More Confusion Coming From California’s Paid Family Leave Act

By James J. McDonald Jr.

Earlier this year, California Gov. Jerry Brown signed into law an expansion of the state’s “paid family leave” benefit.

While the new law does not become effective until July 1, 2014, already media outlets have reported that employees will have expanded rights to paid time off from work next year. This is only partially correct and it continues to spread the confusion over what “paid family leave” really means.

Beginning in 2004, California employees who took time off work to care for an ill parent, child, spouse, or domestic partner, or to bond with a newborn or newly-adopted child, could receive up to six weeks of pay through the state’s Employment Development Department (EDD).

No right to job-protected leave

The rate of pay is the same as if the employee receives disability benefits, and the benefit is paid by the EDD out of the disability insurance fund to which employees contribute via payroll deduction. The new law extends paid leave to cover care for ill grandparents, grandchildren, siblings and parents-in-law.

The paid family leave law does not provide employees with the right to take job-protected leave, however. It only provides pay if the employee is otherwise able to take time off work.

Family leave where reinstatement is guaranteed under the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) is not available to all employees. Those laws only cover employers with 50 or more employees, and the employee must have been employed for at least a year, must have worked at least 1,250 hours in the preceding 12 months prior to the leave, and must work at a location where at least 50 employees are employed in a 75-mile radius.

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Employers should examine leave policies

Employees may only take up to 12 weeks of protected leave per year. Care for grandparents, grandchildren, siblings and in-laws is not covered by FMLA/CFRA in any event.

Time off to care for an ill relative need not be provided as a “reasonable accommodation” under the disability discrimination laws. Therefore, if employees do not qualify under FMLA/CFRA, they have no right to job-protected leave regardless of the “paid family leave” law unless their employer has policies providing for additional leave beyond what FMLA/CFRA requires.

California employers should examine leave policies before this new law takes effect to ensure that the policies are clear as to when employees will be entitled to job-protected leave regardless of their ability to obtain pay for such leave.

This was originally published on Fisher & Phillips’ Legal AlertsThis Legal Alert is intended to provide an overview of an important new law. It is not intended to be, nor should it be construed as, legal advice for any particular fact situation.

Jim McDonald is managing partner of the Irvine office and a partner in the Los Angeles office of the law firm Fisher & Phillips. He is also the firm's marketing partner and chair of the firm's Development Committee. Jim's practice especially focuses on executive terminations, workplace harassment and discrimination claims, the Americans with Disabilities Act, mental health issues in the workplace, and trade secrets and unfair competition matters. Contact him at jmcdonald@laborlawyers.com.

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