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:
The continuing treatment provision requires one of the following:
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:
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:
PFL may be utilized for any of the following reasons: