Who is Covered by the Current Law?

Under the current law, employers with fewer than 50 employees within a 75-mile radius were not required to provide family or medical leave to their employees. Likewise, employers with fewer than 30 employees within a 75-mile radius were not required to provide baby-bonding leave under the New Parent Leave Act. The employer size requirements left many employees without any job-protected leave to care for their own medical conditions, their family members’ medical conditions, or the birth or adoption of a new child.

Who Will Be Covered by the New Law?

In January, if your employer has five or more employees and you are otherwise eligible, your employer is required to provide 12 workweeks of unpaid job-protected leave during any 12-month period for reasons covered by the law. During this unpaid leave, employers will be required to pay for and maintain the employee’s group health plan for the duration of the leave. Job protection means that once an employee returns from their protected leave, he/she must be reinstated to the same or a comparable position. Job protection provides employees with certainty that they will have a job when they return from caring for themselves or their loved ones.

What Changes Will There Be to the Qualifying Reasons for Taking Leave?

As the law currently stands, covered employees are entitled to take medical leave to care for a serious health condition for themselves, their child, a parent, a spouse, or a domestic partner. The new law expands the coverage and allows employees to take leave for the serious health conditions of additional family members including grandparents, grandchildren, and siblings. This is a welcome change that recognizes that families come in a variety of shapes.

Am I Eligible To Take Leave?

To be eligible for the 12 weeks of job protected leave, in addition to working for an employer that has five or more employees, an employee must have been working for the employer for one year or more, and must have worked 1,250 hours or more during the 12 months preceding the leave. Although you must have worked for the employer for a total of 12 months, this can now be 12 nonconsecutive months, as long as you have worked for the employer for 12 months over the course of a seven-year period.

What About Leave for the Birth of a Child, Adoption, or Foster Care Placement?

Currently, eligible employees are also allowed to use their 12 weeks of leave for the birth of a child, or the placement of a child in connection with adoption or foster care of the child by the employee. This coverage will not change. However, there are expanded protections for parents who work for the same company. Under existing law, if both parents worked for the same employer, the employer was only required to provide 12 weeks total to both parents for bonding with a newborn, adopting or foster care placement. The new law will require the employer to provide 12 weeks of leave to each parent.

What if I am covered by both CFRA and FLMA?

The federal Family Medical Leave Act provides 12 weeks of job protected leave to employees who have been employed for one year or more and have worked 1,250 or more hours during the 12 months preceding the leave, and who have worked at a location where there are 50 or more employees within a 75 mile radius. A covered employee can take FMLA leave to care for his/her own serious health condition, or for the serious health condition of the employee’s child, parent, or spouse. Eligible employees can also take the 12 weeks of leave for bonding with a newborn, or for the adoption or foster care placement of a child. Currently, if an employee is covered by both CFRA and FMLA, those two leave run concurrently. So for example, if you take leave to care for a new baby and you are covered by both CFRA and FMLA, you only get 12 weeks of leave total, not 24.

However, with the expansion of the California leave law, there may be circumstances where an employee who is covered by both CFRA and FMLA may be entitled to a total of 24 weeks of job-protected leave. For example, under the new CFRA rules, a covered employee can take 12 weeks to care for a grandchild’s serious health condition. However, grandchildren are not covered by FMLA, so it would not apply. Therefore, if the same employee needed 12 weeks to care for his/her own serious health condition, the employee could take that time under FMLA and have an additional 12 weeks of FMLA leave.

These changes are long overdue and a welcome change to the family leave laws in California!

What does the new law provide?

• 10 Paid Sick Days for full-time workers
  • You receive 100% of your pay (up to $511 per day, up to a total of $5,110) for 10 days if you are quarantined or if you are exhibiting COVID-19 symptoms and are seeking a COVID-19 diagnosis
  • You receive 2/3 of your pay (up to $200 per day, up to a total of $2,000) if you are caring for another individual who is quarantined or because of illness, or your child’s school or child care is closed and you do not have another child care provider
  • If you are a part time employee, you are eligible for the number of hours of leave that you work on average over a two week period

• 12 Weeks Paid Family Leave
  • Full-time employees are eligible for up to 12 weeks of leave at 40 hours per week. During that time, eligible employees will receive 2/3 of their pay (up to $200 per day and $10,000 in the aggregate) where the employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
  • If you are a part-time employee, you are eligible for leave for the number of hours that you are normally scheduled to work over that period.
  • The first two weeks can be unpaid, or dovetailed with the paid sick days described above to cover the gap.
  • This provision is only applicable if you have been employed for at least 30 calendar days

Who is Covered?

