Women’s Roles in the Workplace Evolve: Leave of Absence Rules Become More Family-Friendly

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Reflecting a fundamental increase of women in the workplace in the last 10 years, a variety of state and federal laws now mandate that an employer provide time off to employees for medical reasons, including to care of ill or injured family members, to bond with newborn or adopted children, to participate in children’s school activities and on account of pregnancy disability. These laws are often confusing and overlapping. Some of the more basic information regarding leave of absence requirements is outlined below.


Family and Medical Leave

Generally, companies with 50 or more employees must provide 12 weeks of unpaid leave to employees who have been with the company for more than one year for any of the following reasons:

–the birth or adoption of a child (or the addition of a foster child);

–to care for a seriously ill spouse, child, or parent; or

–to care for their own serious health condition. (Short-term minor injuries and illness are not covered as serious health conditions.)

This leave is mandated under both the California Family Rights Act (“CFRA”) and the federal Family Medical Leave Act (“FMLA”). Although family and medical leave is unpaid, under certain circumstances, employers may require (or the employee may elect), to use paid vacation or personnel time off to maintain income during the leave period. In addition, health insurance for the employee will be continued during family leave in the same manner as if the employee were actively working. When an employee takes leave for a health reason, the leave can be taken intermittently or in less than full day increments. When the leave is over, the employee must usually be reinstated to the same or equivalent position. There are some exceptions in which any employer can deny reinstatement on the basis of financial hardship to a “key” employee. This key employee status applies only to those employees who are among the highest paid ten percent of all employees within 75 miles of their work place.


Pregnancy Disability Leave

There is a distinction between the leave discussed above under CFRA and FMLA for both men and women to take time off from work to bond with a child and the available to women before the birth of a child for pregnancy disability.

In California, companies that employ five or more employees must allow up to four months leave whenever, in the opinion of her health care provider, a pregnant employee cannot work at all or cannot perform the essential functions of her job without undue risk to herself, the successful completion of her pregnancy, or to other persons. Although the law specifically provides for pregnancy disability leave of up to four months, employers may have to provide additional leave time if an employer provides leaves of absences greater than four months for other disabilities.

Employers must provide the same benefits for pregnant employees as to otherwise disabled employees. In addition, if a pregnant employee requests a transfer to another position based on her health care provider’s certification that the transfer is medically advisable, the employer must grant the request if possible, although the employer is not required to create another job or displace another employee.

During the period of pregnancy disability leave, an employee is entitled to:

–receive State Disability Insurance benefits;

–use any accrued vacation time during the otherwise unpaid leave period;

–accrue seniority and participate in health plans and other benefit and retirement plans to the same extent as would apply to any other unpaid disability leave; and

–be reinstated to the same or comparable position upon her timely return to work.

Under California law, an employee is entitled to pregnancy disability of up to four months on account of any pregnancy related disability and, upon the birth of the child, to an additional 12 weeks of family leave to care for the newborn child.


Time Off to For School Visits

An employer with 25 or more employees must permit its employees to take up to 40 hours each school year (but not more than eight hours a month), to participate in school activities of a child. This leave is available to a parent, guardian or grandparent having custody of a child in kindergarten to 12th grade. All employers must permit an employee whose child has been suspended from school time off to meet with school officials. The employee must give reasonable notice of these activities and may be required to use vacation, personal leave, or compensatory time off for these purposes. An employer may require written proof that the employee participated in school activities.


Understanding Obligations

Companies must understand their leave obligations and implement policies that comply with the myriad of state and federal laws that regulate employee leaves of absence. Violations of employee rights to take leaves and reinstatement upon their return from leaves of absence can lead to lawsuits and other penalties. Employers are therefore urged to consult their labor and employment counsel for help in setting and implementing their leave policies.

Margaret Rosenthal and Steven Prough are part of the Labor and Employment Practice Group at Jenkens & Gilchrist,LLP. Ms. Rosenthal can be reached at [email protected], and Mr. Prough at [email protected].

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