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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12949
Experience:  Significant experience in all areas of employment law.
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I live and work in California. My spouse just had critical

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I live and work in California. My spouse just had critical cervical spine surgery and her doctor stated that I could not leave her alone for minimum one to two weeks. My employer said that I could not take family sick leave (unpaid) until I exhausted my accumulated paid time off.
Is this correct? Am I also led to understand that there is paid family sick leave in California?
Hello and thank you for entrusting me to assist you. Before I answer your question, can you please tell me whether your company employs 50 employees or more?

I very much look forward to assisting you regarding this matter.
Customer: replied 4 years ago.

It is probably close to 50 or more. I would need to research the exact number.

Customer: replied 4 years ago.

There might be less than fifty employees but over 40 that I can think of. Our payroll is handled by Insperity.

Customer: replied 4 years ago.

Is this entire conversation cancelled? I have heard no response from you!


Thank you very much for your reply and your patience in allowing me to respond (this took a long time to type out). The answer to your question is complicated because it requires an understanding of various leave laws and the way they all interact together. Let me attempt to break it down for you and you can tell me if you have any questions.

First, the reason why I asked if your company has 50 or more employees is because employees who work for such companies are eligible for PROTECTED, unpaid job leave pursuant to the Family Medical Leave Act. FMLA is the only form of job leave that actually protects your position while you are gone, and so eligibility for FMLA is very important. You would be very wise to ask your employer if you are eligible for FMLA--they are under a legal obligation to provide it if they have reason to know you may be qualified for it.

The precise requirements to be eligible are that you must have worked for your employer for at least one year, and worked roughly 30 hours per week (on average) during that year. Also, you must work for an employer with at least 50 employees within 75 miles of the employee’s worksite.

If you are eligible, there is no requirement that you exhaust other forms of leave, such as employer-paid sick or vacation leave, before you take FMLA. All forms of paid leave can be taken concurrently with FMLA.

If you are not eligible for FMLA, your remaining options are employer-offered vacation days, sick days, and Paid Family Leave (the wage replacement government program to which you referred in your question). It is important to understand, however, that NONE of these forms of leave will legally protect your job, and since employment is "at will" absent an agreement to the contrary, your employer retains the right to terminate you at any time whiel you are gone. Of course, you are in a much better position than me to tell if this is something you should actually be worried about, but it is a right your employer has nonetheless.

In order to be eligible for Paid Family Leave, you must have contributed to the State Disabilty Fund (SDI), which you almost certainly have if you are a W2 employee. PFL will provide you with 6 weeks of paid leave up to 55% of your regular wages. There is a 7 day waiting period for PFL to kick in. See here for more information:

An employer may require an employee to take two weeks of earned, but unused vacation leave prior to getting PFL benefits. Vacation leave may include paid time off. This may have been what your employer was referring to when they said that you had to take PTO before getting family leave, though they were incorrect that you needed to use it "all" (you only need to use 2 weeks).

Employer offered paid sick leave and PFL can be used concurrently to equal as much as 100% wage replacement.

So, to summarize this complicated web of laws, only FMLA provides you with any sort of actual protected leave. The remaining forms of leave are PFL, and employer offered paid vacation and sick leave. An employer may require an employee to take up to 2 weeks of paid vacaton before getting PFL. Sick days and PFL can be taken at the same time to equal up to 100% of your regular wages.

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.

Customer: replied 4 years ago.

Thank you for the thorough explanation. One quick question: Does FMLA pay a benefit? Do I not need to take PTO before I can use it?


Thank you very much for your reply. FMLA provides unpaid but protected job leave for up to 12 weeks. There is absolutely no requirement that PTO be taken before you are eligible for FMLA. In fact, most employees take both PTO (if they have it) and FMLA concurrently so as to maintain some sort of income while they are away from work. You can also take PFL at the same time as FMLA.

Please do not hesitate to let me know if you require any further clarification. If so, I am more than happy to continue helping. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

I hope your wife makes a swift recovery and I wish you both the very best.
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