State and Federal Employee Leave Laws in California

Sick Leave Law in California

In California, employees working at private businesses have the right to take leave of absence guaranteed by the federal and state law as well as the local ordinances depending on where you live. This guide discusses the leave law governing the private employers and their employees.

Sick Leave for Employees

Serious Health Condition

If you have a serious health condition that prevents you from performing essential functions of the job as an employee, you can take an unpaid “sick” leave.1 Typically, you would be unable to come to work and need to be in the hospital and cared by the doctors there.2

In California, serious health condition does not include disabilities due to pregnancy, childbirth or related illnesses.3 Also, California law requires employers to provide paid sick leave benefits for diagnosis, care or treatment of an existing medical condition.4

Medical Certification

To take a sick leave, you may be required of a medical certification from your doctor showing a serious health condition.5 A medical certification needs to contain the following information:

  1. when the serious health condition started
  2. approximately how long it would last
  3. the appropriate medical facts within the knowledge of the health care provider regarding the condition; and a statement that the employee is unable to perform the functions of the employee’s position.6

The medical information relating to leave request must be kept private and confidential.7

Fitness-for-duty report

When you return to work, the employer may require a fitness-for-duty report from your doctor, confirming that you are well enough to be back to work.8 This requirement must be fair to all employees that the employer cannot selectively ask this to a certain employee.9

The employer cannot require you to take a physical fitness test from a nonmedical provider, because such a test could be used to screen out persons with disabilities.10

Sick Leave for Employees’ Families

The law also allows leave not only for your own illness but also for you to care for family members who are in need. California law provides you for 12 workweeks of unpaid leave in a 12-month year to care for a child, spouse, or parent with a serious health condition as above.11

Similar to sick leave for your own illness, a medical certification on the condition of and the need to care for your family may be required.12

The definition of family includes not only your children and spouse but also your same-sex spouses, domestic partners or registered domestic partners they have the same rights, protections and benefits as are granted to traditional spouses.13

In addition, you can take additional leave up to 26 workweeks of unpaid leave if your family member, who is on active duty in the Armed Forces, is injured during the service.14 The family member of yours who is on active duty need to either a spouse, son, daughter or parent but not “next of kin” or other relatives.15

Childcare Leave

California law provides for 12 workweeks of leave in a 12-month year for birth or adoption of your child or place of your child in foster care.16 Also, if your child is hearing impaired, you may be entitled to a leave to work on the his or her language skills.17

Other, Less-Common Types of Leave

Maternity Leave

Under California law, mothers are given maternity leave for four months per pregnancy due to pregnancy, childbirth or related medical condition.18 The law also requires work reassignment to reasonably accommodate pregnancy.19

Leave for Organ and Bone Marrow Donation

For the purpose of donating an organ to another person, you can request a leave.20

Drug Rehabilitation Leave

Your employer must reasonably accommodate an employee voluntarily entering an alcohol or drug rehabilitation program, as long as doing so does not impose an undue hardship on your employer.21 Note that current drug or alcohol use is not protected.22

Voting Leave

As an employee, you are given sufficient time off to vote in any statewide election so if you do not have sufficient time outside of working hours to vote, you are to provide time off your working hours to vote.23

Jury Duty Leave

If you are summoned to jury duty, your employer is required to give you an unpaid leave. Your employer is not allowed to discriminating or retaliating against you for taking jury duty leave.24

Witness Testimony Leave

Similar to jury duty, if you have become a victim of a crime, you are entitled to take time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.25

Leaves for Victims of Domestic Violence

If you have become a victim of domestic violence, sexual assault or stalking, you are entitled to time off from work to obtain relief, to help ensure you and your children’s health, safety or welfare.26

Leave for Crime Victims

If you have become a victim of a crime, you may be absent from work to attend judicial proceedings related to that crime and you can do the same if your immediate family member, a registered domestic partner of a victim, or the child or a registered domestic partner has become a victim.27

Crime here means a violent felony, a serious felony or a felony provision of law proscribing theft or embezzlement.28

Leave for School Visits

You are entitled to take up to 40 hours per year to participate in your child’s school or licensed day care activities.29

If your child is suspended for bad behavior or misconduct at his or her school, you could request leave for school visits.30

Leave for Literacy Education

If you have issues with illiteracy and request your employer’s assistance in adult literacy program, your employer must reasonably accommodate and assist you with leave.31

Leave for Emergency Personnel

If you are a volunteer firefighter, reserve police officer or emergency rescue personnel, you are entitled to leave to perform your duty.32

