Cliffs Notes For Small California Employers: Leaves of Absence

Employees are entitled to various leaves of absence and time off work under both state and federal law. Many employers, particularly small employers, are unaware of the extent and in some instances even the existence, of various rights employees have to leaves of absence and time off from work. What follows is an abbreviated version of California employers' legal obligations to provide leaves and time off from work for small businesses, i.e., those employing fewer than 25 employees. Of course, large employers are bound to provide these same rights; however, those employers with more than 25 employees are required to provide leaves and time off in addition to those identified below.

Many leaves have particular requirements, including notification and certification and provide reinstatement rights, which will not be discussed herein, but are important. Employers must take steps to understand and comply with the intricacies of these laws. Unless otherwise noted, the below leaves/required time off apply to all employers with no minimum threshold number of employees.

Americans With Disabilities Act ("ADA") (42 U.S. C. Section 12101 et seq.) and the California Fair Employment and Housing Act ("FEHA") (Gov. Code Section 12945 et seq.)

Employers with 15 or more employees have an obligation to provide a reasonable accommodation to qualified individuals with a disability under the ADA. This same requirement is imposed by the California counterpart, FEHA, and applies to employers with 5 or more employees. The courts have held that in many instances, leaves of absence that are not indefinite will constitute a reasonable accommodation. The reasonableness of the length of any leave under these statutes requires an assessment of the business needs of the employer, the position held by the employee, and the burden that the employee's absence will inflict, among other considerations.

Pregnancy Disability Leave (Cal. Government Code Section 12945)

Employees are entitled to up to four months for pregnancy-related disabilities that prevent the employee from performing her job. Government Code Section 12945 prohibits employers with 5 or more employees from refusing to allow employees affected by pregnancy, childbirth or related medical conditions to take a leave on account of pregnancy. There are no minimum length-of-service requirements for an employee to be eligible for protection.

An employee actually disabled by pregnancy may take the leave continuously, or, if provided for by her doctor, the employee may take leaves intermittently or on a reduced schedule basis.

Paid Family Leave (Unemployment Insurance Code Sections 3300 et seq.)

Employees who are unable to work due to the need to care for a new child or seriously ill child, parent, spouse or domestic partner are entitled to up to six weeks of paid family leave benefits. The employee must be covered by the SDI program with sufficient base period earnings.

Kin-Care (Cal. Labor Code Sections 233-234)

Employers are not required to provide sick leave to its employees. However, if the employer provides sick leave, it must allow all employees who are eligible for sick leave to use one half of their accrued leave to care for a sick child, parent, spouse or domestic partner.

Time Off to Visit School Authorities (Cal. Labor Code Section 230.7)

If an employee is a parent or guardian who has been requested to visit the school because of a child's suspension, the employee must be given time off to do so. However, the employee must provide reasonable notice to the employer indicating that he/she has been requested to appear at the school.

Time Off to Vote (Cal. Elections Code Sections 14000-14002)

Employees who are unable to vote due to work schedules must be given time off from work to vote in a state-wide election.

U.S. Military Leaves Law (38 U.S.C. Sections 4301 et seq.) and California Military Leave Law (Mil. & Vet. Code Sections 394-395)

All employers are required to comply with state and federal military leave laws. Under California law, employees who are members of a reserve corps or who have other specified military obligations who need to perform military duty must be allowed 17 days.

Under Federal law, employees who serve in the Armed Forces, Army National Guard, Air National Guard, the commissioned corps of the Public Health Service and any other category of persons designated by the President in time of war or national emergency is entitled to leave under this section for "service", which includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and time for the purpose of an examination to determine the person's fitness to perform any such duty.

When the employee gives advance notice of the service obligation to the employer, he or she is entitled to a leave of absence and reemployment rights so long as the total length of the absence does not exceed five years (when combined with all previous absences from the same employer) and the employee reports to the employer for work or submits an application for reemployment in a timely manner.

Volunteer Firefighters (Cal. Labor Code Section 230.3, 230.4)

Employees who serve as volunteer firefighters must be afforded time necessary for emergency duty.

Time Off Related to Court Proceedings (Cal. Labor Code Section 230(a)-(d), 230.1 and 230.2)

There may be times, although rare, when an employee is required or needs to appear for or attend court proceedings. All employers are obligated to provide leave when an employee is: (1) subpoenaed to appear as a juror; (2) subpoenaed to appear as a witness; (3) subpoenaed or ordered to appear in court related to a crime; (4) the victim of domestic violence; or (5) the victim of sexual assault.

The employee must give reasonable notice to the employer of the duty or obligation prior to taking time off. Employees may use their accrued vacation, personal leave or sick when they are required to miss work for one of these reasons.

Employers should consult with an experienced employment law attorney or human resources agency to ensure compliance with, and understanding of, all applicable leave laws. Again, this article is not intended to be a comprehensive tutorial but an abbreviated version of the basic laws that apply to small employers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.