People Operations | Management

Paid Family Leave

In 2004, California created the Family Temporary Disability Insurance program. This program is  commonly known as Paid Family Leave (“PFL”), and allows an employee to apply for up to six weeks of government-provided wage replacement benefits to cover unpaid time off from work to care for a seriously ill child, spouse, domestic partner or parent, or to bond with a child within one year of birth or the placement of the child in connection with foster care or adoption.

Effective July 1, 2014, the law is amended to also provide PFL benefits to employees who are off work without pay to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law. The law defines a“sibling” as a person related to another person by “blood, adoption or affinity through a common legal or biological parent.” However, the amendment does not create any new family care leave entitlement or expand obligations of employers to grant family care leaves under the California Family Rights Act.

Note: On June 26, 2013, the U.S. Supreme Court, in United States v. Windsor, found unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA), which had prohibited the federal government from acknowledging marriages between same-sex couples. In a related case, Hollingsworth v. Perry, the court ruled that those challenging a California state court decision that made same-sex marriage legal in California (by overturning a state ballot initiative known as Proposition 8) lacked standing to do so—a finding that restored legal same-sexmarriage in the state. Meaning same-sex spouses now meet the definition of a spouse. Similarly, children of same sexspouses are considered to be stepchildren of the non-natural parent, and employees are entitled to take FMLA leave for their care, as well.

PFL covers physical or psychological care for the family member. Activities such as providing psychological comfort; attending to hygienic, nutritional and safety needs; arranging third-party care; and directly providing or participating in medical care all constitute caring for a family member. An employee will not be eligible for PFL benefits if another family member is ready, willing, able and available to provide care during the same hours in a day.

A serious health condition is an illness, disability, injury, impairment or physical or mental condition involving either of the following: 

    • Care requiring a stay in a hospital, hospice or residential care facility. 
    • Continuing treatment by a health care physician or practitioner.

The continuing treatment provision requires one of the following: 

    • A condition causing incapacity for more than three days that requires:o 
      • Two or more visits to a health care provider.
      • One visit with a regimen of continuing treatment and supervision 
    • A condition that continues over an extended period of time and requires periodic doctor visits and that may cause occasional or periodic, rather than continuous, incapacity.
    • Permanent or long-term absences due to a condition for which treatment may not be effective(such as terminal cancer) where the patient is under the supervision of, but not necessarily being actively treated by, a health care provider. 
    • Absences to receive multiple treatments for 1) restorative surgery or 2) a condition that would likely cause a period of incapacity of more than three days if not treated, or pregnancy and prenatal care.
Treatment includes examinations to determine if a serious health condition exists and an evaluation of that condition. Treatment does not include routine physical, eye or dental exams.

Cosmetic treatments or surgery, and treatments for routine conditions such as the flu, are not generally considered sufficient to count as a serious health condition.

The term “health care provider” includes the following:

    • Licensed medical doctors. 
    • Clinical psychologists. 
    • Optometrists, dentists and podiatrists. 
    • Licensed nurse practitioners and nurse/midwives. 
    • Clinical social workers.
    •  Chiropractors (depending on the treatment provided). 

Eligibility. All California employees, including new or probationary employees, who pay into State Disability Insurance (SDI) qualify for benefits under PFL.

PFL applies to employees regardless of the size of employer. Therefore, PFL applies to many more employees than the federal and state unpaid leave laws, such as federal FMLA or CFRA, which do not apply to employees working for companies with fewer than 50 employees.

Benefits and waiting periods. There is a seven-day waiting period before benefits are paid. These firstseven days do not have to be consecutive. For example, if one day of care were provided each week, theseven-day waiting period would be satisfied over a seven-week period. Employees taking intermittentleave still must observe the seven-day waiting period. Each day that the employee is eligible for PFL benefits will count toward this waiting period.

An employer may require an employee to take up to two weeks of earned but unused vacation or paid time off (PTO) leave before beginning to receive benefits. One week of the vacation or PTO leave will be used to satisfy the seven-day waiting period. This requirement will not apply to employees whose union contract prohibits substitution of vacation leave for PFL. Additionally, an employer cannot require an employee to use sick leave before receiving PFL benefits. 

