Leaves of Absence
Medical and other protected leaves of absence from work lead to many employer’s violating employee rights. Both California and Federal law have specific protections for workers who need to take time off from work to tend to their own medical condition and even the medical conditions of close family members. The following is a summary of the protections afforded workers in the Golden State related to time off for medical or other protected reasons. Generally speaking, these can be categorized as follows:Leaves Due to Employee Illness or Injury, Pregnancy or Disability
- The Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601-2619, is a federal law that was enacted to protect your job in the event that you need to take time off work due to a serious injury or illness. In general, it applies to private employers with 50 or more employees working within 75 miles of each other. Employees who have worked at least 1250 hours in the prior 12 months are eligible to take 12 weeks off work due to the employee’s “serious health condition” (can be an illness or injury) that makes employee unable to perform their essential job functions. The leave does not have to be paid but, can be if the employee has vacation time, sick time or personal time off (“PTO”). At the end of this 12 week leave, employees are entitled to return to their same position at their same rate of pay. Employers may require a medical certification of any “serious health condition” (defined as a condition requiring “inpatient care in a hospital, hospice or residential care facility”; or one that requires “continuing treatment by a health care provider.”)
- The California Family Rights Act (“CFRA”), CA Govt. Code §12945.2, mirrors the FMLA and actually provides some additional protections. It has the same basic requirements and allowances as the FMLA but, has additional privacy protections such as not allowing employees to identify the “serious health condition” in their medical certification and not requiring disclosure of a diagnosis by the medical professional.
- The Pregnancy Discrimination Act (“PDA”), 42 U.S.C. §2000e(k), expanded the rights under Title VII of the Federal Civil Rights Act to provide that “discrimination on the basis of sex,” specifically includes discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” Therefore, it is unlawful for any employer to treat pregnancy or medical conditions or complications related to being pregnant any differently than any other disability. This includes allowing for leaves of absence for such conditions as a reasonable accommodation.
- Both the Americans With Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA) require leaves of absence if they are reasonable accommodations for a known disability. (For further discussion see Disability Discrimination page ).
- The California Workers Compensation Act, Cal. Labor Code §3200 and following, requires employers to provide medical care and treatment to workers injured on the job and to not retaliate against such workers for asserting their rights to this coverage. This includes allowing workers time off to seek treatment and recover from work-related injuries.
- Both the FMLA and the CFRA discussed above apply not only when the employee has an injury or illness but, also when the worker needs to take time off to care for immediate family members. This includes caring for the serious health condition of a child, spouse or parent and taking time off for the birth of a child and to care for that child.
- In addition, the State of California has recently enacted Paid Family Leave “PFL” (aka Family Temporary Disability Insurance “FTDI”) which provides for payments from the State Disability Fund for wage losses associated with taking time off work to take care of a seriously ill child, spouse, parent or domestic partner if no other family member is ready, willing and able to render the required care. (See Cal. Unemployment Insurance Code §3300 ).
There are a variety of other statutes which require employers to provide time off for specified reasons without penalizing the employee through adverse actions such as demotions, change in job positions or termination of employment. These include the following:
- Military Service 38 U.S.C. §4301
- Jury Duty or Witness Testimony California Labor Code §230
- School Activities Cal. Lab. Code 230.8
- Volunteer Firefighter, Police or Emergency Rescue Service Cal. Lab. Code 230.3 and 230.4
- Alcohol and Drug Rehabilitation CA Labor Code §§1025-1028
- Voting Election Code §14000
- Activities Associated With Being A Victim of Domestic Violence CA Labor Code 230, 230.1
- Activities Associated With Being the Victim of a Crime CA Labor Code 230.2
- Literacy Education Labor Code 1040
When you are sick, disabled, need to care for an immediate relative or need to take time off work for other, legitimate reasons, both California and Federal law protect your legal rights to take the leave and return to the same position and at the same rate of pay. Many employers disregard these rights and deny leave requests or retaliate against employees for taking leave by demotions or even terminations following a leave request. If this happens to you, a zealous legal advocate is necessary to stand up for your rights and obtain lost wages, lost value of benefits and other monetary damages. Steven M. Sweat, APC and our team of lawyers has been assisting employees with these types of claims for two decades. Our initial consultation is always free and we never charge a fee unless and until we recover money for you!
Free California Employment Law Helpline: 866-966-5240.