Leave for Civil Air Patrol

If you are a volunteer member of the California Wing of the civilian auxiliary of the USAF who has been directed to respond to an emergency operational mission by the USAF, the California Emergency Management Agency, or other political subdivision of the State of California with authority to authorize such a mission, you may request a leave.33

Military Service Leave

Employers are required to grant employees leaves for periods of military service, usually for a total of up to five years.34

Eligibility for Family Leave

Employer Size

To take leave for your serious health condition or for your family member or childcare purposes, your employer must be large enough to absorb the impact of your absence:

  1. 50 employees or more: The employer must have employed 50 or more for the recent year.35
  2. Not fewer than 50 employees within 75-mile radius around your workplace: Some regional office of a large company may be too small to find a replacement to reassign your job during your absence.36

Length of Employment

Besides your employer having enough employees, you need to have worked at your current job long enough before you have your right to leave.

  1. One Year: You need to have worked at least one year for your employer. If you are no longer working at the time you request the leave, you cannot have leave.37
  2. 1,250 hours: You need to have worked over 1,250 hours during the past one year from the date your leave is to begin.38

Paid time off and vacation times do not count toward the 1250 hours of service. The time spent before or after your job connected with your job, for example, putting on safety gears, washing up, changing clothes, etc. do not normally count unless they are indispensable to the employee’s health and safety.39
If you have been serving in the military during the current employment, you are credited with the hours of service that would have been performed but for the military service.40

Eligibility for Other Types of Leave

Maternity Leave

Unlike the general types of leave, your employer needs only have five or more employees and there is no length of employment like 1250 hours of service.41

Leave for Organ and Bone Marrow Donation

Your employer needs to have 15 or more employees.

Drug Rehabilitation Leave

Your employer needs to have 25 or more employees.

Voting Leave

Regardless of the size, all public and private employers must provide voting leave.42

Jury Duty Leave

All employers must provide time off for permanent employees’ jury service and there is no exemption for smaller employers.43

Witness Testimony Leave

All employers must provide leave.44

Leaves for Victims of Domestic Violence

All employers must provide leave.45

Leave for Crime Victims

All employers must provide leave.46

Leave for School Visit

Your employer needs to have 25 or more employees.47

Leave for Literacy Education

Your employer needs to have 25 or more employees.48

Leave for Emergency Personnel

All employees are required to grant this leave.49

Leave for Civil Air Patrol

You must have been employed for at least 90 days before beginning of this leave.50

Military Service Leave

All employers must provide leave.51

How Long Leave Can Last

The type of leave does not have to be consecutive- you can take so-called intermittent and reduced schedule leave.52 However, an employee who is taking intermittent or reduced schedule leave must be able to perform the essential job functions of the employee’s position when at work.53

The Right to Get Your Job Back

After taking leave lawfully, you are entitled to be reinstated to the same or an equivalent job, unless you are a “key employee”.54

If you are returning veteran, you have a guaranteed right of reemployment after military service and the position to which such veterans are entitled upon their returns,55 and prevents employers from discriminating against returning veterans.56

If you need a written assurance, you can even ask your employer to provide the written guarantee of reinstatement.57

Note that the reinstatement guarantee does not always protect your job. In case when you may not get back to your previous position when the position is eliminated, for example, layoff.58

Who is a Key Employee?

A key employee here means is a salaried employee who is one of the highest paid 10% of all employees within 75 miles of the employee’s worksite.59

If you are a “key employee” and reinstatement would result in substantial and grievous economic injury to an employer, the employer may deny reinstatement after properly notifying the employee and affording an opportunity to forgo the leave or return.60

Note that if you must give written notice to the employee of his or her “key employee” status and the potential consequences to reinstatement rights.61

Able to Perform the Essential Function of the Position

However, you may not be reinstated if, upon return, you cannot perform an essential function of your position- he employer is required to provide a reasonable accommodation due to the disability from the illness.62

Getting Benefits During Leave

In addition to being reinstated, you are entitled to the equivalent pay and benefits for taking the general type of leave,63 meaning the same pay as before the leave, plus any unconditional pay increases which the employee would have received during the leave period. For example, your health benefit under a group health plan and worker’s compensation during the leave remain intact.64

However, performance based bonuses are not included here.65

Your Employer’s Duty to Inform You of Your Leave Rights

Employers must provide a certain notice to employees of their rights to take family and medical leave and it must be conspicuous and be in foreign language if a significant portion of the employer’s workforce is comprised of workers who do not read English.66

