What All California Employers Need to Know about the FMLA, Family Leave Law, and Sick Leave Laws

Eligibility for Family and Medical Leave

Both California and federal law require Family Care and Medical Leave for employers with over 50 employees at one location or within a 75-mile radius of each other. That law also requires that the employee be provided with a written policy setting forth the employee's right to this leave.To be eligible for this leave, an employee must meet the following criteria:

The employee must be employed by the employer for at least one (1) year of aggregate employment;The employee must have worked for the employer for at least 1250 hours (excluding vacations, holidays, sick leave and leaves of absence) during the immediately preceding 12-month period; andThe employee must be employed at a location where fifty (50) of the employer's workers are employed or work within seventy-five (75) miles of each other.

Reasons for Family and Medical Leave

Leave under this policy is available for the following reasons:

Child Bonding. Due to the birth of the employee's child or placement of a child with the employee by adoption or for foster care.

Serious Health Conditions. To care for a child, spouse or parent with a serious health condition, or on account of the employee's own serious health condition, including work-related injuries or illness. For purposes of this policy, a parent can mean someone who stands in loco parentis to the employee and a child can be someone for whom the employee stands in loco parentis.

Service member's Serious Health Condition. To care for a current member of the Armed Forces, or a member of the Armed Forces who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list. The employee must be the spouse, son, daughter, parent, or next of kin of a member of the United States Armed Forces. For the purposes of this policy, a parent can mean someone who stands in loco parentis to the employee and a child can be someone for whom the employee stands in loco parentis.Qualifying Exigency Involving a Service member.

To address a "qualifying exigency" as defined below.

Qualifying Exigencies

Federal law describes many circumstances that may be considered a "qualifying exigency." If there is any question on whether something is a qualifying exigency, the employer will use only such circumstances as are required by law and nothing in this policy should be considered to have granted any rights to leave that are not required by law. In any event, all qualifying exigencies require that the military member be the employee's spouse, son, daughter, or parent on active duty or call to active duty status. Military members covered by this policy also include the employee's biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on active duty or call to active duty status, and who is of any age. For purposes of this policy, a "parent" can mean someone who stands in loco parentis to the employee and a "child," "son" or "daughter" can be someone for whom the employee stands in loco parentis.

A qualifying exigency is, as defined by applicable law:Short-Notice Deployment;Military Events and Related Activities;Childcare and School Activities;Financial and Legal Arrangements;Counseling;Rest and Recuperation;Post-Deployment Activities; andAdditional Activities as agreed by the employer and employee.Length of LeaveLeave time due to child bonding, a serious health condition (other than a servicemember's serious health condition), or a qualifying exigency may not exceed twelve (12) weeks off in any 12-month period, commencing with the first day on which any family and medical care leave is taken.Leave time due to a "servicemember's serious health condition" may not exceed twenty-six (26) weeks off in any 12-month period, commencing with the first day on which any such leave is taken. A family and medical care leave may be taken in addition to any leave of absence that an employee may be entitled to on account of a disability resulting from pregnancy disability.Thus, for example, an eligible employee may, during the single 12-month period take sixteen (16) weeks of leave to care for a covered servicemember and ten (10) weeks of leave to care for a newborn child. However, the employee may not take more than twelve (12) weeks of leave to care for the newborn child during the single 12-month period even if the employee takes fewer than fourteen (14) weeks of FMLA leave to care for a covered servicemember. Each instance of leave time due to a short-notice "qualifying exigency" may not exceed seven (7) calendar days off. Each instance of leave time due to a rest and relaxation qualifying exigency may not exceed five (5) calendar days.Each instance of leave time due to any additional activity to which the employer and employee agree is a qualifying exigency may not exceed the time agreed to by the employer and employee. A family and medical care leave may be taken in addition to any leave of absence to which an employee may be entitled on account of a disability resulting from pregnancy disability. No more than a combined total of twenty-six (26) weeks of family and medical care leave in a 12-month period will be granted to a husband and wife who both work for the employer during which the leave is taken on account of the birth of a child, for placement of a child by adoption or for foster care, to care for a child, spouse or parent with a serious health condition, or to care for a covered servicemember with a serious injury or illness. If the leave is required due to a planned medical treatment, the employee must make a reasonable effort to schedule the treatment to avoid disruption of the employer's operations.

Use of Vacation or Sick Leave

An employee who takes a family or medical care leave must use accrued vacation pay. An employee who takes a family or medical care leave on account of his or her own serious medical condition must use accrued sick leave pay. If an employee is receiving benefits from a disability leave plan, such as Paid Family Leave, state disability, or a disability benefit offered by the employer (such as Aflac or a long-term disability plan), the employer will not require an employee taking a FMLA leave to use his/her sick and/or vacation time; however, the employee may use sick and/or vacation time to supplement the employee's disability benefits if :(1) the employee requests the use of the paid leave; and(2) the disability leave plan does not provide the employee with complete wage replacement (e.g. if the plan only pays the employee 2/3 of his/her wages).