• Public agencies, including federal, state and local agencies
• Private employers with under 500 employees
  • Employer provide the pay and can get a credit or refund through payroll taxes
• All employees of covered employers are eligible for two weeks of paid sick leave, but you must have been employed for at least 30 days to be eligible for the additional 10 weeks of paid family leave.
• Exceptions?
  • Under the law, the Secretary of Labor can exempt employers with 50 or fewer employees from the leave due to school closings or child care unavailability if the viability of the business is compromised. However, the process for obtaining an exemption is unclear but guidance is expected in April 2020.
  • An employer or the Department of Labor can also exempt healthcare providers and emergency responders

If I Take the Child Care Leave, Does My Employer Have to Reinstate Me?

The Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) were the main leave laws applicable to California employees prior to the COVID-19 pandemic. Under those laws, if you take protected leave, your employer is required to reinstate you to you original position or an equivalent one when you return to work. Under the Families First Coronavirus Response Act, there is a possibility that your employer does not have to return you to your same job if your employer employs fewer than 25 employees.

When Does This Start?

• The provisions go into effect April 2, 2020 (or sooner). The protections end December 31, 2020.

What if I Have Other Sick Leave Available To Me?

Your employer may not require you to use other paid leave before the paid sick leave provided in the Families First Coronavirus Act.

Can My Employer Retaliate Against Me for Taking Sick Leave?

The law provides that it is illegal for an employer to discharge, discipline or discriminate against any employer who takes the sick leave provided by the Act.

Changes to the law are happening on a daily basis in response to COVID-19. We will continue to post updates, but if you have questions about your employment situation and would like to speak with an attorney, please contact our offices. Our physical office is closed, but attorneys are available for phone and Zoom consultations.

Sick with or Exposed to COVID-19

In California, the California Family Rights Act (“CFRA”) provide up to 12 weeks of unpaid job protected leave within a 12 month period to care for yourself or your immediate family if they have a serious health condition. A serious health condition includes any illness that causes any period of incapacity requiring absence from work, school, or other regular daily activities for more than 3 consecutive days. To be eligible for CFRA leave, you must have been employed with your employer for 12 months and you must have worked at least 1250 hours in that twelve month period and your employer must employ 50 or more people within a 75 mile radius. While the CFRA does not provide pay, other laws may provide wage replacement, and your employer may also have other benefits and programs that you may be able to utilize during this time.

If you are unable to work because you have been diagnosed with or if you have been exposed to COVID-19 (certified by a medical professional) you can apply for disability insurance which will cover partial wage replacement. Contact your doctor for assistance with a medical certification if you believe you have, or have been exposed to COVID-19. While there is normally a one-week unpaid waiting period that period has been waived under the Governor’s Executive Order. EDD Website

If you have paid sick leave available, your employer must provide the leave and compensate you under the California paid sick leave laws. You may use sick leave for absences due to your own illness or the care of a family member. California Department of Labor Standards Enforcement

Caregiving

As described above, you may be entitled to job-protected leave if you are caring for an immediate family member who has COVID-19 under the California Family Rights Act. (See above.) CFRA is unpaid leave so below are some options on obtaining wage replacement if you are caring for a family member.

If you are unable to work because you are caring for an ill or quarantined family member (child, parent parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner) with COVID-19 (certified by a medical professional) you can file a Paid Family Leave (PFL) claim. PFL provides for six weeks of benefits to eligible workers. EDD Website

With lots of schools closing, many parents are unable to work because they need to care for their children. If this is the case, you may be entitled to unemployment insurance benefits. However, there are eligibility requirements including whether you have any other care options and/or if you can continue working your normal hours remotely. You should contact an EDD representative to determine eligibility. EDD Website

If you work at a worksite with 25 or more employees, you may also be entitled to 40 hours of leave per year for school-related emergencies, including the closure of school or daycare by civil authorities. Whether the leave is paid or unpaid depends on the employer’s policies. You may be required to use your vacation or paid time off before you are allowed to take unpaid leave but the employer cannot require you to use paid sick leave. DLSE Website Reduced Work Hours

If your employer has reduced your hours or shut down operations due to COVID-19 you can file a claim for unemployment insurance, which provides wage replacement benefits. This is true for workers who have lost their job, or who have had their hours reduced through no fault of their own. Again, the normal one-week unpaid waiting period is waived. EDD Website

Other Wage Replacement

If you do not have any sick leave available, or if you do not have enough available to cover the amount of time you are out of work, you can use any other leave that is available to you based on your employer’s policies. For example, you may have vacation or paid time off that you may utilize. DLSE Website

If you are in a union, you may also be eligible for other kinds of compensation. You should check your union’s website, and/or with your union representative.

