Tuesday, November 20, 2018

A New Father’s Right to Job-Protected Leave: Paternity Leave in California

Paternity leave is job-protected leave that a father may be eligible to take to bond with a new child. Paternity leave is similar to maternity leave and is sometimes referred to as bonding or new parent leave. California law provides employees broader rights to take job protected leave than the rights provided by the Federal Family and Medical Leave Act (FMLA). California’s New Parent Leave Act extends the California Family Rights Act (CFRA) to cover more employees. Eligible employees may take up to 12 weeks of job-protected leave to bond with their child within 12 months of the birth of the employee’s child, adoption or foster care placement.  There are some requirements that must be met in order to qualify for new parent leave: (1) the employee/new parent must have worked more than 12 months with the employer prior to taking the leave (does not have to be consecutive); (2) the employee must have at least 1,250 hours of service with the employer during the previous 12 months; and (3) the employer employs at least 20 employees within 75 miles of the employee’s work site.

It is important to note that the right to take job-protected leave is different from the right to paid leave. Paternity leave under CFRA and FMLA is generally unpaid; however, some employees may have vacation time, sick time or other paid time off that will allow them to be compensated by their employer while taking paternity leave. Additionally, employees may be eligible for up to six weeks of Paid Family Leave (PFL) benefits through California’s Employment Development Department. Paternity leave does not have to be taken all at once, but it must be completed within one year of the child’s birth, adoption or foster care placement.  CFRA requires employers to pay for the continuation of the eligible employee’s group health benefits if the employer normally pays for those benefits.

In addition to paternity leave, an employee can take leave to care for their spouse or registered domestic partner with a serious health condition, including pregnancy related complications.  The requirements for taking leave to care for a family member with a serious health condition are: (1) the employer has at least 50 employees within 75 miles of the employee’s work site; (2) the employee taking leave has at least 12 months of service with the employer; and (3) the employee has worked at least 1,250 hours for the employer in the 12 months immediately preceding the start of leave.  A serious health condition is defined in the CFRA as an illness, injury, impairment or physical or mental condition that involves inpatient care in a hospital, hospice, residential care facility or involving continuing treatment or continuing supervision by a health care provider.

In addition to the right to take time off from work to bond with a child or care for a family member with a serious health condition, CFRA provides eligible employees the right to reinstatement.  Eligible employees are entitled to the same or comparable position when they return to work following their leave.  A comparable position means a position that is equivalent or virtually identical to the employee’s former position in terms of pay, benefits, shift, schedule, geographic location and working conditions including privileges, status and involve the same or substantially similar duties and responsibilities.

Additional information on paternity/bonding leave can be found at www.dfeh.ca.gov and www.dol.gov. If you think your employer is not following the law, it is a good idea to consult with an attorney. Mastagni Holstedt, A.P.C. handles employment law matters including violations of state and federal parental leave laws. Contact us online or by phone at (916) 446-4692 for a free consultation.

Emily Guerra is an associate in the Civil Litigation Department at Mastagni Holstedt, A.P.C.