Question:

I work for a very small employer as a bookkeeper. One of our new employees has requested time off to take care of an ailing family member. Unfortunately, due to our small size, the company is not able to hold the employee’s job open. I told the employee that the company could not grant the time off, and her response was that the company did not have a choice because she was entitled to the leave under the Family Medical Leave Act and the California Paid Family Leave law. Does the company need to give this employee time off to care for her ailing family member?

Answer:

Under the Federal Medical Family Leave Act (FMLA) and the California Family Rights Act (CFRA), eligible employees may take up to twelve weeks of leave during a twelve -month period to care for a child, parent, spouse, or registered domestic partner who has a “serious health condition.” The FMLA and CFRA apply to all employers who employ fifty or more part or full time employees. The FMLA also applies to all public agencies and most federal employers, even if the public entity has less than fifty employees. You indicate that you work for a small employer. If your company does not employ fifty or more part or full time employees, it is not required to comply with the FMLA/CFRA.

In addition, in order to be “eligible” for FMLA/CFRA leave, employees of qualified employers must have at least twelve months of service with the employer, and must have worked at least 1,250 hours during the twelve-month period preceding the date that the leave begins. You stated that the employee in question is relatively new. If she has worked for the company for less than one year or has worked less than 1,250 hours during the last year, your company is not required to provide her with FMLA/CFRA leave.

You also reference the California Paid Family Leave (PFL) law. Despite its name, PFL does not require that employers provide leave for their employees. Rather, PFL provides wage replacement to employees who need time off from work to provide care for parents, children, spouses and domestic partners, or in order to bond with a new child. It provides eligible employees with wage replacement benefits of up to $840 per week for up to six weeks in a twelve-month period. These benefits are available to eligible employees without regard to their length of service with any particular employer. The California Employment Development Department, and not the employer, determines whether or not someone is eligible for these benefits, and the benefits are paid to the employee by the state and not by the employer.

Assuming that your company has less than fifty employees, the company does not have an obligation to hold this employee’s position for her. This is true even if she does qualify for benefits under California’s PFL program. However, if your company has more than fifty employees and the employee has been with the company for more than a year, you must carefully evaluate the company’s obligations to provide this employee with leave pursuant to FMLA/CFRA.
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