In addition to posting notice, the employer must include information about the leave rights and obligations in the company handbook.67 Failure to provide notice is an interference of your rights and your employer may be liable for compensation and lost benefits.68

Footnotes

  1. 29 U.S.C. § 2612(a)(1)(D)
  2. CFR § 825.114
  3. 2 Cal.C.Regs., § 11093(b)
  4. Lab.C. § 245 et seq.
  5. 29 USC § 2613(a); 29 CFR § 825.305(a)
  6. 29 USC § 2613(b)(1)-(4); 29 CFR § 825.306(a)
  7. 29 CFR § 825.500(g)
  8. 29 USC § 2614(a)(4); 29 CFR § 825.312(a)
  9. 29 CFR § 825.312(a).
  10. Indergard v. Georgia-Pacific Corp. (9th Cir. 2009) 582 F3d 1049, 1050
  11. Gov.C § 12945.2(a)
  12. Gov.C. § 12945.2(j)(1); 2 Cal.C.Regs. § 11091(b)(1)
  13. Fam.C. § 297.5(a)
  14. 29 USC § 2612(a)(3), (4).
  15. 29 USC § 2612(a)(1)(E); 29 CFR § 825.126(a).
  16. Gov.C § 12945.2(a)
  17. Department of Fair Employment & Housing v. Standard Register Co., Case No. 99-04, 1999 WL 335138 (4/7/99)
  18. Gov. C. § 12945(a)
  19. Gov. C. § 12945(a) & (b)
  20. Lab.C. §1508
  21. Lab.C. § 1025
  22. Gosvener v. Coastal Corp. (1996) 51 Cal. App. 4th 805
  23. California Elec.C §14000
  24. 28 USC §1875(a), Lab.C. §230(a).
  25. Lab.C § 230(b), 230.5
  26. Lab.C. 230(c) and 230.1
  27. Lab.C. 230.2(b)
  28. Pen.C. 667.5, Pen.C. 1192.7, Lab.C. 230.2(a)
  29. Lab.C. § 230.8(a)(1)
  30. Lab.C. § 230.7
  31. Lab.C. §1040.
  32. Lab.C. § 230.3(a)
  33. Lab.C. §1500
  34. 38 U.S.C. § 4312(a)(1)
  35. 29 USC § 2611(4)(A)(i)
  36. 29 USC § 2611(2)(B)(ii)
  37. Walls v. Central Contra Costa Transit Auth. (9th Cir. 2011) 653 F3d 963, 967
  38. 29 USC § 2611(2)(C); 29 CFR § 825.110(c)(1)
  39. Pirant v. United States Postal Service (7th Cir. 2008) 542 F3d 202, 208
  40. 29 CFR § 825.110(c)(2)
  41. Gov.C. § 12926(d); 2 Cal.C.Regs. § 11035(h)
  42. California Elec.C. §14002
  43. 28 USC §1875
  44. Lab.C § 230(b), 230.5
  45. Lab.C. 230(c) and 230.1
  46. Lab.C. 230.2(b)
  47. Lab.C. § 230.8(a)(1)
  48. Lab.C. §1040
  49. Lab.C. §230.3(a)
  50. Lab.C. §1501(b)
  51. 38 U.S.C. § 4312(a)(1)
  52. 29 USC § 2612(b)
  53. Hatchett v. Philander Smith College (8th Cir. 2001) 251 F3d 670, 677
  54. Spangler v. Federal Home Loan Bank of Des Moines (8th Cir. 2002) 278 F3d 847, 851; Seeger v. Cincinnati Bell Tel. Co., LLC (6th Cir. 2012) 681 F3d 274, 281
  55. 38 USC § 4312
  56. 38 USC § 4311
  57. 2 Cal.C.Regs. § 11089(a)
  58. 29 CFR § 825.209(f)
  59. 29 USC § 2614(b)(2)
  60. 2 Cal.C.Regs. § 11089(a)
  61. 29 USC § 2614(b)(1)(B)
  62. 29 CFR § 825.216(c)
  63. 29 CFR § 825.215(c)(1), (2)
  64. 29 CFR § 825.110(b)
  65. Sommer v. Vanguard Group (3rd Cir. 2006) 461 F3d 397, 405

  66. 29 CFR § 825.300(a)(4)
  67. 29 CFR § 825.300(a)(3)
  68. 29 CFR § 825.300(e)

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