Will you take family leave?

[Updated: paid family leave and job protections have been expanded in California since this post was first written.]

California moms: did you know that the majority of you may be eligible for nearly seven months of job-protected time off related to the birth of your child?[1] Did you know that most of your time off would be partially paid—with wage replacement through California’s Employment Development Department (EDD)?[2]

Dads: did you know that most of you are eligible for 12 weeks of job-protected leave to bond with your new baby? Did you know that you can take that time off any time within the first year, including in increments? Did you know that up to six weeks of that time would be paid through EDD’s Paid Family Leave program?

Moms and dads: Knowing that, will you take the maximum job-protected leave allowed to you? No? How about the maximum amount of leave that is paid? Why not?

I have asked dozens of new parents these questions. Most have told me that they did not know what their leave rights were and, upon learning of them, that they would still not take off the full amount of time allowed. I have heard similar responses when speaking to people about taking time off from work to care for sick relatives.

From my experiences as both a practicing employment lawyer for nearly a decade and a mom engaged in the parenting community, I’ve learned that there are four major barriers to employees taking time off from work to bond with their baby or to care for a seriously ill family member:

1. that the leave they seek is not job protected because they do not work for a large-enough employer, do not meet eligibility requirements, or the person cared for is outside the scope of the leave laws;
2. that they cannot financially afford to take the time off from work;
3. lack of knowledge, as many people who are entitled to and can take leave don’t know what their leave rights are; and
4. even when employees know about their allowed leave and can afford to take it, that they are too afraid to do so for fear that it will derail their careers.

If we as a society truly value care work, we must confront each of these barriers. Otherwise, how can we raise our children, care for our elderly, and tend to our sick? Over the course of the next few weeks, I will address each of these barriers, what has been done about them, and what can still be done. In this post, I will address the first barrier: the lack of job-protected leave for many caregiving workers.

Protected Leave Available to California Workers

“Workers should not have to choose between the job they need and the family members they love and who need their care.”

Amen to this statement, made by then-Acting Secretary of Labor Seth Harris in a February 2013 press release commemorating the 20th anniversary of the landmark federal Family and Medical Leave Act of 1993 (FMLA).

It is clear that the first step toward enabling workers to care for their families is to allow them job-protected leave when that need arises. Through the hard work of advocates within California and nationally, significant legislation has been passed in the last two decades. Among them are the FMLA, the California Family Rights Act (CFRA), the Pregnancy Disability Leave Law (PDLL), and California’s Kin Care law, Labor Code Section 233.

In a nutshell:

• The FMLA guarantees up to 12 weeks of unpaid leave per year to qualifying employees for family and medical leave.[3] It applies only to large employers (public employers and those private ones with at least 50 employees within 75 miles of the work site) and only to employees who meet the eligibility requirements (including having worked at least one year for the employer and 1250 hours in the preceding 12 months).
• CFRA also provides for up to 12 weeks of leave, with coverage is similar to that of the FMLA with some exceptions, including that it specifically excludes pregnancy.
• California’s Kin Care law, Labor Code Section 233, permits employees to use up to half of the sick leave that they accrue annually to take job-protected time off to care for a sick spouse, domestic partner, child, or parent. It applies to all employees and there are no eligibility requirements. [Update:CFRA was expanded in 2020 with Senate Bill 1383. It now applies to employers with five or more employees — there is no longer a 50-employee requirement. ]
• California’s PDLL provides up to four months of job-protected leave for employees disabled by pregnancy, child birth, or related conditions. It applies to those working for employers with five or more employees, and there are no other eligibility requirements for the worker.

CFRA and FMLA generally overlap, except where one provides coverage and the other doesn’t (such as where pregnancy disability is involved). In that case, pregnancy disability leave (PDL) runs concurrently with FMLA leave, but CFRA runs consecutively with it, so that an employee can get an additional 12 weeks of baby bonding time after their PDL ends. What this means is that a California employee who is covered by PDL, CFRA, and FMLA can get nearly seven months of leave as she first exhausts her 4 months of PDL leave for her own pregnancy and child-birth related conditions, and then takes the next 12 weeks as CFRA time to bond with her baby. The Kin Care law runs concurrently as applicable.

Ways We Can Provide Greater Job Protections to Workers Taking Family Leave

While the FMLA, CFRA, PDLL, and Kin Care law provide solid protection to covered workers, more can and should be done. Expansion of job protected leave is being targeted in three ways:

1. Expanding the coverage of the FMLA/CFRA to more workers–either by applying FMLA/CFRA to smaller employers (that is, lowering the required number of employees within the geographic region) or altering the minimum employment durations or hours requirements; [Update: CFRA was expanded in 2020 to cover smaller employers!]
2. Expanding the scope of the FMLA/CFRA to cover care for different types of family members–including grandparents, grandchildren, siblings, and in-laws [Update: CFRA was expanded in 2020 and 2021 to cover these relationships.]; and
3. Providing job protection for other types of caregiving and familial needs.

