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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6303
Experience:  Significant experience in all areas of employment law.
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employee benefits: an employee has asked for 12 weeks off of

Customer Question

employee benefits: an employee has asked for 12 weeks off of work for birth of child under FMLA. She is also asking for additional 6 weeks under "California Paid Family Leave Act" for a total of 18 weeks off. Am I required to provide 18 weeks of time off?!
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question.

Can you please tell me how many people your company employs? Also, how long has this individual been working for you?

I very much look forward to assisting you regarding this matter.
Customer: replied 1 year ago.

Hello,


I incorporated each office separately so I have a total 87 employees if you include all three corporations but the specific entity that this employee works at has 30 employees. She is a full-time manager and has been with me for 3 years. She's good. We are inclined to honor the FMLA request but I think technically we don't have to? Its the additional 6 weeks she is requesting under "California Paid Family Leave Act" that is killing us.

Expert:  Patrick, Esq. replied 1 year ago.
Thank you very much for your reply.

The California Pregnancy Disability Leave Law (PDLL), contained in the Fair Employment and Housing Act, applies to employers who employ five or more employees and applies to all employees, irrespective of the amount of time they have been employed. PDLL requires employers to provide for up to four-months of protected leave per pregnancy that can be taken on a continual basis or in smaller increments, as needed.

Specifically, Government Code 12945 states as follows:

(a) In addition to the provisions that govern pregnancy,
childbirth, or a related medical condition in Sections 12926 and
12940, each of the following shall be an unlawful employment
practice, unless based upon a bona fide occupational qualification:

(1) For an employer to refuse to allow a female employee disabled
by pregnancy, childbirth, or a related medical condition to take a
leave for a reasonable period of time not to exceed four months and
thereafter return to work, as set forth in the commission's
regulations. The employee shall be entitled to utilize any accrued
vacation leave during this period of time. Reasonable period of time
means that period during which the female employee is disabled on
account of pregnancy, childbirth, or a related medical condition."


An employee who invokes their right to take leave under the PDLL cannot be terminated in retaliation for taking such leave.

Furthermore, a pregnant employee will typically be entitled to an additional 12 weeks of leave to bond with their baby once it is born pursuant to the California Family Rights Act (CFRA).

In order to be eligible for CFRA baby bonding leave, the employee must have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months at a location where at least 50 employees are employed by the employer within 75 miles. Essentially, these are the same requirements as for FMLA.

The CFRA defines "employer" as "any person who directly employs 50 or more persons to perform services for a wage or salary." Pursuant to this definition, an individual who operated several different companies which are incorprated separately and only together have more than 50 employees would likely qualify. Keep in mind, however, that there is still a requirement that at least 50 employees be employed within a 75 mile radius, so if that is not the case, CFRA baby bonding will not apply.

FMLA also only applies to employees with 50 or more employees, and "employer" is defined in a similar fashion. However, since California's PDLL already permits pregnant employees to take 12 weeks off and FMLA would only run concurrently with PDLL (not in addition to it or baby bonding), the applicability of FMLA is irrelevant.

Paid Family Leave does not provide employees with any sort of job protection--PFL provides wage replacement up to 55%. PFL will not extend the amount of time an employee can take off without being fired.

To summarize, the applicable protections are PDLL, which provides up to 12 weeks of protected leave for pregnant women, and CFRA baby bonding, which provides an additional 12 weeks of protected leave. FMLA would run concurrent with PDLL, and so applicability of FMLA is irrelevant. CFRA likely applies because the total number of employees among the three companies exceeds 50 (assuming at least 50 work in a 75 mile radius, irrespective of the company).

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes and happy holidays to you.
Patrick, Esq., Lawyer
Satisfied Customers: 6303
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you so much for this detailed answer. Quick clarification. If I understand the language this employee could theoretically take up to 24 weeks right?

Customer: replied 1 year ago.

So as you read the law it says that I provide 12 weeks under PDLL and an additional 12 weeks if needed. That is far more than 4 months.

Expert:  Patrick, Esq. replied 1 year ago.
Thank you for your replies and sorry for my delay in getting back to you there.

To clarify, assuming that both PDLL and CFRA apply, which would be the case as an employer with more than 50 employees, a pregnant employee would be entitled to up to 24 weeks of protected time off, should they decide to take it. This is, indeed, more than 4 months.

Please let me know if I can offer any further clarification.

Best wishes.

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