Family & Medical Leave Act
Under the California Fair Employment and Housing Act (FEHA), employees are entitled to take leave on account of their own medical problems or those of a family members. This is referred to as Family Care Leave.
Employees also have a right to family and medical leave under the Federal Family Medical Leave Act (FMLA). Employees' rights under the California law are the same or better than under the Federal law.
Under California law employees have the right to take medical leave for themselves or to care for family members. To be eligible for leave, the following requirements must be met:
- the employee must have been employed by that employer for over 12 months
- the employee must have worked at least 1,250 hours in the last 12 months
- the employer must have at least 50 employees within a 75 mile radius of the location where the employee who wants leave works
If these conditions are met, the employee is entitled to take up to a total of 12 workweeks off for family care or medical leave in any twelve month period. The employer does not have to pay the employee's salary during this time.
The "family members" that an employee may take leave to care for include parents, spouses, and children. Children under eighteen who work cannot take leave to care for their parents, and parents cannot take leave to care for children who are over eighteen.
Leave Because of Pregnancy, Adoption, and Foster Care
Both mothers and fathers can take a family care leave to care for a new child. The child does not have to be sick; the leave just has to be because of the child's birth.
Employees can also take leave because they have just adopted a child or taken one into foster care.
Vacation and Sick Pay
During the leave, the employee or the employer may decide that accrued vacation time shall be used to pay the employee during the leave. If the leave is taken because of the employee's own illness, sick pay can be used to pay the employee during that period.
Employers do not have to let employees use accrued sick days to get pay when they are taking a leave to care for a sick family member, or because of a new child.
Medical Benefits During Leave
During the leave, the employer must continue to pay for the employee's group health plan, if the employee already was a member of one through the employer.
This means that if the employee has employer health insurance, the employer must continue to pay for the health insurance during the leave.
During the leave, the employee also has the right to continue to participate in other benefits, like disability insurance. However, the employer does not have to continue to pay into retirement and pension plans during the time of the leave. During that time, employees may make their own contributions to those plans.
Notice to the Employer
If the employee can reasonably foresee taking the leave, he or she must give the employer advance notice.
Proof of Medical Condition
If the employee is taking leave for because of illness, the employee is allowed to require to employee to provide proof of the illness. This proof needs to come from the doctor or other health care provide, and needs to include the following:
- the date on which the serious health condition commenced
- the probable duration of the condition
If the leave is because of the employee's own illness, it must include:
- a statement that, due to the serious health condition, the employee is unable to perform the function of his or her position
If the leave is so the employee can care for a family member, the doctor's statement must include:
- an estimate of the amount of time that the health care provider believes the employee needs to care for the individual requiring the care
- a statement that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care
If additional leave is required when the initial period expires, the employer can ask for an updated certification.
It is illegal for an employer to fire or refuse to hire an employee because the employee has asked for or taken family care or medical leave.
Overlap with Federal FMLA
As mentioned above, employees are also entitled to 12 weeks of leave under the Federal Law. However, the time must run concurrently. In other words, the employee does NOT get 24 weeks total.