Sorting out Leave laws for California Employees during COVID-19
California employers routinely get tripped up with the numerous employee leave laws.
There are federal, state and local laws that are both confusing and overlapping, not to mention the employer’s own policies to consider. New laws are introduced regularly - consider COVID-19 FFCRA leave law (see below) passed in March 2020. Large employers may have an HR expert in-house who can efficiently manage leaves, but due to the myriad complexities, smaller employers may find it more practical to outsource their leave management to experienced HR firms.
An employee has requested a leave of absence. How and where do you begin?
First, it’s important to understand what type of leave the employee is requesting. Is the leave due to the employee’s own health issue, pregnancy, a family member’s health issue, baby bonding, military, a disability, work related health issue, personal, etc.? How long a leave is the employee requesting and are they requesting full time off work or a reduced/intermittent schedule? Does the employee meet the minimum requirements for that particular leave (for example, to qualify for FMLA, the employee must have at least 12 months of service and 1,250 hours worked over those 12 months)?
Next, which laws may apply to the employer and employee?
FMLA (Family Medical Leave Act) & CFRA (California Family Rights Act): Both provide up to 12 weeks of unpaid job protected leave over a 12 month period for a variety of reasons including bonding with a newborn, adopted child or child placed for foster care, caring for a family member with a serious health condition, the employee’s own serious health condition, or a qualifying exigency relating to a close family member’s military service (FMLA only). FMLA /CFRA applies to employers who employ 50 or more part time or full time employees within 75 mile radius of the worksite. Both FMLA and CFRA have eligibility requirements: the employee must have worked for their employer for 12 months and at least 1,250 hours during the 12 months immediately prior to the date of requested leave, and have not previously exhausted 12 weeks of FMLA/CFRA leave on a 12 month look back basis. FMLA runs concurrent with CFRA and PDL.
California PDL (California Pregnancy Disability Leave): An employee may take up to four months of unpaid job protected time off when disabled by pregnancy (before or after the birth); the length of the leave will be determined by the employee’s health care provider for the length of time that the employee is actually disabled by the pregnancy. PFL applies to any California employer who has a minimum of 5 employees. The employee does not need to be working full time and can have any length of employment. PDL runs concurrent with FMLA.
NPLA (New Parent Leave Act): California employers with 20-49 employees are required to provide up to 12 weeks of unpaid parental leave in a 12-month period to bond with a new child within one year of the child’s birth, adoption or foster care. To be eligible, employees must have worked for the employer for at least 12 months and have at least 1,250 hours of service in the prior 12 months and work at a facility that has at least 20 employees within 75-mile radius.
FFCRA (Families First Coronavirus Response Act): Requires certain employers (generally private sector employers with less than 500 employees) to provide their employees with up to two weeks of paid sick leave for reasons related to COVID-19 and an additional 10-weeks of paid expanded family and medical leave when an employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. Provisions apply from April 1, 2020 to December 31, 2020.
SF FFWO (San Francisco Family Friendly Workplace Ordinance): Applies to employers with 20 or more employees. Employees who have worked at least 6 months with current employer and work at least 8 hours/week are permitted to request a flexible or predictable working arrangement to assist with caregiving responsibilities.
California income replacement programs
California State Disability (SDI): This is a California state offered benefit that provides partial wage replacement (60-70% depending upon income) to eligible employees who are unable to work due to a disability including pregnancy.
California Paid Family Leave: This is a California state offered benefit that provides employees with up to eight weeks of pay (to 60-70%) while bonding with a new child (both moms and dads) or to care for a seriously ill family member.
SF PPLO (San Francisco Paid Parental Leave Ordinance): Employers are required to provide up to 8 weeks of supplemental compensation to employees working in San Francisco who receive California Paid Family Leave benefits to bond with a new child. This applies to employers with more than 20 employees.
Additionally, employees may, in some cases, use accrued/unused sick/vacation/PTO while on leave or to supplement these income replacement programs.
Medical Insurance while on leave
For FMLA, CFRA, PDL and NPLA, employers are required to maintain and pay for health insurance premiums at the same level and under the same conditions as though the employee were continuously employed during the leave period.
What next?
If the employee is requesting a medical leave, the employee and physician should complete a medical certification form. If in California, use the following forms:
Calhr-754 for employee https://www.calhr.ca.gov/Documents/calhr-754.pdf or
Calhr-755 for family member https://www.calhr.ca.gov/Documents/calhr-755.pdf forms.
THRM recommends preparing an individualized letter to the employee requesting the leave. The letter should contain
the leave approval status and indication of which leave they will be placed on,
the approved dates of the leave,
any income replacement programs they may apply for,
the status of medical insurance while they are on leave,
and any other expectations including their return to work date.
This letter is important for both the employee and the employee’s manager – to be clear on the provisions of the leave and to manage expectations.
Please contact edna@thehrmanager.com so we can answer any of your leave of absence questions or assist with a particular or difficult leave request.