The Intersection of California and Federal Leave of Absence Laws Amidst COVID-19

There are many laws that provide for time off, paid or unpaid, with some providing job protection during leaves of absence. These laws include the California Family Rights Act (CFRA), Uniformed Services Employment and Reemployment Rights Act (USERRA), Family Medical Leave Act (FMLA), Paid Family Leave, California Pregnancy Disability Leave Law (PDLL), California Paid Sick Leave, Workers’ Compensation and more. Understanding and applying these various laws is a challenge, especially amidst the COVID-19 pandemic.

FMLA is a federal leave law that applies to employers with 50 or more employees within 75 miles of the facility. It requires employers to provide eligible employees with up to 26 workweeks of unpaid job protected leave for military caregiver leave, and 12 workweeks for all other covered reasons.

CFRA authorizes eligible employees to take up to a total of 12 weeks of paid or unpaid job-protected leave during a 12-month period. CFRA was originally enacted to mirror the FMLA; however, the laws differ in terms of who is covered. For example, S.B. 1383, which went into effect on Jan. 1, 2021, significantly expanded CFRA by extending its coverage to private employers with five or more employees regardless of the worksite size (instead of 50 or more employees generally, and 20 or more employees in 2020). S.B. 1383 also expanded the scope of covered family members to include grandparent, grandchild, and sibling. Effective Jan. 1, 2022, CFRA will add parents-in-law to the list of family members with serious health conditions for which an employee can take leave under CFRA.

Another distinction between FMLA and CRFA is that pregnancy is covered as a serious health condition under the FMLA, but pregnancy itself is not covered as a serious health condition under the CFRA. Instead, a pregnant employee in California is entitled to pregnancy disability leave under the PDLL for up to 16 weeks. Also, under the federal FMLA, employees are entitled to up to 12 weeks of leave for any “qualifying exigency” arising from the foreign deployment of the employee’s spouse, son, daughter, or parent with the Armed Forces, or to care for a servicemember with a serious injury or illness if the employee is the servicemember’s spouse, son, daughter, parent or next of kin. By contrast, the CFRA does not provide for this type of leave.

The intersection of these leave laws is complex. For example, if an employee requests leave to care for a military service member (i.e., military caregiver leave), then FMLA may run concurrently with CFRA for the first 12 weeks of that leave, as long as it is for a family member and a serious health condition covered by CFRA. CFRA overlaps with FMLA unless an employee is disabled by pregnancy or the leave is to care for a registered domestic partner, sibling, grandchild, or grandparent.

In addition to CFRA and FMLA, there are laws that only protect leaves of absence for military service members. For example, USERRA is a federal law that protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service. Historically, National Guard duty under state authority, commonly referred to as State Active Duty, has not been covered under USERRA. However, pursuant to a recent statutory amendment which became effective on January 5, 2021, USERRA now covers members of the National Guard serving on State Active Duty: a) for 14 days or more, b) in support of a national emergency declared by the President under the National Emergencies Act (which includes service in support of the national emergency concerning the COVID-19 outbreak declared by the President under the National Emergencies Act on March 13, 2020), or c) in support of a major disaster declared by the President under Section 401 of the Stafford Act.

Meanwhile, California law requires employers to provide leave under the following statutes:

· Crime Victim Leave for Judicial & Other Proceedings (Cal. Lab. Code §§ 230.2 and 230.5);

· Victims of Crime or Abuse Leave (Cal. Lab. Code §§ 230(c) and 230.1);

· Voting Leave (Cal. Elec. Code §§ 14000 to 14004);

· Alcohol & Drug Rehabilitation Leave (Cal. Lab. Code §§ 1025 to 1028);

· School Activity Leave (Cal. Lab. Code §§ 230.7 and 230.8);

· Organ & Bone Marrow Donor Leave (Cal. Lab. Code §§ 1508 to 1513).

It is important for both employers and California labor and employment attorneys to be well-versed in the ever-changing leave laws. Employers are advised to seek qualified counsel when navigating these complex and overlapping leave laws.