Written by Brandon Willenberg
I’m not quite sure why California felt it was necessary to effectuate key changes to employment laws in the middle of summer when most of us are trying to break away from work and enjoy our vacations. As we recently discussed here, California’s minimum wage goes up to $9.00/hr starting July 1, 2014, and now California’s Paid Family Leave (PFL) law is making the “family” bigger starting July 1, 2014 as it expands the definition of family member to include grandparents, grandchildren, siblings, and parent-in-laws.
PFL is one of those leaves that doesn’t get much attention as it often sits in the shadow of the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) – it’s like the PFL is “always the bridesmaid and never the bride.” But, if your California employees are asking about leaves to take care of seriously ill family members or to bond with a newborn or a foster or adopted child, then PFL needs to be part of that discussion. PFL is a component of the State Disability Insurance (SDI) program. It provides employees, covered by SDI, up to six weeks of benefits for time off to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child. And starting July 1, 2014, PFL will also include time off to care for grandparents, grandchildren, siblings, and parent-in-laws.
An employer may require the employee to use up to two weeks of vacation or paid time off (PTO) prior to receiving benefits. The first week of vacation or PTO will be applied to the seven-day PFL waiting period. However, employees cannot receive PFL benefits while receiving Disability Insurance, Unemployment Insurance, or Workers’ Compensation benefits that exceed their weekly PFL benefit amount.
So how does PFL work with FMLA and CFRA leaves? Well, get ready to follow the bouncing ball. While each employee’s situation is different, generally, an employee who is entitled to FMLA and CFRA leave must take PFL concurrent with leave taken under those acts. But, note that the definition of family member under the FMLA, CFRA, and PFL differ. For example, an employee can take PFL to take care of his seriously-ill grandfather (starting July 1, 2014), but the FMLA’s definition of family member does not cover grandparents. So employers will first need to figure out which leave would in fact apply to the employee.
Unlike the FMLA and CFRA, PFL does not provide job protection. However, if PFL is being taken concurrently with FMLA and CFRA leaves, the PFL’s lack of job protection is really a non-issue as the FMLA and CFRA do provide job protection. Now, what if the employee is given PFL independent from any other potentially applicable leave, i.e. the FMLA and CFRA do not apply? The employer might think that if the employee doesn’t return after the six weeks of PFL, and because PFL provides no job protection, that it can terminate the employee or transfer them to a different position, maybe even one that pays less. STOP RIGHT THERE. Let’s not jump to any quick decisions. Even though the PFL does not provide job protection, employers still need to be careful about how they handle the employee’s return to the workplace. Denying the employee the opportunity to return to his or her position or changing the employee’s duties after taking PFL could easily be turned into a retaliation claim by the employee, i.e. the employee says “you retaliated against me for taking PFL.” And then the next call you likely make is to someone like me, an employment lawyer, asking me what you should do. So, take some time to think about your options before jumping to termination or some other adverse action when an employee takes PFL and does not make a timely return from that leave. Talk it over with your trusted employment counsel – the same old adage applies, an ounce of prevention is worth a pound of cure.
Enjoy the summer!!!