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Understanding When an Employee Is, and Is Not, Entitled to Time Off
The first step to balancing an employee's request for time off with the needs of your workplace is understanding the leaves to which an employee is, and is not, entitled. 
In this Newsletter, we outline the primary leaves available to California employees and offer tips and tools for understanding and implementing leaves generally.  In the next months, we will provide more detail on understanding and implementing various leaves potentially available to your employees. 
In this Newsletter you will find:
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Coming in our next issues, we continue to create a Sustainable Leaves of Absence system, beginning with family and medical leave.
A List of Mandatory Leaves of Absence for California Employers
An employee's request for time off needs to be considered against the employee's potential legal entitlements.  In the next months, we will provide much more detail on each of these mandatory leaves, including which employers are covered, which employees are covered, what amount of leave is available, when jobs are protected, what benefits apply and how the leaves coordinate with each other.  For now, we wanted to provide you with a quick list of some mandatory leaves of absence.   Stay tuned for details on each of these leaves in the next months' newsletters.
1.     Time off to Care for Your Own or a Family Member's Serious Health Condition or to Bond with a Baby.  The federal Family and Medical Leave Act ("FMLA") and the California Family Rights Act ("CFRA") require “covered employers” to permit “eligible employees”  to take up to twelve weeks' unpaid leave during a “12-month period” for certain specified purposes, including (a) to care for employee’s newborn child or a child placed with employee for adoption/foster care (within one year); (b) to care for employee’s spouse (and in California a domestic partner), child, domestic partner’s child or parent who has a “serious health condition;” or (c) for the employee’s own “serious health condition.”  (Note, under CFRA, pregnancy disability is not a "serious health condition," which means that in California an employee could take pregnancy disability leave and still be eligible for CFRA leave to bond with the baby).  Under the FMLA, "eligible employees" with a spouse, son, daughter, parent or next of kin who are "covered service members" also may take unpaid Military Family or Medical Leaves to address “qualified exigencies” or to care for a covered service member with a serious illness or injury (this Military Caregiver leave may be up to 26 unpaid weeks).  
2.     Leave of Absence for Employees Disabled by Pregnancy.  Under the California Fair Employment and Housing Act ("FEHA"), employers with five or more employees are required to provide employees with a leave of absence for any period of actual disability related to pregnancy for up to four months (88 work days for a full time employee), including intermittent leave as needed/certified by a physician.  Remember, this is not "bonding with baby" leave; this is only for employees disabled by pregnancy.  An employer may also be required to transfer a pregnant employee to another available position if the transfer is "medically advised."
3.     Time Off in Response to a Workplace Injury.  Employees injured in the course and scope of their employment are eligible for leaves under the California Workers Compensation Act.  
4.     Leave of Absence as a Reasonable Accommodation.  Under FEHA and under the Americans with Disabilities Act ("ADA") (which covers employers with 15 or more employees), employers are required to provide employees who are "disabled" with a "reasonable accommodation" that will allow the employee to perform the essential functions of the position.  This accommodation could include a leave of absence, and could be required even where an employee is not entitled to, or has exhausted, a statutory leave.  
5.     Time Off for Members of "Uniformed Services" Called to Active Duty or Training.  The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and the California Military and Veterans Code require that all employers provide up to eighteen months unpaid leave for military service. 
6.     Leave of Absence for Alcohol or Drug Rehabilitation
California employers of all sizes must allow an employee who voluntarily enrolls and participates in an alcohol and drug rehabilitation program to take a leave of absence, so long as that leave is requested in advance of disciplinary action and where the leave does not create an undue hardship for the Company. 
7.     Time Off to Provide Bone Marrow or Organ Donation.  In California, employers with 15 or more employees are required to provide up to 30 days' paid leave in any "one-year period" for organ donation and up to five (5) days paid leave for bone marrow donation.  These leaves are in addition to any leave taken pursuant to FMLA or CFRA.  