1. Expanding the Coverage of FMLA/CFRA to More Workers [Update: Done!]

Only 59% of employees nationally are covered by the FMLA and, before CFRA’s expansion, 63% of California employees were covered by CFRA. Before CFRA’s expansion, for many workers, the leave they seek is not job protected because they do not work for a large-enough employer. For others, it is because they have not worked the requisite amount of time or hours for the employer before requesting such leave.

Efforts have been made both with respect to the FMLA and CFRA to expand worker eligibility. Part of the Obama-Biden Plan in 2008 was to seek to expand the FMLA to cover businesses with 25 or more employees as well as broadening its scope to cover additional types of care work such as elder care. Legislative efforts at the federal level have thus far unsuccessfully attempted to expand the FMLA’s coverage accordingly. For example, H.R. 1440, Family and Medical Leave Enhancement Act of 2011, H.R. 1440 (Maloney) sought to expand FMLA coverage to employers with 25 or more employees, while H.R. 389, Family Fairness Act of 2009 (Baldwin) sought to amend the FMLA to eliminate the 1,250 hours of service requirement, making employees eligible if they have been employed for at least 12 months by their covered employer. In California, legislation was introduced in 1999/2000 to lower the threshold of CFRA coverage to employers with 20 employees or more employees. Such a change would have expanded CFRA coverage to 72% of employees.

2. Expanding the Scope of the FMLA/CFRA to Cover Care for Other Family Members [Update: Done!]

A second way to enable familial caregiving by workers is by legally recognizing that our families include not only our parents, spouses, domestic partners, and minor children, but also grandparents, grandchildren, grown children, siblings, and in-laws. Efforts have been made to expand the scope of CFRA over the years. However, thus far, these efforts to allow for protected leave to care for grandparents, grandchildren, grown children, and in-laws have not succeeded. For example, SB 1149 (Speier), introduced in 1999, sought to expand CFRA coverage to care for a sibling, grandparent, or domestic partner, but was vetoed by then-Governor Gray Davis. Most recently, AB 2039 (Swanson) would have permitted protected leave for care of a seriously ill adult child, parent-in-law, grandparent, sibling, grandchild, or domestic partner, but was held in committee. However, there is promise that such a law will be passed. SB 770 (Jackson), which expanded paid family leave through EDD to cover care for grandparents, grandchildren, siblings, and in-laws, was signed into law by Governor Brown on September 24, 2013. With this success, expanding CFRA in the same way is the logical (and just) next step.

3. Providing Job Protection for Other Types of Caregiving and Familial Needs

While this area of action is somewhat outside the scope of this posting, it is worth mentioning that other types of leave are within our legislative sights, such as bereavement leave. SB 549 (Corbett), vetoed in 2007 by then-Governor Schwarzenegger, would have required an employer to provide up to four days of bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner. Similarly, AB 325 (Lowenthal) would have allowed employees to take up to three days of bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner. It was vetoed by Governor Brown in October 2011, but remains on the action agenda.

The Argument Against Expanding Job Protections Has Been Made… And Disproven

Pro-business advocates and conservatives assert that laws to expand job protections to workers taking leave would be “job killers.” Yet, these pro-business groups and politicians said the same about the FMLA itself. Time has shown that the FMLA has been a tremendous benefit to workers and to society as a whole, with little detrimental impact on employers. For example, according to the findings of a 2012 survey by the Department of Labor (summarized in its Fact Sheet), 91% of employers report that complying with the FMLA has had either a positive effect or no noticeable effect on employee absenteeism, turnover and morale. In addition, 90 percent of workers return to work for their employer after FMLA leave. (Source: DOL press release.) Furthermore, several states have their own successful FMLA analogues with protection for employees in smaller workplaces, suggesting that expansion of the FMLA nationally or CFRA in California would similarly succeed.

Conclusion

While we have made tremendous advances in providing job-protected leave, there is much more to be done to cover more California employees and to account for the fact that families rely on working grandparents, grandchildren, siblings, and in-laws for care. Next week I will discuss the next barrier that workers face when taking family leave, the financial hardship of lost wages, and the paid family leave that is available to ease some of that hardship.

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[1] This would include up to four months of pregnancy disability leave for women who work at companies with five or more employees (under California’s Pregnancy Disability Leave Law) in addition to 12 weeks of baby bonding time for eligible employees who work at companies with 50 or more employees (under the California Family Rights Act). Note that with a normal pregnancy and childbirth recovery, the mom will not be “disabled” the full four months; more likely, she will take some PDL during her pregnancy, along with an additional 6 weeks post-birth for a vaginal delivery or 8 weeks post-birth for a c-section.

[2] The first portion would be paid as disability leave then the rest would be paid family leave.

[3] Here I focus only on family leave, not leave for a worker’s own medical condition or to care for an injured service member.