  • Ensure that organization policies comply with the laws.
  • Understand the interaction of such laws with other state and federal laws.
  • Communicate and assist employees in exercising rights under the laws.

See, California’s Time-Off Laws Present HR Challenges.

California Family Rights Act

The California Family Rights Act (CFRA), enacted in 1991 and amended in 1993, partly mirrors the  federal Family and Medical Leave Act (FMLA). The overall intent of the CFRA is to mandate that covered employers help employees balance work and personal medical demands while maintaining reasonable job protections. The CFRA provides job-protected medical leave for eligible employees with unpaid time off for their own serious health condition; to care for a covered family member, including registered domestic partners, with a serious health condition; and for bonding with a newborn child, a foster child or an adopted child. Though the CFRA closely resembles the federal FMLA, the two laws do differ. See, Comparison Between New Family & Medical Leave Act & Ca. Family Rights Act Regulations (PDF).

Employer coverage

Similar to the federal FMLA, the CFRA applies to private employers that have employed at least 50 employees within any state of the United States, the District of Columbia or U.S. territory or possession for 20 or more calendar workweeks during the current or preceding calendar year. The 20 workweeks do not have to be consecutive. For employee eligibility for the CFRA, the 50 employees must work within a 75 mile radius (see below). Public agencies are covered employers without regard to the number of employees employed. Public as well as private elementary and secondary schools are also covered employers without regard to the number of employees employed. 

California employers with operations in other states must count all employees when determining whether they meet the CFRA’s test of 50 employees during 20 workweeks, regardless of the number of hours worked. In addition, employees from temporary or staffing agencies or professional employer organizations (PEO) must be counted if a joint employment relationship exists. Although the CFRA does not specifically address joint employment, Section 7297.10 of the California Code of Regulations indicates that, barring inconsistencies with state law, the California Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE) incorporates the federal regulations interpreting the FMLA. See, FMLA §825.106 for joint employment guidance.

Employee eligibility for leave

In addition to employer coverage, the employee must meet three specific eligibility requirements to take CFRA job-protected leave: First, the employee must have 12 months of service with the employer. The 12 months of service do not have to be consecutive, and unlike the FMLA, there is no seven-year look-back limit. For example, if an employee in California worked six months for an employer eight years ago and was rehired by the same employer, that employee would meet the 12 months of service requirement six months after the rehire date. Second, the employee must have worked at least 1,250 hours in the 12-month period immediately prior to the date the CFRA leave is to begin. Last, as of the date the employee gives notice of the need for leave, the employer must have at least 50 part- or full-time employees on payroll within 75 miles of the worksite where the employee requesting the leave is employed.

Qualifying events

The CFRA provides eligible employees up to 12 weeks of protected, unpaid leave in the 12-month period for the following qualifying events:

  • Birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.
  • Bonding and/or caring for a newborn child (counts toward FMLA and CFRA leave entitlements).
  • Care for the employee’s child, parent or spouse, or registered domestic partner who has a serious health condition.
  • An employee’s own serious medical condition that prevents the employee from performing his or her job duties.

Interaction with federal FMLA

The CFRA generally differs from the FMLA in the following ways:

  • The 12 workweeks of family care and medical leave may be taken under state law concurrently with federal FMLA, except for leave taken under the federal FMLA for disability due to pregnancy, childbirth or related medical conditions. The CFRA does not cover leave taken due to pregnancy or childbirth and also does not cover leave taken due to service member’s needs. California PDL covers leave taken due to pregnancy, childbirth or related medical conditions.
  • Unlike the FMLA, registered domestic partners are covered the same way spouses are under the CFRA. Theoretically, an employee could take 12 weeks of leave to care for a domestic partner under the CFRA, then take an additional 12 weeks under the FMLA to care for a child with a serious health condition. The FMLA does not cover leave taken for a registered domestic partner’s serious health condition.
  • Under CFRA regulations, the employer may require the employee, or an eligible employee may elect, to use any accrued vacation time or other accumulated paid leave other than accrued sick leave, regardless of whether an employer has a paid leave policy. Under the FMLA, the employer can only require that paid leave be used if it is stated in a paid leave policy. If CFRA leave is for the employee’s own serious health condition, the employee may elect or the employer may require the employee to use any accrued vacation time or other accumulated paid leave, including any accrued sick leave. The CFRA also states that the employee and employer can agree to use accrued sick time for the medical leave of absence. Under California PDL leave, an employer may not require use of vacation or PTO time.
  • Whereas employee leave relating to pregnancy disability is covered under the FMLA, it is not covered under the CFRA. However, it is covered under California’s Pregnancy Disability Leave.
  • The FMLA provides leave for a “qualifying exigency” arising out of the fact that an employee’s spouse, son, daughter or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty status in the National Guard or Reserves in support of contingency operations). The CFRA does not cover service member leave or qualifying exigency.

Pregnancy Disability Leave (PDL)

The California Fair Employment and Housing Act (CA-FEHA), the same state law that prohibits discrimination, provides protection for pregnancy-related disabilities. Pregnancy disability leave (PDL) allows employees disabled by pregnancy, childbirth or a related medical condition to take up to four months, which is defined as 17.3 weeks or 122 days, of job-protected leave. It does not provide for any time off for the birth or placement of a child in foster care or adoption. Thus, a woman with a difficult pregnancy is entitled to up to 17.3 weeks or 122 days of disability leave (with the proper medical certification), and the employer cannot discriminate against her on the basis of the pregnancy or pregnancy-related disability. Employers should also note that additional leave time under FEHA as a reasonable accommodation could be triggered if an employee has a qualifying disability.  See, California Code of Regulations Subchapter 6A. Sex Discrimination: Pregnancy, Childbirth or Related Medical Conditions.

Employer coverage

PDL applies to private employers that have employed at least five or more full- or part-time employees. California public employers are covered regardless of the number of employees. A not-for-profit religious association or religious corporation that is exempt from federal and state income tax is not an employer under the meaning of this act.

Eligible employee

Unlike the CFRA and the FMLA, PDL has no length of service or hours worked requirement before an employee disabled by pregnancy, childbirth or related medical condition is entitled to a pregnancy disability leave. Therefore, a newly hired employee is eligible for such leave immediately.

Duration of leave and qualifying events

PDL can be taken for any period(s) of actual disability caused by the employee’s pregnancy, childbirth or related medical condition, per pregnancy. Time off needed for prenatal or postnatal care; doctor-ordered bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; childbirth; postpartum depression; loss or end of pregnancy; or recovery from childbirth or loss or end of pregnancy are all covered by PDL.

An employee is entitled to up to four months of PDL while the employee is disabled by pregnancy, childbirth or related medical condition. For purposes of PDL, “four months” means time off for the number of days the employee would normally work within the four calendar months (one-third of a year, or 17.3 weeks or 122 days), following the commencement date of a pregnancy disability leave. For a full-time employee who works five eight-hour days per week, or 40 hours per week, “four months” means 88 working eight-hour days or 692 hours of leave entitlement, based on an average of 22 working days per month for 17.3 weeks in four months times 40 hours per week. Employees working a part-time schedule would have their PDL calculated on a pro-rata basis.

PDL permits an employer to require an eligible employee to obtain a certification from her health care provider of her need for PDL, or the medical advisability of an accommodation or a transfer. The certification should include  (1) the date on which the employee became disabled due to pregnancy or the date of the medical advisability of a transfer, (2) the probable duration of the period(s) of disability or the period(s) for the advisability of a transfer, and (3) a statement that, due to the disability, the employee is either unable to work at all or unable to perform any one or more of the essential functions of her position without undue risk to the employee or to other persons, or a statement that, due to pregnancy, a transfer to a less strenuous or hazardous position or duties is medically advisable. 

