What You Need to Know About Unpaid Time Off in California

The California Family Rights Act (CRFA) provides 12 weeks of unpaid, job-protected leave to eligible employees who need to take care of a personal or family member’s serious health condition, or to bond with their new child. Here’s everything you need to know about unpaid time off in California and employee rights.

Effective January 1, 2021, CRFA was expanded to include employees whose ability to perform their job has been affected by pregnancy, childbirth, or additional medical health conditions that would warrant unpaid, job-protected leave (PDL). It is also possible for a person to request paid family leave (PFL) under similar circumstances, such as to bond with a new child, to take care of a critically ill family member, or to participate in qualifying exigencies in place of a family member who is deployed with the military. Examples of qualifying events may include a new child care arrangement as a result of a parent, spouse, son, or daughter’s military deployment, a responsibility to attend military ceremonies and briefings, take time to attend to legal or financial arrangements during the deployment, or spend time with their deployed family member who is on covered active duty or on Rest and Recuperation leave.

Unpaid Time Off in California: Defining Serious Health Conditions

In this context, a serious health condition is considered to be an illness, impairment, injury, any physical or mental condition where the patient has some inability to complete their typical, everyday activities, and finally, if the person is in inpatient care in a hospital, hospice, or a residential medical care facility. Any treatments that follow or are part of continuing inpatient care fall into this definition as well.

Examples of health conditions that would not be characterized as critical or serious under California law are the common cold, earaches, headaches (aside from migraines), influenza, stomachaches, minor ulcers, or cosmetic procedures. However, the status of any of these health conditions can change in their severity depending on whether any complications arise. The criteria for defining serious health conditions may be altered depending on the situation.

Types of Unpaid Time Off in California

Pregnancy Disability Leave

California employees have the right to job-protected leave, known as Pregnancy Disability Leave (PDL), if any health condition related to their pregnancy prevents them from performing their job, or for the purpose of bonding with their new child.

Related: Pregnancy Disability Leave in California

An Employee is Eligible for Pregnancy Disability Leave (PDL) if they:

  • Have a pregnancy-related disability and their employer has over 5 other employees,
  • Notify their employer at least 30 days in advance (if possible), and
  • Provide medical certification (may be optional based on one’s employer).

An Employee Eligible for PDL will have:

  • Up to 4 months leave based on the hours they have worked per week and how long their health condition persists,
  • The option to take their leave all in a one-time interval or intermittently,
  • Job protection during their leave; meaning their job (or one that is equivalent) will remain theirs except in layoff circumstances unrelated to their PDL,
  • Access to continued health benefits if they are paid by their employer, and
  • Access to continued seniority benefit eligibility if offered by their employer.

California Family Rights Act Leave: Child Bonding

Under California Family Rights Act leave (CFRA), California employees have the opportunity to take job-protected leave with the purpose of bonding with their new child.

An Employee is Eligible for CFRA Leave if:

  • There is a new birth (biologically, through adoption, or by foster placement) and their employer has over 5 employees,
  • They have worked for their employer for over a year, with 1,250 hours of work over the past year, and
  • They have given their employer 30 calendar days’ notice if possible.

An Employee Eligible for CFRA Leave will have:

  • Up to 12 weeks of leave within one year following the child’s birth, adoption, or the beginning of foster care,
  • The option to take 2-week blocks of leave, and on two occasions, take leave in smaller increments,
  • The option for the other parent to take leave as well, even if both parents have the same employer,
  • Job-protected leave; meaning that their role, or one of comparative value, will be available to them when they return from leave (barring any layoffs unrelated to their leave),
  • Access to continued health benefits if they are paid by their employer, and
  • Access to continued seniority benefit eligibility if offered by their employer.

Family and Medical Leave Act (FMLA)

Under the Family Medical Leave Act (FMLA), California employees also have federal rights to leave for a pregnancy-related disability or to bond with their new child.

Related: Family and Medical Leave Laws in California

An Employee Eligible for Family and Medical Leave if they have:

  • A serious pregnancy-related health condition or a new child, either by birth or through adoption or foster placement,
  • Worked for their employer for over a year, with 1,250 hours of work in the past year, and there are over 50 employees within a 75-mile radius of their place of employment,
  • Provided medical certification of the pregnancy-related health condition (this may be optional based on the employer), and
  • Provided their employer 30 calendar days’ notice (if possible).

An Employee Eligible for FMLA will have:

  • Up to 12 weeks of leave within one year of the child’s birth, adoption, or foster placement, or as long as the pregnancy-related health condition persists (this will occur at the same time as PDL and CFRA leave),
  • Their employer determine whether they can take intermittent leave, or due to the severity of their pregnancy-related health condition, may not need such approval,
  • The option for the other parent to take FMLA,
  • Job-protected leave; meaning that their role or one of equivalence will be available to them when they return (barring any layoffs unrelated to their FMLA),
  • Access to continued health benefits if they are paid by their employer, and
  • Access to continued seniority benefit eligibility if offered by their employer.

Unpaid Leave Versus Paid Family Leave in California

Under California law, paid family leave (PFL) offers benefit payments for people who need time off from work in order to take care of a seriously ill family member, bond with their new child, or take part in a qualifying event in place of a family member who is deployed in the military.
While unpaid leave offers job protection, paid leave may not. PFL only offers benefit payments.

A person who is eligible for PFL is able to receive benefit payments for up to 8 weeks. These payments are determined by calculating 60-70% of their weekly earnings between 5 and 18 months from before the anticipated start date of their paid leave. Depending on the person’s preference, these payments can be issued electronically by debit card or by paper checks.

Eligibility Requirements for Paid Family Leave

In order for a person to receive PFL, they will need to demonstrate that they are presently unable to work, that they have lost wages due to providing care for a critically ill family member, spending time with their new child, or are participating in a qualifying event due to a family member’s military deployment in a foreign country. Additional requirements for PFL for military family members under California law can be found here.

Additionally, the Person Seeking Paid Family Leave Must:

  • Be actively employed or seeking work at the time that their PFL would begin,
  • Be a recipient of at least $300 from State Disability Insurance (SDI) deductions, which were withheld during their base period (the amount of time where wages are earned and time stamps are analyzed to determine someone’s eligibility for benefits),
  • Have completed and submitted their claim no sooner than 1 day before the PFL would begin, but no later than 41 days after it begins (failure to do so within this timeframe could risk losing the benefits),
  • Provide medical documentation (a certificate) to prove their role in caring for their critically ill family member, completed and issued by the patient’s doctor or practitioner.
    • While a nurse practitioner or physician’s assistant can certify this information, they must conduct a physical examination of the patient and work with a doctor throughout this process. The results of the person’s medical examination will indicate the status of their caretaker’s benefits on PFL.
    • Furthermore, a Practitioner’s Certification for Paid Family Leave (PFL) Benefits may be necessary (DE 2502F) (PDF) if the patient is being cared for by an accredited religious practitioner.

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