Is California’s “Paid Family Leave” a Protected Leave of Absence?

Employers are sometimes uncertain how to properly respond to an employee’s request for Paid Family Leave because the name is somewhat misleading. Some unpaid “leaves of absence” (for example for medical conditions or family emergencies) are legally “protected,” meaning the employer must accept the eligible employee back to the same (or comparable) job position at the same (or comparable) pay rate. See, e.g., California “New Parent Leave Act” Impacts Small Business (December, 2017).

However, California’s Paid Family Leave (PFL) is not an additional, stand-alone protected leave of absence. Rather, it is a temporary disability program administered under the state’s  Employment Development Department (EDD) to provide partial wage replacement benefits when a person must be off work in certain circumstances.

To qualify for PFL benefits of up to six weeks partial pay in a 12-month period, the employee must need time off from work to care for a seriously ill family member or to bond with a new child; be covered by State Disability Insurance; have earned at least $300 in the past five to 18 months; and submit the PFL claim to EDD within a specified time period.

If an employee applies for PFL benefits while concurrently on authorized and permitted leave under California’s Pregnancy Disability Leave (PDL), California’s New Parent Leave Act, the Federal Family and Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA), then the employer must provide job protection as legally required under any such leave law(s).

If, however, the employee qualifies to receive PFL benefits (i.e., to care for a seriously ill family member or for baby-bonding) but is not covered by any protected leave of absence (e.g., if the company has less than five employees and is therefore not required to provide any of the above-mentioned protected leaves), then the employer does not have to grant the requested time off or guarantee job reinstatement afterwards. In those circumstances, the company should base its decision to grant the requested time off on its internal policies, previous practices and, perhaps the most basic consideration, common sense.

All California employers regardless of size must comply with all PFL requirements, including filing applicable PFL forms with the EDD. When the PFL begins, employers must proceed with any payroll deductions according to the EDD’s rates and provide the employee with a Notice as to Change in Relationship.

Employers must distribute a mandatory PFL information brochure (DE 2511) to all new hires and any worker commencing such time off work. The employer must also post this information (DE 1857A) in the workplace where the employees can read it easily. To download the most current notices and posters, visit the EDD’s website. See, Changes to California Paid Family Pamphlets (July, 2015).

As state and federal leave and wage benefit regulations are complex and often overlapping, employers should have well-written, standardly-implemented policies and consult with an attorney as needed when faced with an employee requesting PFL.

See also:

• California Family Rights Act New Regulations (July, 2015)
• Requiring Use of Paid Vacations for Unpaid Leaves (August, 2012)

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

August 3, 2018