Interaction with FMLA and CFRA

The PDL runs concurrent with the FMLA but not the CFRA. Pregnancy is not covered or considered a serious health condition under the CFRA, and women with difficult pregnancies are not entitled to protected leave under the CFRA. The CFRA leave can only be used by an employee following the birth of a child to care for a healthy newborn or a newborn with a serious health condition. Instead, disabilities related to pregnancy are covered under the PDL and the FMLA and possibly FEHA as a disability reasonable accommodation.

Even if an employee has no complications with her pregnancy, she could be entitled to a PDL leave if she is disabled due to a pregnancy-related medical condition post childbirth.

Comparison of CFRA, FMLA, PDL

The chart below compares the provisions of all three laws.

             

Family Medical Leave Act

California Family Rights Act

California Pregnancy Disability Leave

Pregnancy disability covered as a serious health condition?

Yes, covers both pregnancy disability and birth or adoption.

No requirement for a serious health condition for employee or child. Birth or adoption only.

Yes, covers employees disabled by pregnancy only.

Covered employer

50+ employees

50+ employees

Five+ employees

Eligible employee

12 months and 1250 hours

12 months and 1250 hours

None

Duration

12 weeks

12 weeks

17.3 weeks of 122 days (see above)

Discrimination provision

No provision for discrimination

No provision for discrimination

Pregnancy-related discrimination prohibited

Certification

Employer may require

Employer may require

Employer may require (different standard than FMLA/CFRA)

Employee notice

30 days if foreseeable, or as soon as practicable

30 days if foreseeable, or as soon as practicable

30 days if foreseeable, or as soon as practicable

Employer response to leave request

[Note: The March 2002 Supreme Court decision in Ragsdale v. Wolverine Worldwide Inc. clarified the employer’s responsibilities in providing advance notice that leave may be counted as FMLA leave. Although the lack of advance notice does not entitle employees to more than 12 weeks of FMLA leave, employers should make a good faith effort to provide advance notice and have clear and well-communicated policies about what types of leave constitute FMLA leave. See, Employment Law: The Supreme Court Reins in the FMLA (Slightly)].

Within two business days of an employee’s request unless extenuating circumstances

As soon as practicable, no later than 10 calendar days after an employee’s request

As soon as practicable, no later than 10 calendar days

Intermittent or reduced leave

When medically necessary, in time blocks as small as payroll system permits. For birth or adoption, must have employer’s consent.

When medically necessary, in time blocks as small as payroll system permits. For birth or adoption, in two-week increments.

When medically necessary, in time blocks as small as payroll system permits.

Substituting paid leave

Employee may choose, or employer may require. Employer need not permit use of sick leave for other than reasons specified in leave policy.

Employee may choose, or employer may require. Sick leave for other than employee’s own medical illness requires both employer and employee to agree.

Employee may choose to substitute paid leave, but employer may not require.

Continuation of benefits

Employer must maintain coverage under group health plan under same condition. Can require employee to pay his/her portion of the premiums.

Employer must maintain group health benefits and all other benefits and seniority under same conditions as applicable to other unpaid disability leaves.

Employer must maintain coverage under group health plan under the same condition. All other benefits and seniority under same conditions as applicable to other unpaid disability leaves.

Right to reinstatement

Same or equivalent position. Key employee exception.

Same or comparable position. Key employee exception.

Same position. Undue hardship defense.

See, The Stork Has Landed: California Employers Must Maintain Pregnancy Benefits.

Organ and Bone Marrow Donor Leave

Employer coverage

This paid leave law applies to private and public employers with at least 15 employees. Unlike the leave laws previously mentioned, this law does not specify the number of weeks in a year that the employer must employ 15 employees. The law requires employers to provide up to 30 days of paid leave per year for an organ donation in any one-year period, and up to five days of paid leave per year for a bone marrow donation. The leave may be taken in one or more periods of absences, but the combined total may not exceed the 30- or five-day maximum. See, Bone Marrow/Organ Donor Leave.