8.     Responding to a Child’s Suspension.  California employers of any size must grant an employee who is the parent or guardian of a child unpaid time off from work to attend the child’s school to discuss the child’s possible suspension from school. 
9.     Domestic Violence Leave.  California employers must provide any employee who is a victim of domestic violence with unpaid time away from work to seek any relief, including but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of himself or herself or his or her child.   
10.     Time to Learn to Read.  California employers with 25 or more employees must grant unpaid leave to an employee who reveals a literacy problem where that leave is a reasonable accommodation. 
11.     Time Off With a Spouse on Leave From Deployment.  Employers with 25 or more employees must grant qualified employees up to 10 days unpaid leave during a period in which the employee’s spouse or domestic partner is on leave from deployment into a combat zone with the active duty or reserve military National Guard during a period of military conflict.   
12.    Time Off to Attend School Conferences or Daycare Activities.  Any Company with 25 or more employees must allow employees (parents, guardians, or grandparents having custody) with children in kindergarten or grades 1 -12 or attending a licensed day care facility to take up to 40 hours of unpaid time off per calendar year to attend school activities (up to a maximum of 8 hours in any calendar month).  
13.    Victims of Crime Leave.  Any California employee who is a victim of or the family member of a victim of a violent or serious felony may take unpaid time off from work to attend judicial proceedings related to a crime listed above.
14.    Leave to Volunteer as a Firefighter, Reserve Peace Officer or Emergency Rescue Personnel.   Employees participating as volunteer firefighters, reserve peace officers and emergency rescue personnel may take unpaid time off as necessary to perform their required emergency duties.   
15.    Time Off to Vote.  If an employee must vote during working hours, the employee may take up to two hours of paid leave for the purposes of voting.   
16.     Leave to Serve on a Jury or as a Witness.  Under federal and California law an employer may not terminate an employee for serving on a jury.  In California, an employer may not terminate an employee who is required to serve as a witness in court. 
15 Questions to Ask Yourself When An Employee Requests a Leave of Absence
Certain basic principles apply to the process of considering and granting a leave of absence.  We recommend following this checklist when deciding whether a leave must or should be granted. 
1.     Is Your Company Big Enough to be Covered by the Mandatory Leave Laws?  Certain leaves, like FMLA or CFRA, are only required for companies that have a certain number of employees within a certain radius.  The first question to ask is "are we big enough to be required to provide this employee with the leave that is requested?"
2.    Does this Employee Meet the Conditions Required for the Leave?  Some leaves, like FMLA and CFRA, require that the employee has worked for the Company for a certain period of time and a certain number of hours before they are eligible for the leave.  The Company needs to ask whether this employee meets the threshold requirements. 
3.     Is the Reason for the Leave covered by any Mandatory Leave Laws or Your Policies?  As outlined above, certain employers must give certain employees time off for certain mandated reasons.  If the reason given is not one that is covered by the laws or required by your policies, for example time off to care for a sick friend, then you may not be required to or want to grant the time off. 
4.     If the Leave is Not Required by Law or Policy, Do You Want to Grant It?  In considering this question, you will want to ask questions like: Have we offered this leave before?  Do we want to create a precedent by doing so now?  Offering the leave on one occasion may create an obligation to do so in the future and may create a dangerous precedent.
5.     Has the Employee Provided the Necessary Documentation for the Leave?  For example, under the FMLA and CFRA for a leave taken for serious health condition, a physician should certify the need for the leave.  This is true for pregnancy disability leave and leaves in accommodation of other disabilities as well.  As another example, you may require that employees provide proof they were called to jury duty.  Employers need a consistent practice of requiring this certification before a leave is granted.
6.     Will the Leave be Paid or Unpaid?  Does the law require that you pay some or all of the leave?  Do your policies promise that you will pay some or all of the leave?
7.     May an Employee Apply Accrued Vacation, Sick Leave or Paid Time Off to the Leave?  Must They?  Some laws allow you to require that an employee apply accrued time off to their leave.  For example, employees may be required to apply accrued sick leave to a pregnancy disability leave or to an FMLA or CFRA leave taken for their own serious health condition. 