Discrimination & Retaliation

The question of what will happen if your employer discriminates against you or retaliates against you for having COVID-19 does not have a clear answer. Under California law, an employer cannot discriminate against you because you have, or the employer perceives you as having any physical disability, mental disability, and/or medical condition. However, the Fair Employment and Housing Act does not cover “mild” conditions that have little or no residual effect- including things like colds, seasonal flu, and minor or nonchronic gastrointestinal disorders. Because COVID-19 is a novel virus, and the impact is different for different people, whether or not it will be considered a disability under the Fair Employment and Housing Act will likely depend on how the virus impacts you.

Because this virus originated in China, we have heard some reports of discrimination against people based on their national origin, race, and ethnicity. Discrimination on these bases is prohibited by both California and federal law. If you believe you have been discriminated against based on your national origin, race, and/or ethnicity, contact our office so we can help evaluate any clams you may have.

It is illegal for an employer to interfere with any eligible employee’s right to take leave under the California Family Rights Act or discriminating or retaliating against an employee for taking a leave. If you are eligible for leave, and are discouraged or prohibited from taking it, and/or if you are retaliated against after taking leave, please call our office so we can discuss any claims you may have.

The state of California, as well as cities and counties, are continuing to put out updated information and recommendations so be sure to check the California and local authorities for updates. Other resources you may wish to consult are:

• https://www.cdc.gov/
• https://www.dir.ca.gov/dlse/
• https://www.dir.ca.gov/dosh/

Although California has had basic “lactation accommodation” requirements since 2002, earlier this month, the legislature enacted an amendment to the Labor Code to provide lactation rights, similar to those enacted in San Francisco, to employees throughout the state. The changes to the law provide that a lactating employee is permitted a “reasonable amount” of break time to express breast milk for her child, each time she needs to do so, as well as a private room to express breast milk.

Even prior to these amendments, employers were supposed to provide a room other than the bathroom for an employee to express breast milk. The changes to the law reiterate that the room shall not be the bathroom and also sets forth several additional requirements including that the room must: (1) be safe, clean, and free of hazardous materials, (2) contain a surface to place a pump and personal items, (3) have a place to sit, and (4) have access to electricity or alternative devices (i.e. extension cords or charging stations). In addition, an employer must provide a sink and refrigerator (or other “cooling device” if a refrigerator cannot be provided) for storing breast milk.

Like the San Francisco ordinance, the new lactation law prohibits an employer from discriminating against or retaliating against an employee who exercises her rights under the law. It also provides for enforcement by the California Labor Commissioner, who may issue citations and impose civil penalties of $100 per day for each day that an employee is denied reasonable break time or adequate space to express milk. In addition, if an employer denies reasonable break time or adequate space to pump, that denial will be deemed a violation of the wage and hour law. Employers must also develop and implement policies regarding lactation accommodations.

It is important to note that employers with fewer than 50 employees may be exempt from the requirements of the new law if they can demonstrate that a requirement would impose an undue hardship by causing the employer significant difficulty or expense. However, we hope the enforcing authorities scrutinizes any claims of undue hardship carefully.

The new law goes in to effect on January 1, 2020 and is an important step toward gender equity in the workplace. Providing sufficient time, and safe and sanitary location for mothers to express breast milk is a significant step to help infants and the mothers health, and will help keep more women in the workforce.

Jean Krasilnikoff

Although the most obvious effect of Hollingsworth v. Perry is that same-sex couples once again have the right to get married in California, many same-sex couples are now wondering how their rights, if they choose to get married, will be impacted with respect to their employment. One of the many benefits same-sex spouses are now entitled to is family leave under the federal Family Medical Leave Act (“FMLA”).