Eligible employee

The law references the definition of “eligible employee” from California Labor Code §1501, which states that an employee is defined as an individual with at least a 90-day period of employment with the employer immediately preceding the date of leave. 

Benefits

Employers must maintain group health plan coverage under the same condition as if the employee had been actively at work during the leave period. In regard to other benefits, the employer must continue to treat the employee as continuously employed during this leave period for the purpose of his or her right to salary adjustments, sick leave, vacation, paid time off (PTO), annual leave or seniority.

Substitution of paid leave

An employer may require an employee to take up to five days of earned sick, vacation or PTO for leave related to bone marrow donation and up to two weeks for leave related to organ donation absent a collective bargaining agreement prohibiting it. Employers must pay employees for the leave time if paid leave has not yet been earned or if it is exhausted.

Other provisions

The following is a list of other general provisions of the law:

  • The employer can require an employee to provide written verification that the employee is an organ or bone marrow donor and that there is a medical necessity for the organ or bone marrow donation.
  • Leave taken under this act does not run concurrently with leave under the FMLA or the CFRA.
  • Employers must restore an employee to the same or equivalent position after return from leave.

Time Off for Voluntary Drug or Alcohol Rehabilitation Programs

Employers with 25 or more employees must provide unpaid time off for employees voluntarily attending drug or alcohol rehabilitation programs absent undue hardship on the employer as a form of reasonable accommodation. The law does not provide a specific amount of time off; instead the length of the leave is determined to be reasonable which sometimes follows  the length of the rehabilitation program. Employees may use accrued paid sick leave, and the employer may permit the use of PTO or vacation leave. This type of leave may run concurrently with the FMLA or the CFRA. See, California Labor Code §1025.

Time Off for Crime Victims

California Labor Code §230.2 requires all employers to provide unpaid time off for employees who are victims of certain crimes or whose immediate family members are victims of certain crimes.  The crimes include violent felonies defined by Penal Code §667.5(c) or serious felonies defined by Penal Code §1192.7(c), as well as felonies related to theft or embezzlement. 

Labor Code section 230.5 allows an expanded list of employee/crime victims to take time off, to appear in court to be heard at any proceeding, including any delinquency proceeding, a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue, in connection with any of the following offenses:

  • vehicular manslaughter while intoxicated;
  • felony child abuse likely to produce great bodily harm or a death;
  • assault resulting in the death of a child under eight years of age;
  • felony domestic violence;
  • felony physical abuse of an elder or dependent adult;
  • felony stalking;
  • solicitation for murder;
  • a serious felony, as defined in the Penal Code;
  • hit-and-run causing death or injury;
  • felony driving under the influence causing injury; and
  • sexual assault.

The law defines "victim" broadly to include any person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term "victim" also includes the employee’s spouse, parent, child, sibling, or guardian.

The employee is required to provide reasonable advance notice to the employer "unless the advance notice is not feasible."   Employers are striclty prohibited from taking any adverse action against an employee as a result of an unscheduled absence related to the specified court proceedings if the employee provides certification of the court-related absence within a reasonable period of time after the absence. Time off for attendance at one of the specified court proceedings is unpaid, but an employee has the right to use accrued vacation or other paid time off to cover the absence.

Employers are further prohibited fronm discharging or in any other manner discriminating or retaliating against an employee for taking time off in connection with one of the specified court proceedings.

Time Off for Victims of Domestic Violence or Sexual Assault

California Labor Code §230.1 requires an employer with 25 or more employees to provide victims of domestic violence or sexual assault unpaid time off for up to 12 weeks to obtain help from a court, seek medical attention, obtain services from an appropriate shelter, program or crisis center, obtain psychological counseling, or participate in safety planning, such as permanent or temporary relocation.

