United States: Accommodating Working Families in California

Even though most companies try to do so voluntarily, California imposes an array of legal obligations on employers to make sure they accommodate employees who are parents. These laws – ranging from time off to attend school activities to accommodation of nursing mothers – often come as a surprise to companies doing business in California, especially those who also have operations out-of-state. In addition to the federal Family and Medical Leave Act, for example, California requires special accommodations of pregnant workers, sick leave to care for family members, and even new rights for domestic partners. Here’s an overview of California’s family-friendly laws.

1. Pregnancy disability leave. California requires all employers with five or more employees (including part-time workers) to grant up to four months of unpaid pregnancy disability leave for the time an employee is disabled by pregnancy or childbirth. Employees are entitled to take the leave only for the time they are actually disabled, and you can require medical verification as long as you also require it for other temporarily disabled employees. The leave can be used either before or after giving birth, and can be taken intermittently when medically necessary. You can require employees to use any accrued sick leave as part of the pregnancy disability leave, and the employee can voluntarily choose to use vacation or other accrued time off if she wishes. If you provide more generous leave benefits to employees with temporary disabilities, you need to provide those same benefits to employees disabled by pregnancy or childbirth.

At the completion of the pregnancy disability leave, you must reinstate the employee to her old job. The only exceptions are if the job was eliminated for legitimate business reasons while the employee was on leave, or if holding the job open would undermine your ability to operate your business efficiently and safely. However, you still must attempt to offer the employee a similar position in terms of pay, location, schedule and duties.

2. Family and Medical Leave. In addition to the federal Family and Medical Leave Act (FMLA), which requires employers with more than 50 employees to grant up to 12 weeks unpaid leave to employees for the birth or adoption of a child or to care for oneself of a family member with a serious health condition, California has its own family and medical leave law. The California Family Rights Act (CFRA) is identical in many respects to FMLA, but has a few significant differences:

• Combining pregnancy and family leave. Although pregnancy disability leave counts as family leave for FMLA purposes, it doesn’t count under CFRA. That means that in California, an employee could conceivably take up to four months pregnancy disability leave, plus another 12 weeks family leave to care for her newborn child, for a total of approximately seven months leave.

• Intermittent leave. In California, employees are entitled to take so-called baby bonding leave on an intermittent basis, even if you don’t agree. In contrast, under federal law, employees may take intermittent leave to care for a new child only with your approval.

Under both federal and state law, only employees who have been employed for at least 12 months and completed 1,250 hours of service are eligible for family leave. Also under both laws, you’re required to reinstate the employee to the same or an equivalent job in terms of pay, benefits and other employment conditions, unless the person would not have remained employed even without the leave (for example, because the job was eliminated) or if the person has been designated in advance as a so-called "key" employee – someone who earns in the top 10% of salaried employees and whose absence would cause "substantial and grievous economic injury" to the employer.

3. Accommodating pregnant employees. In addition to the various leave requirements, California expressly requires employers with five or more employees to accommodate pregnant employees whenever it’s reasonable to do so. Such accommodation could include transfer to a less strenuous job, modifying job duties, or intermittent leave. Be careful about making any paternalistic judgments about what a pregnant employee can or can’t do, however – don’t act unless an employee specifically requests an accommodation. If you’re genuinely concerned about toxic or other dangerous substances in the workplace that might pose a risk to the fetus, make a full disclosure and suggest that the employee raise any concerns with her physician.

In addition, be sensitive to issues of pregnancy discrimination. It’s illegal to refuse to hire, terminate or discipline an employee because she’s pregnant or to otherwise discriminate in terms of pay, benefits, raises, or promotions.

4. Lactation accommodation. A new California law effective January 1, 2002, requires all public and private employers to accommodate employees who wish to express breast milk at work. To comply with the new law, you must provide a reasonable amount of break time and a private location for the employee to express milk. If possible, the break time should run concurrently with the employee’s normal break time. Although the law does not specify exactly what type of space is adequate, it should be in close proximity to the worker’s normal work area and cannot be a toilet stall. There is a $100 penalty for each violation.

5. Sick leave for family members. If you provide paid sick leave to your employees, California law requires that you permit employees to use some of their accrued sick time to care for ill family members. Specifically, employees are entitled to use the amount of sick leave that would be accrued in six months to care for a sick child, parent, spouse or – as of January 1, 2002 – domestic partner. Employers may place the same restrictions on an employee’s ability to take sick leave for an ill family member – such as medical certification requirements – that they place on employees who take sick leave for their own illnesses.

6. Time off for school activities. California employers with 25 or more employees must grant up to eight hours of unpaid leave each month – with a cap of 40 hours per year – to attend their children’s school activities (licensed daycare or preschool through grade 12). Employers may require reasonable advance notice and verification from the school. Parents, legal guardians or grandparents with custody of children are eligible for the leave. In addition, all employers – regardless of size – must grant time off when an employee is requested to appear at school to discuss the suspension of a child.

7. Domestic partners. A new law in effect on January 1, 2002, expands the rights of domestic partners in California, as defined by the new law. The new law allows domestic partners of the same sex of any age or of opposite sexes if both partners are over the age of 62 and meet the eligibility requirements of the Social Security Act to register as domestic partners with the state and receive certain protections afforded by the new law. In addition to the right to take sick leave to care for a domestic partner (see above), domestic partners are now eligible to collect unemployment insurance benefits if they leave a job to relocate with a domestic partner. In addition, group health insurance plans must make domestic partners coverage available to employers who wish to purchase it on the same terms as for other dependents, and tax treatment for withholding purposes must also be the same as for other dependents.

8. Domestic violence victims. California law prohibits employers from terminating or disciplining employees who take time off in order to appear in court as a domestic violence victim. In addition, if you have 25 or more employees, you’re required to grant time off for a domestic violence victim to (a) seek medical attention for injuries caused by domestic violence; (b) seek legal assistance or remedies for domestic violence; (c) obtain services from a domestic violence shelter, program or rape crisis center; (d) obtain psychological counseling related to domestic violence; or (e) participate in safety planning and take other actions to increase safety, such as relocation. Employees are required to provide reasonable advance notice if possible, or provide certification of the reason for the leave after any unscheduled absence. Certification could include a police report, court order or other evidence that the employee appeared in court, or documentation from a medical professional or counselor. This law does not create a right to take more than the 12 weeks of family leave already provided by the federal Family and Medical Leave Act.

© 2002, Miller Law Group

Miller Law Group is a Bay Area law firm that specializes in representing management in all facets of employment litigation and counseling. If you would like to receive copies of our newsletter electronically, please e-mail us at newsletter@millerlawgroup.com.