An employee may receive PFL benefits during leave that is taken all at one time or on an intermittent basis in hourly, daily or weekly increments. One exception is employees receiving PFL benefits whiletaking job-protected leave to bond with a new child under CFRA. These employees may be required to take the bonding leave in two-week increments.

Generally, an employee will receive 55 percent of his or her weekly wage, up to a maximum of $840 per week. The benefit amount is based, in part, on the employee’s previous earnings.

Notice requirement. Applications to care for a family member with a serious health condition require documentation of the serious health condition and an assertion that the serious health condition requires the employee to provide care for his or her relative. The health care practitioner must fill out and sign this portion of the form.

Bonding claim forms must be accompanied by documentation of the birth or placement of the adopted or foster child. Generally, parents supply a hospital discharge record, copy of the birth certificate, adoption placement notice or other notice from a government agency stating that the child has been placed with the family.

Reinstatement. Unlike federal FMLA and CFRA, which require that employers hold jobs for eligible employees when they return from leave, PFL does not expressly include the right to be reinstated.

PFL can be taken at the same time as family and medical leave under FMLA or CFRA. Therefore,employees who receive PFL benefits concurrently with FMLA or CFRA leave are guaranteed to get their jobs back when they return to work.

Even if an employee is not qualified for FMLA or CFRA time, the employee may still be protected by Labor Code Section 230.1, which permits employees of companies with 25 or more employees to take up to 12 weeks of job-protected time off from work to receive services related to domestic violence or sexualassault. These services include time off work for medical or psychological care.

An employee who takes the paid leave and is fired during or shortly after the leave, and whose employer is too small to provide protection under FMLA or CFRA, may be able to get his or her job back if the employee proves that he or she was fired merely for taking the benefit of PFL.

PFL insurance. Employees covered by SDI are also covered by PFL insurance. If a Voluntary Plan Insurer provides a company’s disability insurance coverage, then it must also provide PFL insurance coverage.

Disability benefits can be paid only after an individual meets all of the following requirements:

    • The individual must be unable to do his or her regular or customary work for at least eight consecutive days. 
    • The individual must be employed or actively looking for work at the time he or she becomes disabled. 
    • The individual must have lost wages because of his or her disability or, if unemployed, the individual must have been actively looking for work. 
    • The individual must have earned at least $300 from which SDI deductions were withheld during a previous period. The individual must be under the care and treatment of a licensed doctor or accredited practitioner during the first eight days of the disability. (The beginning date of a claim can be adjusted to meet this requirement.) The individual must remain under care and treatment to continue receiving benefits.
    • The individual must complete and mail a claim form within 49 days of the date he or she became disabled or may lose benefits. 
    • The individual’s doctor must complete the medical certification of disability. A licensed midwife,nurse/midwife or nurse practitioner may complete the medical certification for disabilities related to normal pregnancy or childbirth. (If the individual is under the care of a religious practitioner,request a Practitioner’s Certificate from the SDI office. Certification by a religious practitioner is acceptable only if the practitioner has been accredited by the Employment Development Department.)
An independent medical examination to determine the individual’s initial or continuing eligibility may be required.

PFL may be utilized for any of the following reasons: 

    • To care for a seriously ill child, spouse, parent or registered domestic partner. 
    • To bond with the employee’s new child or the new child of the employee’s spouse or registered domestic partner. 
    • To bond with a child in connection with the adoption or foster care placement of the child with the employee or the employee’s spouse or registered domestic partner.
A serious health condition means an illness, injury, impairment or physical or mental condition of a patient that involves inpatient care in a hospital, hospice or residential medical care facility. This includesany period of incapacity (e.g., inability to work, attend school or perform other regular daily activities), orany subsequent treatment in connection with such inpatient care or continuing treatment by a physician orpractitioner. Unless complications arise, cosmetic treatments, the common cold, influenza, earaches, upset stomach, minor ulcers and headaches other than migraine are examples of conditions that do not meet the definition of a serious health condition for purposes of PFL.

 An individual becomes ineligible for PFL in the following situations: 

    • The individual claims or receives Unemployment Insurance or Disability Insurance benefits. 
    • The individual receives workers’ compensation benefits at a weekly rate equal to or greater than the PFL rate. 
    • The individual fails to have an independent medical examination when requested to do so.