Labor Code sections 230 and 230.1 currently prohibit an employer from discharging, discriminating or retaliating against an employee who is a victim of domestic violence or sexual assault for taking time off from work in connection with court proceedings or to seek medical attention and other specified services as a result of these crimes against them.

Effective January 1, 2014, SB 400 further extended the time-off protections to include employees who are victims of stalking. The law further prohibits discharge, discrimination and retaliation against employees because of their status as a victim of domestic violence, sexual assault or stalking if the employee/victim provides notice to the employer or the employer has actual knowledge of this status.

Employers are also required to provide reasonable accommodations to employees who are victims of domestic violence, sexual assault or stalking and request an accommodation for their safety while on the employers premisses.

Reasonable accommodations may include the implementation of safety measures, such as:

  • job transfer;
  • job reassignment;
  • modified schedule;
  • changed work telephone;
  • changed work station;
  • lock installation;
  • assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace;
  • implementation of safety procedures;
  • adjustment to job structure, the workplace facility, or work requirements in response to domestic violence, sexual assault, or stalking; and
  • referral to a victim assistance organization.

As with disability accommodations, employers are required  to engage in a timely, good faith inactive process with the employee to determine effective reasonable accommodations.

An employer may request an employee to provide a written certification that the employee is a victim of domestic violence, sexual assault or stalking, and that the requested accommodation is for the safety of the victim while at work. The employer may request recertification every six months. Any documentation provided to an employer identifying an employee as a victim of domestic violence, sexual assault or stalking must be kept confidential and not disclosed by the employer except as required by law or necessary for the safety of employees in the workplace. The employer must give the employee notice before any disclosure of the information is made.

The employee may request a new accommodation based on changed circumstances, and in such a case, the employer must repeat the interactive process with the employee.

Employees are required to notify their employer when an accommodation is no longer needed.

Employers are prohibited from retaliating against an employee who has requested a reasonable accommodation, whether the request was granted or not. SB 400 authorizes reinstatement, back pay and injunctive relief for violations of the law.

Paid Leave Rights

Though the laws discussed thus far provide California employees with job-protected leave, the state also has several laws regarding wage replacement for employees on family or medical leave. These laws do not provide the right to leave, with the exception of San Francisco’s Paid Sick Leave, which is discussed below. Instead, the laws provide potential rights to the payment of wages for employees taking such leave. Therefore, employers need to be cognizant of these laws when managing leave for employees in California. California employers are not required to provide paid sick leave or paid vacation/PTO to employees, with the exception of those covered under the San Francisco law. However, California employers offering such vacation or PTO leave must comply with California law and rules of the California Department of Industrial Relations, Division of Labor Standards Enforcement.

Vacation and PTO

Paid vacation and PTO are considered a form of wages in California that are earned while working, if employers offer paid vacation or PTO. Employers must pay earned, unused vacation or PTO (or any paid day that can be used for any reasons) at the end of employment, whether termination is voluntary or involuntary, unless the vacation or PTO plan is covered under the Employee Retirement Income Security Act (ERISA). Once earned, vacation or PTO time (or any paid day that can be used for any reasons) cannot be forfeited. In other words, use-it-or-lose-it policies are prohibited in California. However, employers can place a reasonable cap on the accrual of vacation. The DLSE will look at several factors to determine if a cap is reasonable:

  • The amount of vacation offered.
  • Opportunity of employees to use the vacation.
  • Business involved.

Employers may cap the maximum amount of vacation days that an employee may accrue, but under applicable case law the cap must be “reasonable.” The DLSE historically opined a worker must have at least nine (9) months after the vacation accrues before a cap will be deemed effective, and it was recommended that any cap should be 1.75 times the annual accrual rate. In March 2006, the Labor Commission issued a new Manual and withdrew its prior opinion letters on the issue. The current enforcement position suggests the DLSE has adopted a less stringent approach as to what constitutes “reasonable.” The DLSE Manual currently states that vacation policies that require vacation to be used in the year it is earned “or in a very limited time following the accrual period” will not be enforced. Thus, a cap of 1.5 times the annual vacation accrual may be enforceable. However, an employer providing cap under 1.75 is exposing itself to legal risk since the law is unclear. Many employers maintain a cap of 1.75 times the annual accrual rate to minimize risk. 

