FMLA, and CFRA, and PDL…oh my!
In California, there are three important leave laws that employers should be aware of: the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and the California Pregnancy Disability Leave Act (PDL).
All of these laws entitle eligible employees to certain job-protected, unpaid leave; however, they have different criteria on (a) eligibility, (b) who is considered a ‘covered’ employer, (c) length of leave, and even (d) reinstatement rights for when an employee returns to work.
Below is an introductory comparison chart to get to know these laws better and see where they overlap and where they differ:
(The above picture of the introductory chart is available as a Word document download at the bottom of this post.)
How Do the Federal and California Laws Interact?
FMLA runs concurrently with CFRA and PDL, which means that the 12-weeks of FMLA time starts to toll as soon as the employer learns that an employee’s leave is FMLA-eligible, even if the employee states that they are taking leave under a different law. Any of the reasons for leave that fall under FMLA, even if they also fall under CFRA or PDL, trigger that usage. So, an employee who uses 12 weeks for the birth of a child under CFRA would have also used up their 12 weeks of FMLA for the same 12-month period.
However, for leave reasons that fall under CFRA but are not available under FMLA, there is the possibility that an employee could be eligible for 24 months of job-protected, unpaid leave within a 12-month period. Employers should familiarize themselves with the reasons for leave to make sure that employees are provided the correct amount of leave.
For pregnant employees in California, PDL time is provided first and once the employee is no longer considered disabled by pregnancy, then they could elect to take up to 12 weeks of bonding time under CFRA (since PDL and CFRA do not run concurrently, like with FMLA). In this scenario, FMLA would still run concurrently during PDL or CFRA time, so this would not be an extra 12 weeks of job-protected, unpaid leave available to that employee.
What About an Employee’s PTO?
Employers are not allowed to require an employee to exhaust paid leave before they can take FMLA, CFRA, or PDL leave. But, an employee can elect, or an employer may require an employee, to substitute some of the unpaid leave with accrued paid leave (e.g., sick leave, PTO, vacation, etc.), if the leave does not violate any laws surrounding the reason for the type of leave.
Under FMLA, the only requirement for using paid leave is to follow the employer’s normal rules for taking leave.[i] Under California law, the use of paid sick leave needs to be for (1) an employee’s or employee’s family member’s diagnosis, care, treatment of, or preventative care for, an existing health condition, or (2) an employee who is a victim of domestic violence, sexual assault, or stalking. [ii] Employers are not required to allow accrued sick leave to be used for any purpose outside of these; but, if they have a stated sick leave policy that does, they must abide by that policy. Use of accrued vacation or PTO is dictated by any policies laid out by the employer, since paid leave benefits outside of sick leave are not legislated by the state.
For example, an employee is taking a leave allowed under FMLA and has accrued three (3) weeks of paid leave in the form of sick days and vacation. The employee can request that those three (3) weeks be paid out during what would typically have been 12 weeks of unpaid FMLA leave, but that paid time would not keep the FMLA time from starting. After the three (3) weeks are paid out, there would still only be nine (9) weeks of unpaid FMLA time remaining. Using accrued paid leave only means that the employee will receive pay during an otherwise unpaid leave.
In the above scenario, as long as the use of paid time followed the employer’s rules for using that time, then the employee could use any combination of paid leave time to cover some of the unpaid FMLA time. Under California law, the use of paid sick leave would need to follow sick leave laws or any expanded benefits offered by an employer in order to be used, and the use of other paid leave benefits would need to follow the employer’s stated policies.
Review leave policies and handbooks to ensure they comply with the various forms of leave afforded to California employees.
Ensure there is a procedure in place for employees to notify employers of the need to take leave.
Consult with legal counsel or Human Resources when assessing which types of leave an employee is entitled to.
[i] Note: the ability for employers to require use of accrued paid leave during FMLA or CFRA is not true when these unpaid leaves intersect with paid disability benefits. Employers should consult with legal counsel regarding when they can require the use of paid leave and when they cannot. [ii] Cal. Lab. Code § 246.5.