In U.S. v. Windsor, the Supreme Court struck down a provision of DOMA that defined the term “spouse” as only a person of the opposite sex who is a husband or wife, and defined “marriage” as a legal union between a man and a woman. There are over 1,000 federal statutes that use the term “spouse,” and among them is the FMLA which provides up to twelve weeks per year of job-protected unpaid leave for covered employees. Prior to the U.S. v. Windsor decision, same-sex spouses could not take FMLA leave to care for each other because they were excluded from coverage by the opposite-sex definition of spouse in DOMA. Now, however, same-sex spouses are entitled to coverage under the FMLA and may take leave to care for their spouse with a serious health condition. Unfortunately, however, this decision does not have an impact on couples in recognized domestic partnerships or civil unions which means, same-sex couples who are not married are still without FMLA rights.

In California, even before the Supreme Court’s recent decisions, the California Family Rights Act (a state law substantially similar to the FMLA) gave covered employees the right to take leave to care for a registered domestic partner or same-sex spouse. While same-sex spouses in California have rights under CFRA, the problem for many same-sex couples in recent years has been the moratorium on same-sex marriages. Although some 18,000 same-sex couples got married in 2008 during the brief period when California was conducting same-sex marriages, for the past four and a half years, no same-sex couples have been legally married in California. This means that same-sex couples who were not legally married or were not registered domestic partners were not covered by the CFRA leave protections. The good news under the CFRA then, is not that the definition of “spouse” has changed but that fact that same-sex couples can now become spouses if they so choose. Once married, a same-sex couple is entitled to the same protections as an opposite-sex couple under CFRA.

In addition to providing leave to covered employees, both the FMLA and CFRA have anti-retaliation provisions which prohibit an employer from punishing employees for exercising their rights under either of these two laws. Same-sex spouses who are denied or discouraged from taking leave under the FMLA or CFRA will now have recourse against their employers and have stronger protections in the workplace. This makes the laws against sexual orientation discrimination stronger than they were before.

July 19, 2013 Siegel LeWitter Malkani

Mr. Olofsson worked as a driver for Mission Linen Supply. His parents lived in Sweden and he had previously received time off to visit his parents in Sweden. When he learned his mother was scheduled for back surgery, he asked for seven weeks off to return to Sweden and care for her. He made his request approximately one month before his leave was to begin.

In response, the company acted like he would receive his family leave after he submitted the right paperwork and everything was squared away. He was assigned to train a temporary employee to cover for him while he was out.

Three days before his leave was to start – with his mother scheduled for surgery in Sweden – Mission Linen all of a sudden told him that he was not eligible for family leave because he lacked the requisite 1250 hours of work in a year. No one had even suggested to him that he was short on hours, and there was no reason the company couldn’t have told him this earlier. Indeed, the law requires that the employer determine whether or not the employees have met the hours requirement “within a reasonable amount of time”. And state law defines this as 10 days, a standard clearly breached by Mission Linen.

Since Olofsson wasn’t eligible for family leave, he sued his employer for wrongful termination in violation of public policy and estoppel. Finding for Olofsson under one of these theories is the least the Court could do – but it didn’t.

The Court held that Mission Linen did not misrepresent – verbally or by its actions – that his leave was approved. The Court of Appeals here relied upon the trial court’s fact finding on this issue, and thus this case should not be read to establish a blanket bar against an estoppel claim where an employer leads an employee to believe that he is entitled to family leave. The Court went off on facts that could be its version of balancing the equities in an estoppel case. Mr. Olofsson didn’t submit his paperwork in the most speedy manner himself, and the paperwork he did submit had to be checked out.

The Court also found, in a somewhat disingenuous manner, that the employer’s duty to respond to the employee’s leave request in 10 days was met, even though the response wasn’t a clear “yes” or “no”.

What happened to the public policy claim isn’t clear from the opinion, but it couldn’t have been anything good for Olofsson.

Justice wasn’t served in this case where an employee lost his job because his employer put him in a tough spot – unfairly forcing him to choose between his mom and his income. Employers should do better, and so should the courts.

April 26, 2013 Jody I. LeWitter

When Toyota fired Mr. Richey, Mr. Richey evoked his rights under a mandatory arbitration agreement that Toyota required that he sign as a condition of his employment. After an 11 day hearing, the arbitrator ruled against Mr. Richey on his interference claim, i.e. his claim that Toyota interfered with or denied his right to family leave under the California Family Rights Act (CFRA) and the federal Family Medical Leave Act (FMLA). The arbitrator held that the employer was not liable because it terminated Mr. Richey’s employment because it honestly, but mistakenly, believed he misused his family leave.