Employers do have latitude in policy development regarding the amount of paid vacation provided, when employees begin earning vacation and when employees may take vacation. See, Vacation.

Employers are encouraged to have clearly written vacation and PTO policies that have been reviewed with legal counsel to ensure compliance with the laws and rulings. Paid sick time is not considered wages and is not due at termination.

Kin Care Leave

Kin Care does not provide additional leave, but it does require employers that provide paid sick leave to permit employees to use up to half of their accrued annual sick leave benefits to care for a sick family member, including a child, parent, spouse, registered domestic partner or child of a domestic partner. This law applies to all California employers—both public and private, regardless of number of employees—that provide sick leave to their employees. It does not require employers to provide paid sick leave benefits; rather Kin Care is a right granted to eligible employees. Leave taken under Kin Care is protected and may not be “counted against” or used as a basis for disciplining an employee for absenteeism. However, all general conditions and restrictions placed by the employer on the use of paid sick leave by an employee also apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse or domestic partner.

Generally, Kin Care would apply to accrued increments of compensated leave provided by the employer to the employee for doctor appointments, if the employee is physically or mentally unable to perform duties due to illness, injury or a medical condition, or absences for other medical reasons. Therefore, in addition to traditional sick leave banks, this law would apply to combined PTO plans as well. However, the law does not apply to uncapped sick leave plans. Leave taken under Kin Care can run concurrently with an absence qualifying for the FMLA or the CFRA. See, California Labor Code §233 and Calif. ‘Kin Care’ Provision Does Not Apply to Uncapped Sick Leave Plans.    

San Francisco Paid Sick Leave Ordinance—Proposition F

San Francisco adopted a paid sick leave ordinance to ensure that employees have adequate sick leave available to live a healthy, productive lifestyle. This law, effective Feb. 5, 2007, mandates all employers to provide paid sick leave to employees working in San Francisco, although the amount of sick leave provided varies by size of the employer. See, Chapter 12 W—San Francisco Paid Sick Leave.

Covered employers

The San Francisco Administrative Code references California Labor Code §18 for the definition of “employer,” basically encompassing all employers. The law makes a distinction between small employers—defined as those with fewer than 10 employees during any week—and all other employers for the purposes of a paid sick leave cap per employee. In determining the number of employees in any given week, employers must count all employees regardless of hours worked by the employees and including those employees working outside San Francisco. Both small and other employers must provide one hour of paid sick leave for every 30 hours worked. However, the requirement to provide paid sick leave only applies to employees working in San Francisco.

Eligible employee and sick leave accrual and use

Employees working in San Francisco are eligible for paid sick leave; therefore, employees working for employers outside the San Francisco area are not covered under this law. Employees hired by an employer in San Francisco on or before Feb. 6, 2007, must begin earning sick time immediately. However, employees hired after this date do not have to start accruing sick leave until 90 calendar days after their hire date irrespective of the location of work during the 90-day period. Of course, the employer may offer a more generous policy.

Employees accrue one hour for every 30 hours worked up to the cap of 40 hours for small employers or 72 hours for employers with 10 or more employees. The cap on hours is not calculated on an annual basis. Rather, at any given time, an employee may only have an available bank of accrued paid sick leave of 40 hours or 72 hours. See, Office of Labor Standards Enforcement’s FAQ (PDF).

