It is important for management and owners of small businesses to become familiar with the many laws that allow employees to take time off from work. The key feature of these statutes is job protection – employers are prohibited from firing or taking other negative action against employees who take time off under these provisions.
As we wrote on January 30, 2018, effective January 1, 2018, the Legislature expanded part of the California Family Rights Act’s coverage to include smaller employers. Under this new law, employers with 20 to 49 employees working within a 75-mile radius must grant up to 12 weeks off for an employee to bond with a new baby.
Several other laws also require smaller employers to grant protected time away from work. We summarize these below.
Medical Leaves of Absence
Some medical leave laws, like the federal Family and Medical Leave Act and the California Family Rights Act, apply only to employers with 50 or more employees. However, employers with just five or more employees must provide up to four months of leave to employees disabled by pregnancy, childbirth or related medical condition. Employees need not work a minimum number of hours to qualify. There are comprehensive regulations specifying employer and employee notice, medical certification, and other requirements.
Along the same lines, employers must provide leave as a “reasonable accommodation” for an employee’s disability – including pregnancy disability – if doing so allows the employee to perform the essential functions of the job. For example, if an administrative assistant needs three weeks off to recover from surgery and can then return to work, leave may be a reasonable accommodation. A small employer with limited resources may be able to establish that extended leave will cause an “undue burden” or hardship. However, the burden of proof is on the employer, and not every hardship is “undue.”
The state and several localities within California require employees to provide limited, paid sick leave, not only for their own illness but also for covered relations.
Separately, victims of domestic violence, sexual assault, or stalking are entitled to leave to appear in court or obtain a restraining order. If an employer has 25 or more employees, the employee may also take time for additional reasons, including to obtain medical assistance.
Employers with at least 15 employees may be required to provide paid leave for employees to donate blood marrow or an organ.
Employers with 25 or more employees may be required to grant leave so employees can voluntarily enter a drug or alcohol rehabilitation program.
Other Leaves of Absence
All employers must allow employees to take time off to serve on a jury or as a witness; to serve in the military or attend military training; to vote if unable to do so outside working hours; to serve as an election official on Election Day; to participate in school or day care activities; to attend a portion of the school day when a child is suspended; to attend judicial proceedings if the employee or a family member is a victim of certain crimes; or to serve as a volunteer firefighter, reserve police officer, or emergency rescue personnel.
Employers with 15 or more employees must permit time off to respond to an emergency mission as a member of the Civil Air Patrol.
Employers with 25 or more employees must also grant employees time off to spend time with a spouse or registered domestic partner deployed during a period of military conflict, or to participate in an adult literacy program.
Each of these laws contains specific requirements. Each also protects employees from retaliation or negative treatment for taking leave.
Pay, Benefits, and Other Conditions
The laws summarized above are not uniform with respect to employer coverage or specific protections and benefits. Some allow leave from date of hire; others require employees to qualify by working a minimum amount of time. They also vary in the amount of leave required. Employees are entitled to up to a couple of hours to vote, for example, but up to five years to serve in the military.
Most leave is unpaid. But organ donation and sick leaves include pay provisions. Exempt employees must be paid for jury duty occurring within a partial workweek. Employees often are eligible for continuation of health benefits while on many types of leave. They also may be permitted to use sick leave or other wage-replacement benefits (as is the case for domestic violence leave). Employees also may qualify for state-sponsored wage replacement, such as State Disability Insurance or Paid Family Leave (the latter of which, as we have previously addressed, is not a leave entitlement at all).
Finally, some leave laws impose specific rules about employees’ return to work at the conclusion of leave, such as whether they are entitled to be reinstated to the same job.
How to Meet Leave Obligations
Compliance with all these leave laws is difficult, even for large employers. Some resources are available, however.
Employers must display or distribute prescribed notices about many of the required leave laws. Employers can learn about many leave obligations simply by reading the posters, as well as FAQ’s and other documents furnished by government agencies. Leave policies in a legally compliant employee handbook may be helpful as well.
Small employers also can set up simplified and clear processes to handle leave requests. For example, an optional leave request form that lists various forms of leave requires the employee requesting leave to explain the basis. Management then can focus on the applicable requirements of the particular leave.
Employers should not dismiss unfamiliar leave requests outright, but should use available resources to find out more about leave requirements, especially because laws change, and also may vary from state to state and even by locality.