Tag Archives: FMLA

More New Parents Have Access to Job-Protected Leave in California

Late last week, California Governor Jerry Brown signed a bill into law that will expand job-protected leave for new parents. Over 2.5 million California employees will now have the right to be reinstated to their jobs after taking up to 12 weeks of unpaid bonding leave. The law takes effect on January 1, 2018.

Until now, only employees who worked for employers with 50 or more employees could be eligible for job-protected leave to bond with a new child in California. Employees who worked for smaller employers could still receive paid family leave benefits from the state when taking time off for these purposes, but they did not have the right to job reinstatement when their leave was over.

The new law, called the New Parent Leave Act, requires employers with between 20 and 49 employees to provide up to 12 weeks of job-protected leave each year to bond with a new child. At the end of their leave, employees must be reinstated to the same job or a comparable one. They also have the right to continued group health care coverage during their leave.

Employees must meet the same eligibility requirements under the FMLA and the California Family Rights Act (CFRA): The employee must have worked for the employer for at least 12 months, have worked at least 1,250 hours in the year prior to the claim, and work at a location where the employer has at least 20 employees in a 75-mile radius.

The New Parent Leave Act extends job-protected leave only to employees who are taking family and medical leave to bond with a child arriving by birth, adoption, or foster placement. It doesn’t apply to employees taking FMLA or CFRA leave for their own serious health conditions or to care for a family member with a serious health condition. Those employees must still work for an employer with at least 50 employees in order to take job-protected leave.

San Francisco Becomes First City to Provide Fully Paid Parental Leave

Earlier this weeFamily Leavek, San Francisco became the first city to require private employers to provide paid parental leave to their employees. The law is the first of its kind; no other federal, state, or local law requires employers to fund time off for parents to care for a new child.

California is one of a few states that already provides some paid leave to parents taking leave after the birth or adoption of a child. However, the pay is partial and funded by employee payroll withholdings. California parents can receive 55% of their usual wages (subject to a maximum set by California law) for up to six weeks from the state.

San Francisco’s new law would require private employers in the city with 20 or more employees to make up the 45% difference in wages, so that eligible employees can collect 100% of their wages for six weeks of parental leave.

Employees must meet the following eligibility requirements to qualify for fully paid leave:

The law also includes an anti-retaliation provision, which prohibits employers from taking negative action against employees who exercise their right to paid leave.

The law, which San Francisco Mayor Ed Lee is expected to sign, would be phased-in starting next year. Business with 50 or more employees would need to comply by January 1, 2017, businesses with 35 to 49 employees would need to comply by July 1, 2017, and businesses with 20 to 34 employees would need to comply by January 1, 2018.

New FMLA Regulations Expand Definition of “Spouse” to Include Same-Sex Spouses in All States

LGBT flagLate last month, the Department of Labor issued a final rule that expands the definition of “spouse” for purposes of taking leave under the Family and Medical Leave Act (FMLA). The FMLA is a federal law that requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave to eligible employees for certain medical and caretaking reasons. Among those reasons, employees may take leave to care for a spouse with a serious health condition, care for a spouse seriously injured in the military, or attend to certain needs that arise from a spouse’s call to active military duty.

When the Defense of Marriage Act (DOMA) was still intact, “spouse” was defined as a husband or wife of the opposite sex. However, after the U.S. Supreme Court struck down the the portion of DOMA that defined marriage as between one man and one woman, the DOL revised its regulations. In 2013, the DOL revised the definition of “spouse” to include same-sex couples, but only if they lived in states that recognized same-sex marriages (called a “place of residence” rule).

But, this rule meant that same-sex couples were treated differently under the FMLA depending on what state they lived in. To correct this unequal treatment, the DOL issued a new rule last month to move to a “place of celebration” rule. Under the new rule, a spouse includes a same-sex spouse, as long as the marriage was valid in the place where it was entered into. In other words, as long as the marriage took place in a state that recognizes same-sex marriages, an employee can take leave to care for a same-sex spouse, regardless of what state the employee currently lives in.

A similar rule applies to spouses who were married in foreign county: The marriage must have been valid in the country where it was entered into. But, there’s an additional requirement: The marriage must also be capable of being entered into in at least one state. In other words, if the marriage would have been illegal in all 50 states, the couple will not be considered spouses under the FMLA.

The DOL regulations are scheduled to take effect on March 27, 2015. This means that employers in states that don’t recognize same-sex marriage will need to adjust their company policies. As long as an employee is legally married in any state, the employer will have to provide FMLA leave for the employee to:

  • care for a same-sex spouse with a serious health condition
  • care for a same-sex spouse who suffered a serious injury or illness while on active military duty, and
  • attend to certain needs arising from a same-sex spouse’s call to active military duty.

For more information on the FMLA, check out The Essential Guide to Family and Medical Leave, by Lisa Guerin and Deborah England (Nolo).