Employees must be permitted to use the mandated paid sick time for their own illness or to care for a child, parent, spouse or registered domestic partner with an illness. For employees without a spouse or registered domestic partner, an employee may designate one other individual for whom to use the mandated sick leave to care for. Employers must notify the employee of the opportunity to make such a designation no later than 30 work hours after the paid sick leave begins to accrue. The employee has 10 workdays to designate the individual and must be given the opportunity to change the designation annually within 10 workdays.

Miscellaneous provisions

The following provisions also apply:

  • Employers are not required to pay out unused accrued sick time at termination.
  • Employers with existing sick or paid time off policies that meet or exceed the requirements of the law are not required to provide additional paid sick leave.
  • Employers are prohibited from requiring employees to find replacement workers for absences covered under this provision but can require that employees provide reasonable notice.
  • This ordinance has a posting requirement notifying employees of this benefit. Employers must post the notice in languages other than English that 5 percent of the employee population speaks.
  • Employers must retain records of hours worked by employees and paid sick leave taken by employees, for a period of four years.

See:

Paid Family Leave Benefits

In 2004, California created the Family Temporary Disability Insurance program. This program is commonly known as Paid Family Leave ("PFL"), and allows an employee to apply for up to six weeks of government-provided wage replacement benefits to cover unpaid time off from work to care for a seriously ill child, spouse, domestic partner or parent, or to bond with a child within one year of birth or the placement of the child in connection with foster care or adoption.

Effective July 2, 2014,the law is ammended to provide PFL benefits to employees who are off work without pay to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law. The law defines a "sibling" as a person related to another person by "blood, adoption or affinity through a common legal or biological parent.   However, the ammendments do do not impose any new family care leave entitlement or expand obligations of employers to grant family care leaves under the California Family Rights Act.

State Disability Insurance

State Disability Insurance (SDI), administered by the California Employment Development Department (EDD) through the state’s unemployment compensation disability program, provides partial wage replacement for employees unable to work due to the employee’s own nonwork-related sickness or injury for up to 52 weeks. This program is funded by employee contributions in the form of a state tax through payroll deductions. There are no employer contributions for the state plan. However, the law permits employers to establish a private short-term disability plan, either insured or self-insured, that is equal to or better than the state plan. The employer must receive EDD’s approval of the plan, and the majority of employees must agree to the voluntary plan as opposed to the state disability plan. See, Voluntary Plans.

Although there are a few differences in voluntary versus state plans, for ease of understanding, the information provided below is based on a state disability plan.

Employer coverage and employee eligibility

An employer is an entity with one or more employees in the current or preceding calendar year and that has paid wages exceeding $100 in any calendar quarter. According to the EDD, an employee is eligible if the following criteria are met:

  • The individual must be unable to do his or her regular or customary work for at least eight consecutive days.
  • The individual must be employed or actively looking for work at the time he or she becomes disabled.
  • The individual must have lost wages because of the disability or, if unemployed, have been actively looking for work.
  • The individual must have earned at least $300 from which SDI deductions were withheld during a previous period.
  • The individual must be under the care and treatment of a licensed doctor or accredited religious practitioner during the first eight days of his or her disability. (The beginning date of a claim may be adjusted to meet this requirement.) The individual must remain under care and treatment to continue receiving benefits.
  • The individual must complete and mail a claim form within 49 days of the date he or she became disabled or risk losing benefits.

The individual’s doctor must complete the medical certification of the disability. A licensed midwife, nurse-midwife or nurse practitioner may complete the medical certification for disabilities related to normal pregnancy or childbirth.

A spouse, registered domestic partner, parent or child who provides care for an SDI claimant may also be eligible to receive PFL benefits.

Eligible employees must be covered under a state SDI or voluntary plan. Employees are eligible at the time of hire if they meet the above requirement regardless of hours worked or employment classification.

Length and amount of benefit

Generally, employees may obtain up to 52 weeks of full SDI benefits, or the amount of wages in the base period, whichever is less. The base period covers four quarters, basically the wages an individual earned in the previous five months to 18 months prior to the SDI claim. Employees receive about 55 percent of the highest quarter earnings of the base period up to the maximum benefit amount. There is a seven-day wait period before benefits are payable. See, California Unemployment Insurance Code, Part 2. Disability Compensation.