8.     Will an Employee Continue to Accrue Vacation, Sick or Paid Time Off During the Leave?  Most of the leave laws allow the employer to choose whether to continue the accrual of time off benefits.  Remember, whatever you choose in many cases must be consistently applied to other leaves. 
9.     Will Insurance Continue During the Leave?  Some laws, like FMLA and CFRA, require that the employee remain on the employer's insurance policies as they are during regular employment (FMLA and CFRA require this for a period of up to 12 weeks).  The key here is deciding what you want to do for leaves that are not governed by the law on this subject.  In the absence of a decision, the employee may remain on your insurance at your expense.
10.    How Will the Leave Affect Seniority and Accrual Rates?  Some laws, like military leave laws, require that seniority continue to accrue during a leave.   Most ´╗┐´╗┐laws allow the employer to freeze in time the employee's seniority.  If you want to suspend seniority-based rights during certain leaves, you need to do so during all time off.  For example, if an employee's time off during vacation does not suspend her accrual of additional rights like a new level of vacation accrual, then you cannot suspend accrual of these rights during a pregnancy disability leave.
11.    What are the Employee's Rights to Reinstatement?  Some leaves, like pregnancy disability, require generally that the Company hold the employee's position open for the length of the leave. 
12.     May You Require and Have You Required That the Employee Provide a Release to Return to Work?  Employees who take leave of absence for their own serious health condition or disability should produce a doctor's note stating that they are able to return to work without the risk of harm to themselves or others.  They should not be allowed to return until they produce such a release. 
13.     Have You Provided the Employee with Notice of the Type of Leave That Has Been Granted and the Conditions?  As with all conversations in the workplace, we recommend clear and shared expectations.  Notify the employee in writing if the leave has been granted, the conditions of the leave, the effect on benefits and seniority, any reinstatement rights and the date for return to work. 
14.    Have You Calendared When the Leave Will End and the Consequences of a Failure to Return?   We often hear stories of employees who continue on lengthy leaves because the Company fails to respond to the end of the approved leave.  Be clear on the length you must grant by law or policy, and make sure you are following up with the employee on or about the return date.  You can and should have a policy that states that employees who fail to return on their scheduled return date are considered to have resigned voluntarily. 
15.     Before You Terminate an Employee Who Has Exhausted a Medical Leave, Have You Considered Reasonable Accommodation?  If an employee has taken all the time allotted by law or your policies for medical leave, you may still need to consider whether the employee is disabled and entitled to additional time off as a "reasonable accommodation." 
Your Turn: Take the Sustainable Workplace Quiz
Polly, Pregnancy and Poodle Leaves of Absence 
Polly joins the 500 Employees Company in January 2011.  In February 2011, Polly receives the happy news from her doctor that she is pregnant, and that she is due in August.  Polly immediately tells her Company that she is pregnant, and that she would like to take the months of August through November off.  
Is she eligible for this time off?  How should the Company respond?
In July 2011 Polly's poodle requires surgery, and she requests a month off to care for the serious health condition of her darling pet. 
Is she entitled to this time off?  How should the Company respond?
Polly remains with the Company for another year, and in February 2012 requests time off to care for the serious health condition of her mother. 
Is she entitled to this time off?  How should the Company respond?
To see our thoughts and recommendations, click here
How Can We Help?
If you need help  creating policies and practices that create clear and shared expectations regarding time off, or if you would like guidance in responding to a particular request for time off, give us a call at 619 906 2400 or send us an  e-mail.  We are happy to help.   
If you missed your chance above, and would like to take our quick and anonymous survey on How to Make the Schor Vogelzang & Chung newsletters even better, you still can by  clicking here.  We really appreciate your input.   
Keep an eye out for next month's newsletter, where we will provide more ideas for creating a Sustainable Leaves of Absence system. 

Schor Vogelzang & Chung LLP

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