Mr. Richey moved to vacate the arbitrator’s award, noting two things: (1) under both state and federal law, an honest mistake based on the employer’s state of mind is not a defense, and; (2) an arbitrator’s error of law that results in a denial of a party’s unwaivable statuatory right (in this instance his right to family leave) exceeds the arbitrator’s power and should be vacated.

The trial court ruled against Mr. Richey, but he didn’t give up, appealing to the California Court of Appeals, which agreed with Mr. Richey – explaining at length that an interference with family leave claim does not require that an employee prove that his or her supervisor had a discriminatory state of mind, like other discrimination claims. Indeed, interference claims are unique; if an employer wrongly denies family leave, it doesn’t matter if the employer was mistaken or honest or didn’t harbor a discriminatory motive. An employee is entitled to his or her family leave, and the employer must simply understand and follow the law. This is a very important point for all employees and the employer to understand.

The Court of Appeals also delved into the issue of when and whether to overturn an arbitrator’s award. While overturning this award, the Court was careful to note that not every arbitrator’s mistake of fact or law warrants the overturning of an arbitrator’s award. However, when the ruling results in the denial of an employee’s non-waivable statuatory rights created by FEHA, the arbitrator’s award exceeded the arbitrator’s power and should be vacated. This is an important door to keep open for employees. Although other cases have made this point before (see, for example, Pearson Dental Supplies, Inc. v. Superior Court, 48 Cal.4th 665 (2010)), it is important that the Courts reiterate this point so that employees – who may be compelled to arbitrate a claim under the Fair Employment and Housing Act or other civil rights statutes – understand that arbitration may not be their last stop on the road to seeking justice in the legal system.

Jody I. LeWitter April 2, 2013

Hibbs looked at whether the Family Medical Leave Act (FMLA) applied to and protected state employees and held that it did. The facts in Hibbs involved an employee taking family leave to care for a family member with a serious illness. The Supreme Court held that Congress, when passing the FMLA, intended to let a state worker sue its employer in federal court under FMLA (i.e., it meant to abrogate the Eleventh Amendment ban against suing a state in federal court.) In other words, state employees should be entitled to a family leave just like everyone else.

One would think that Coleman – examining basically the same question – would come out the same. Not so. In Coleman, the Supreme Court held that if the family leave is for the state worker’s own serious health condition, Congress didn’t intend to let the state worker sue. So in Coleman, the Supreme Court says state workers don’t get the same rights to family leave as does everyone else.

According to the U.S. Supreme Court, it is okay to take a family leave to care for a family member but not for yourself. With a family member, perhaps you can find someone else to care for him or her, but for yourself – well – you’re just out of luck.

I don’t want to leave anyone interested in the Court’s rationale for distinguishing the two situations without further explanation. The Court held that since caring for family is seen as – and primarily is – women’s work, it would constitute sex discrimination and that is why the state should allow a state worker to bring a claim. As to caring for oneself, the Court came up with a series of justifications that could provoke eye rolling. Suffice it to say the Court just didn’t want to allow the claim.

My conclusion is one I reach over and over again when examining federal statutes: thank goodness the state of California has its own law to protect employees – here, the California Family Rights Act. Don’t forget to use it – state employees and all!

Jody LeWitter August 27, 2012

This case was tried in federal district court in Oregon on both a FMLA and a state family leave claim under Oregon law. Regarding the FMLA claim, Ms. Sanders asserted that it was the employer’s burden to prove that she was denied reinstatement for a legitimate reason. The district court disagreed, and instructed the jury that it was the employee’s burden of proof. Thankfully, the Ninth Circuit reversed, agreeing with Ms. Sanders, and establishing the important precedent that the employer bears the burden of proof on its claim that it has a reason not to return an employee back to work after a family leave. Employees in California also have the protection of CFRA and CFRA itself indicates that the employer must “guarantee” reinstatement. Gov. Code Section 12945(a) and 2 Cal. C. Regs. Section 7297.2(a), (c). Although this doesn’t address the burden of proof issue, presumably the courts will interpret CFRA the same as FMLA for this issue.

Who bears the burden of proof in any case and on any issue is often an unglamorous but exceedingly critical point. An employee has the right to reinstatement after a family leave. This is an important and fundamental right. Forcing an employee to disprove the employer’s own assertion that there was good reason to violate the right to return to work after a FMLA leave would have turned this important right on its head. The Ninth Circuit’s family friendly ruling, making the employer prove its case, was the only sensible solution.

Jody LeWitter April 23, 2011