Interaction with other laws

Below are the ways in which California SDI relates to other laws:

  • Pregnancy Disability Leave. Employees may receive SDI concurrently with PDL.
  • CFRA. Employees may receive SDI concurrently with leave taken for their own serious health condition under the CFRA.
  • FMLA. Employee may receive SDI concurrently with leave taken for their own serious health condition under the FMLA.
  • Workers’ Compensation Insurance (WC). Generally, employees may not receive wage replacement from both WC and SDI.

Interaction with employer-paid vacation and sick leave policy

Employers can require employees to use paid leave during the seven-day waiting period.
 
Vacation is not considered wages for SDI benefits. Therefore, employers can require or allow employees to use vacation while receiving SDI benefits. However, both the FMLA and the CFRA prohibit employers from requiring employees to substitute paid leave if the employee is receiving wage replacement benefits under SDI or workers’ compensation, except during the wait period or to supplement the difference in full wages versus partial wage replacement. Employers cannot require the use of PTO, sick or vacation during leave for PDL.

SDI pays only a portion of employee’s regular earnings, approximately 55 percent. Therefore, employers may require or permit employees to supplement SDI with PTO or sick time, up to 100 percent of the employee’s regular pay as long as the employer has a policy requiring employees to supplement benefits payments and the PTO or sick leave policy permits the use of the paid leave for the purpose the employee is taking the leave

Employer responsibilities

Employers must post EDD Form DE 1857A if covered under both SDI and Unemployment Compensation laws. If the employer is only covered under SDI, post DE 1858. If the employer is only covered under unemployment, post DE 1857D.

Employers must also provide employees with the following documents:

  • DE 2515 pamphlet, which must be provided at the time of hire and if an employee becomes disabled due to pregnancy or to his or her own nonwork-related serious health condition.
  • Form DE 2503, which will be sent by the state to the employer once an employee files an SDI claim. Employers must complete and return the form within two days of receipt.
  • DE 35, Notice to Employees, which informs employees that the employer is required to send copies of Employee’s Withholding Allowance to the Franchise Tax Board under certain circumstances.
  • DE 2320, For Your Benefit: California’s Programs for the Unemployed, which provides information on unemployment, disability, paid family leave and Job Service benefits.
  • DE 2515, Disability Insurance Provisions information brochure.
  • DE 2511, Paid Family Leave information brochure.
  • DFEH Sexual Harassment Pamphlet, which must be provided upon hire to every California employee and independent contractor.

These forms or pamphlets (in a variety of languages) can be downloaded from Disability Insurance—Forms and Publications, except Form DE 2503, which the state sends to the employer.

Communications

Federal law and California law require employers to communicate legal rights to employees by means of posters or pamphlets and, in some instances, text in employee handbooks. Employers must post both federal FMLA and CFRA requirements and distribute required pamphlets for applicable laws. Copies of the required postings are available at the California Department of Industrial Relations website.

Templates and Tools

Information tools

 

Agencies and organizations

 

Acknowledgement—This article was prepared for SHRM Online by Theresa Adams, PHR, GPHR. She is a human resource knowledge advisor in SHRM’s Knowledge Center. In addition to relying on her own professional expertise and research, the author has incorporated existing SHRM Online content in developing this treatment. The article was reviewed and updated by Jonathan A. Siegel and Matthew Bennett at Jackson Lewis LLP.

Publication Note—This treatment was first published in December 2012 and was thoroughly revised and updated in January 2014. SHRM staff will update it periodically as developments warrant. For the most recent developments, see the Benefits HR Discipline and articles archived under the Family and Medical Leave topic. Notify SHRM of broken links or concerns about the content by e-mailing content@shrm.org.

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