News & Events - Newsletters
Workplace Wave, July 2003
The following are exerpts from this month's newsletter.
California’s Time Off Laws Present Challenges to HR
[The following article was originally published, with some modifications, in the March/April 2003 edition of "HR West," the NCHRA magazine.]
The phrase, "time off," to most people evokes thoughts of beaches, or at least a bit of relaxation. To human resources professionals, the term evokes mounds of paper, calls to lawyers and more work. Why the disconnect? The California legislature, over time, has amassed a vast array of laws sanctioning time off for employees. The following are some of the frequently asked questions regarding time off laws unique to California:
1. Do the newly enacted Paid Family Leave law (SB 1661) and the Family and Medical Leave Act (FMLA)/California Family Rights Act (CFRA) overlap?
FMLA and CFRA apply to employers with 50 or more employees, providing up to 12 work weeks of unpaid time off for the care of seriously ill family members and new child bonding time, among other reasons. Beginning in July 2004, most California employees will be entitled to Family Temporary Disability Insurance benefits for up to 6 work weeks (regardless of whether they are eligible under FMLA/CFRA). FTDI will also cover time off to care for ill domestic partners, unlike the FMLA/CFRA. The 12-week job protection period under FMLA/CFRA is not extended by or otherwise affected by the receipt of FTDI benefits. The new law also specifically provides that it does not provide any job protection rights. Therefore, there is no mandate that employers with less than 50 employees must hold open a job for an employee who is eligible to receive FTDI benefits.
2. If we don't have a sick leave policy, does the "kin care" law apply to us?
The "kin care" law, also known as AB109 and Labor Code §233, provides that all employers (regardless of the number of employees) who have sick leave policies must allow employees to use up to one-half of their annual allotment for the purpose of caring for an ill family member, which includes a parent, child, spouse or registered domestic partner. If an employer provides no sick leave or has a Paid Time Off program, then this law does not apply. A word of caution: Labeling sick leave as something else will not be sufficient. A paid time off program must, in fact, cover absences due to illness and vacation.
3. How much time off is available to an employee who is a victim of domestic violence?
It depends on why the employee needs the time off. If it is to make a court appearance to obtain a temporary restraining order or injunction to ensure the health, safety, or welfare of the victim or the victim's child, then the employer may not discriminate or otherwise retaliate against the employee for taking the time off. Although there is no particular length of time provided by the statute (found at Labor Code §230(c)), the implication is a reasonable period, during which the employee may use vacation, personal leave or compensatory time off.
Employers with 25 or more employees must provide employees with time off to seek medical attention for injuries caused by domestic violence or sexual assault, to obtain services from a domestic violence shelter, to obtain psychological counseling, to participate in safety planning or to seek relocation. Labor Code §230.1 provides that the time off may not exceed the amount of unpaid leave available under FMLA, such that 12 weeks appears to be the maximum allowable time off for these reasons. The statute does not address exactly how FMLA time and time taken under Labor Code §230.1 inter-relate, nor does it clarify whether an employer with less than 50 employees must provide up to 12 work weeks of leave for these purposes. Should this situation arise, check with your legal counsel.
4. Are we required to track Parental School Leave?
California law prohibits employers with 25 or more employees from discriminating, discharging, or taking other employment action against an employee for taking up to 40 hours each year to participate in school activities or licensed child day care facilities of his or her child. Employees are to use existing vacation, personal leave or compensatory time off unless otherwise agreed by the employer. There is no explicit requirement to track this time off. However, if an employee has an attendance problem for which discipline or termination is imminent, take steps to ensure that none of the absences were for parental school leave. Therefore, setting up a tracking mechanism is preferable.
5. Can a pregnant employee really take 7 months of job-protected time off?
Yes, provided she meets the following criteria. She must have worked for an employer at a location with 50 or more employees (or within a 75-mile radius of such a location) for at least 12 months and have put in actual work time of 1,250 hours in the 12 months preceding the leave of absence. She must also have been medically certified as disabled by pregnancy for four months and have taken 12 weeks of CFRA leave to bond with the new child. This also assumes that the employee and her health care provider submitted all required paperwork and that the employee’s job would not have otherwise been eliminated during the leave period.
6. Can we place limitations on the use of intermittent leave under FMLA/CFRA when the employee is caring for a new child?
Yes. However, the FMLA and CFRA differ so if the employee is in California, apply the CFRA limitation. It provides that the basic minimum duration shall be two weeks. However, an employer is required to grant a request for CFRA leave of less than two week's duration on any two occasions for this purpose. Under the FMLA, this type of leave may be taken intermittently only if the employer agrees.
7. If we have less than 50 employees, are we required to have a Medical Leave of Absence policy?
There is no specific requirement to have a written leave of absence policy. However, various California laws apply to employers with 25 or more employees (e.g., parental school leave, domestic violence leave, and drug/alcohol rehabilitation time) and pregnancy disability leave is required for employers with five or more employees. Furthermore, employees who suffer injuries covered by workers' compensation insurance or who have disabilities covered by the Americans with Disabilities Act or the Fair Employment and Housing Act have certain time off rights. Therefore, most small employers find it advantageous to have a written policy on these issues.
8. How much time off can an employee take who is entering a drug rehabilitation treatment program?
If a company has 25 or more employees, it must provide time off without pay as a reasonable accommodation for any employee who voluntarily enters and participates in a drug or alcohol rehabilitation program. There is an exception if the time off will be an undue hardship. Employers with less than 25 employees may need to provide such time off as a disability accommodation.
Time Off Legal Compliance Tips
Given the ever-changing state of time off and leaves of absence legal issues, it is crucial for Human Resources to implement a compliance program. Some components of such a program include:
1. Annually review time off and leave of absence policies and update according to any recent legal or company changes.
2. Audit internal HR processes.
A. Is there adequate interface between the leave of absence administration, benefits continuation, payroll and return to work functions?
B. Are those responsible for administering time off and leaves of absence providing consistent and accurate information to employees and managers?
3. Reevaluate the effectiveness of time off policies.
A. Are there employee relations or morale issues that arise from time off issues?
B. Do managers find that the time off policies negatively impact productivity?
C. Are the time off policies in conflict with attendance guidelines?
4. Conduct training on legal compliance issues.