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Patrick, Esq.
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Category: California Employment Law
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How to take a leave of absence for stress in California? I

Resolved Question:

How to take a leave of absence for stress in California?

I have been working for my employer for 4 years with continual chaos in our department ( constant change of leadership, reorganization, roles changing, unrealistic expectation at any cost non stop). At this point I am severly stressed/burned out. I am going through a series of panic attacks, loss of sleep and just overall overwhelming stress.

I want to know if I can take a leave of absence but I don't want to reach out to my HR yet for fear of retailiation. I know we have short term disability coverage that covers mental illness. What I want to know are what the steps are in requesting and then requesting a leave of absence due to stress? How long said leave can be? And beyond utilizing my short term disability pay, Vaca/sick/personal time, what government pay would I be eligible for in order to make sure I can retain as close as possible my current pay ( as I am sure that wouldn't help my current stress level).
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question.

If a doctor declares that your stress and anxiety constitute a "serious health condition," you may be eligible to take up to 12 weeks of unpaid protected job leave pursuant to the Family Medical Leave Act

The FMLA is a federal act that guarantees eligible employees up to twelve weeks of unpaid leave on account of, among other things, an employee’s own serious health condition which prevents him/her from working.

In order to be “eligible” the employee must have worked for the employer for at least one year, and worked roughly 30 hours per week (on average) during that year. Also, only employers with at least 50 employees within 75 miles of the employee’s work site are required to provide FMLA protections.

Where an eligible employee takes FMLA leave, he or she has the right to return to work in his or her own, or to a substantially equivalent position, if he/she returns on or before the expiration of the 12-week leave period.

Among other things, an employer can be sued for interfering with an employee’s FMLA leave, denying FMLA leave, refusing to reinstate an employee who timely returns from FMLA leave, requiring an employee to take more FMLA leave than the employee needs, or retaliating against an employee who takes FMLA leave.

For more information regarding FMLA leave, visit this link: http://www.dol.gov/dol/topic/benefits-leave/fmla.htm

In addition to FMLA, in certain very limited circumstances California courts will recognize job-related workers compensation claims. However, insurers vigorously fight these claims and treat them with great skepticism. Further, the burden of proof is on the plaintiff and typically requires them to show that the behavior of co-workers or their employer "shocked the concience." This is a very hard thing to prove. Accordingly, it is quite rare that a workers compensation claim for job induced stress is successful.

So, if you are eligible for FMLA leave and a doctor declares your stress and anxiety as a serious health condition, you may be eligible for protected leave. You can also try to file a workers comp claim, though this probably would not be successful. These would typically be the only options available to an employee in the circumstances you describe.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
Patrick, Esq., Lawyer
Satisfied Customers: 6741
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
So if my employer has short term disability that covers mental illness, can I utilize this for stress leave. Also, I was told that you could actually take up to six months off for stress leave in California, but obviously I don't know if that is accurate or the circumstances behind it which is why I am asking you what may allow someone to do that.
Expert:  Patrick, Esq. replied 2 years ago.
Thank you for your followup and sorry for not addressing all of your concerns.

FMLA leave is unpaid and only lasts for 12 weeks, after which point your employer would typically be free to let you go. There is no ground on which stress leave would be protected for 6 months in the state of Calfornia, even if you were on SDI for more than 12 weeks, your employer would be free to let you go after the FMLA period had lapsed.

SDI is a valid option, but I did not mention it because you already noted it as an option in your question. I apologize if that was confusing.

Your leave will only be paid if you have paid sick days, take SDI (which provides partial wage compensation) or file a successful workers comp claim, but as I noted above, the last option is difficult to pursue.

I sincerely XXXXX XXXXX this helps clarify my answer and I wish you the very best.
Patrick, Esq., Lawyer
Satisfied Customers: 6741
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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