Attorney John Mlnarik
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Understanding Family Leave
The birth of a child can be an exciting time for new parents, but it can also be unpredictable. This new responsibility coupled with unexpected emergencies may require new parents to take time off work. Many people in the workforce may mistakenly believe that they are putting their careers in jeopardy if they take time off for family emergencies or to care for a newborn. However, California offers special protections for employees who qualify for family and medical leave.
The California Family Rights Act (CFRA) is partially based on the federal Family and Medical Leave Act (FMLA), with some provisions that overlap and some provisions that provide employees with rights beyond those provided by FMLA. At their core, both acts allow parents to bond with their new child, or children, after birth without risking termination by their employer.
For both the FMLA and the CFRA, medical leave laws cover private employers with 50 or more employees on the payroll. These employees must have worked for 20 or more calendar weeks in the current calendar year or the preceding calendar year.
These acts also cover all public employers, regardless of their number of employees. This includes employees on the payroll who received no compensation, part-time employees, commissioned employees and employees on leave who are expected to return to active employment. Employees on layoff do not count.
For both acts, an employee must have worked for a covered employer for at least 12 months and for 1,250 hours in the 12 months before the start of the leave. The employee must also work at a worksite with 50 or more employees. This worksite must be some sort of office space or centralized location where the employer directs employee tasks. The employees must also be working within 75 miles of that site.
Terms of Leave
Employees, both private and public, may receive up to 12-months unpaid leave for pregnancy, childbirth, or adoption, or care for a newborn if they qualify for FMLA or CFRA leave. There is no requirement that spouses share leave. In addition, leave can be broken up intermittently. This means one spouse may take two weeks off to care for the child, and then go back to work, then take another ten weeks at a later time.
Employees can substitute paid leave for unpaid leave if they elect to do so. For example, if an employee has two weeks of vacation every year, that employee can take two weeks of paid time off to take care of the child by using his or her allotted vacation time.
Under the CFRA, employers are required to provide a female employee affected by pregnancy, childbirth, or related medical condition the same benefits as provided to employees on temporary disability for a period of six weeks or less. However, the employee must contribute to State Disability Insurance to receive this benefit. If the employee does contribute to SDI, she can receive 55 percent of her pay for six weeks through Disability Insurance or through paid family leave.
San Francisco’s Family Leave Ordinance
In April 2016, San Francisco passed the Paid Parental Leave Ordinance. Under this ordinance, if an employee qualifies for paid leave to care for a newborn under the CFRA, the employer is required to supplement those benefits so that the employee receives 100 percent of his or her normal weekly pay.
This new ordinance applies to employees who work for a business or nonprofit with 50 or more workers. The employee count includes full- and part-time workers, as well as employees not based in San Francisco. On July 1, the law will apply to employers with 35 or more workers, and on Jan. 1, 2018, it will extend to employers with 20 or more workers. Employees of organizations with fewer than 20 workers won’t benefit.
The employee must work at the organization for at least 180 days. The employee can be full-time, part-time or temporary, but not an independent contractor. The employee has to work a minimum of 8 hours a week in San Francisco, with 40 percent of his or her total work hours in San Francisco. Like the FMLA and CFRA’s leave, this paid leave may be taken intermittently.
However, there is a cap on the total amount an employer is required to pay. The total amount of money an employee can receive from the state plus the employer is $2,133 per week. That means people who make $110,916 or less a year will receive full paid leave during those six weeks, but those who earn more than that will receive less than full paid leave.
While the birth of a child can be a stressful, the state of California and the city of San Francisco are working to ensure that the financial burden on parents will be minimized. While this does not completely eliminate the stress of parenting, it will remove one of the major hurdles that parents face as they try to bond with their new child.