Q: I heard there is a new parental leave law in California. How does it compare to other states’ laws and will it affect my business if I have employees in California?
A: Parental leave laws are one of the most complicated aspects of employment law to administer and track. There are federal, state, and local laws at play, and there is very little uniformity across the laws and across the states. Even within one state, there may be multiple laws applicable to parental leave, and it can be difficult to navigate the interaction and overlap between the laws. California’s new parental leave law continues to add to this complexity.
As a starting point, it is important for employers to understand the difference between laws that provide leave entitlement and laws that provide compensation during leave. Laws that provide leave entitlement generally provide eligible employees with a certain amount of leave for qualifying reasons. The leave is unpaid, but most laws and/or employer policies require or allow employees to use accrued paid time off for part or all of the leave. Many states also have laws that provide compensation for time off, but do not necessarily provide a leave right.
California’s new parental leave law is an entitlement leave law. Effective January 1, 2018, employers with 20 to 49 employees nationwide must provide up to 12 weeks of unpaid leave for baby bonding. In essence, this expands to smaller employers the obligation to provide baby bonding leave under the California Family Rights Act (“CFRA”), which applies to employers with 50 or more employees nationwide. To qualify for leave, employees must have worked for the employer for at least 1,250 hours in the past 12 months, and work at a worksite where the employer employs at least 20 employees within 75 miles.
In addition to baby bonding leave (as mentioned above), the CFRA, a leave entitlement statute, provides employees up to 12 weeks off to care for an immediate family member with a serious health condition, or for the employee’s own serious health condition. A third California leave entitlement law – the California’s Pregnancy Disability Leave Law (PDL) – entitles an employee to up to 16 weeks of leave for disabilities related to pregnancy. The PDL applies to employers with five or more employees nationwide, and there is no minimum requirement of number of hours or years worked for an employee to be eligible.
California’s leave entitlement laws work in conjunction with the state’s Paid Family Leave (“PFL”) program. California PFL is a compensation law, and provides up to six weeks of partial pay to employees who take time off from work to care for a family member with a serious health condition or to bond with a new child. California PFL applies to all employers who employ one or more employees, and have been paid wages of $100 or more in any quarter of the previous calendar year. There is no minimum number of hours or days worked for employees to qualify for California PFL benefits. California PFL is only a compensation law, however, and not a leave entitlement law – thus, it does not create any rights to leave, but rather provides partial pay for leave taken under leave entitlement laws and/or employer policies. If the leave taken under FMLA, CFRA and/or PDL is for baby bonding or to care for a family member with a serious health condition, the employee can partially fund the leave for up to six weeks through California PFL.
For employers with employees in more than one state, it is important to understand the differences between the statutes of each state, as well as the leave entitlement provided by the federal Family and Medical Leave Act (FMLA), and administer them accordingly. New Jersey, for example, has an existing paid family leave law (PFL), which is similar to California’s law. To be eligible for New Jersey PFL (a statute that provides compensation rights but not leave rights), an employee must have worked at least 20 calendar weeks or earned at least $7,150 during the 12 months preceding the leave. New Jersey also has a leave entitlement law, but does not provide a leave entitlement for an employee’s own serious health condition.
As discussed in an earlier post, New York also has a new family leave law that is effective January 1, 2018. Like California and New Jersey PFL, New York PFL provides partially paid leave for an eligible employee who is providing care for a family member with a serious health condition, and for bonding with a child. New York PFL also covers time off for reasons associated with a spouse, child, or parent’s active military duty. However, unlike California and New Jersey PFL, New York PFL provides both leave entitlement and compensation entitlement.
Given the complexities around leaves, employers should ensure their Human Resources personnel are thoroughly trained, and have access to legal counsel for consultation.